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2020 IL App (5th) 170037-U 

NO. 5-17-0037 

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. 13-CF-1560 

 ) 

DEON D. RICE, ) Honorable 

 ) Robert B. Haida, 

 Defendant-Appellant. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE OVERSTREET delivered the judgment of the court. 

 Justices Moore and Boie concurred in the judgment. 

 

 ORDER 

¶ 1 Held: Order dismissing amended petition for postconviction relief affirmed where 

postconviction counsel provided reasonable representation and complied 

 with Supreme Court Rule 651(c) (eff. Feb. 6, 2013). 

¶ 2 The defendant, Deon D. Rice, appeals the December 21, 2016, order of the circuit 

court of St. Clair County that dismissed his amended petition for postconviction relief. For 

the following reasons, we affirm. 

¶ 3 BACKGROUND 

¶ 4 On October 11, 2013, the defendant was charged by information with one count of 

aggravated domestic battery, in violation of section 12-3.3(a) of the Criminal Code of 2012 

NOTICE

This order was filed under 

Supreme Court Rule 23 and 

may not be cited as precedent 

by any party except in the 

limited circumstances allowed 

under Rule 23(e)(1).

NOTICE

Decision filed 03/10/20. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

(Code) (720 ILCS 5/12-3.3(a) (West 2012)) in that on September 25, 2013, the defendant 

knowingly caused bodily harm to Lashonda D. Williams, a family/household member of 

the defendant, by striking her in the face with a baseball bat, causing her nose to break. 

The defendant was further charged in the information with one count of criminal damage 

to property, in violation of section 21-1(a)(1) of the Code (id. § 21-1(a)(1)) in that on 

September 25, 2013, the defendant knowingly damaged property of Lashonda D. Williams, 

namely the windows of her 2003 Buick Rendezvous, without her consent. 

¶ 5 On October 25, 2013, the circuit court ordered the public defender to represent the 

defendant. On November 8, 2013, a preliminary hearing was conducted. There, Darlene 

Diggs testified that she was employed by the East St. Louis police department. Diggs 

indicated that she was involved in the investigation of the aggravated domestic battery and 

criminal damage to property incident involving the defendant. Diggs testified that when 

officers responded to the victim’s 911 call, the victim reported that when she attempted to 

leave the defendant’s residence where she had been residing with him, the defendant came 

out of the house with a bat, broke the windows of her vehicle, and struck her in the face, 

breaking her nose. Diggs testified that the victim advised that the defendant was her 

boyfriend of eight to nine months. At the conclusion of the hearing, the circuit court found 

sufficient probable cause to support the defendant’s arrest that occurred on October 24, 

2013. 

¶ 6 On November 13, 2013, the public defender filed a motion to reduce bond. On 

January 27, 2014, while represented by the public defender, the defendant filed, pro se, a 

motion to reduce bond and a motion to dismiss charges, alleging lack of evidence and 
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ineffective assistance of trial counsel. On January 29, 2014, private counsel, Andrew 

Liefer, entered an appearance on behalf of the defendant. 

¶ 7 On October 27, 2014, the defendant was charged by information with one count of 

domestic battery, subsequent offense, in violation of section 12-3.2(a)(2) of the Code (720 

ILCS 5/12-3.2(a)(2) (West 2012)) in that on September 25, 2013, the defendant knowingly 

made physical contact of an insulting or provoking nature with Lashonda D. Williams in

that he struck her in the face with a baseball bat, and the defendant had previously been 

convicted of domestic battery in the circuit court of Madison County on November 27, 

2011, in case number 11-CF-1560. 

¶ 8 On November 18, 2014, while still represented by private counsel, the defendant 

filed, pro se, a “Motion to Dismiss for Incompetent Witness Testimony.” The defendant 

alleged that the circuit court may dismiss criminal charges when the charges are based 

“solely on the testimony of an incompetent witness.” The defendant further alleged that 

the information charging him “was based solely on the testimony of an angry vindictive 

woman for being rejected in [a] friendship.” Accordingly, the defendant requested the 

circuit court to dismiss the charges against him. 

¶ 9 On November 24, 2014, a plea hearing was conducted in the circuit court. At the 

outset of the hearing, the circuit court referenced the defendant’s pro se motion to dismiss 

and inquired as to whether defense counsel was adopting that motion. Counsel replied that 

he was not. Accordingly, the parties proceeded to present to the court a negotiated plea 

and sentencing agreement. The State indicated that, subject to the approval of the circuit 

court, if the defendant were to plead guilty to count III—domestic battery subsequent 
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offense—the State would recommend a 30-month sentence in the Department of 

Corrections, waive costs and fees, and dismiss counts I and II. The State further indicated 

that it had no objection to the sentence running concurrently with the defendant’s sentence 

in United States District Court docket number 14-CR30016-MJR in the Southern District 

of Illinois. 

¶ 10 The defendant indicated that he understood English, that he understood the abovestated plea bargain, that he had plenty of time to discuss the case with his counsel, and that 

he was satisfied with his counsel’s performance. He denied being under any physical or 

mental disability and denied being on any medication or substance that could affect his 

ability to understand. The circuit court admonished him on the charge and possible 

sentence, as well as the right to trial he was giving up by pleading guilty, all of which the 

defendant indicated he understood. As the factual basis was being read, the defendant 

changed his mind and refused to continue with the plea hearing. The circuit court 

scheduled the matter for a trial to commence on January 5, 2015. 

¶ 11 On December 23, 2014, the State filed, inter alia, a motion to compel discovery, 

requesting, inter alia, a video that the defendant claimed to have in his possession that 

showed Lashonda Williams as the aggressor. On December 30, 2014, a second plea and 

sentencing hearing was conducted. At the outset of the hearing, the circuit court asked the 

defendant if his counsel, Andrew Liefer, had apprised him of his own pending felony 

charges in St. Clair County. The defendant indicated that he was aware of his counsel’s 

criminal charges and had no concern regarding his counsel’s ability to represent him, 

notwithstanding the charges. The circuit court explained to the defendant that his counsel 
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may be investigated by the Attorney Registration and Disciplinary Commission. The 

defendant acknowledged the same and persisted to proceed with the plea hearing. 

¶ 12 Pursuant to the plea agreement, the State indicated that the defendant would be 

pleading guilty to count III, domestic battery subsequent. The State would dismiss counts 

one and two in exchange for the plea. Subject to the circuit court’s approval, the State 

would recommend a sentence of 28 months in the Department of Corrections, to run 

concurrently with the defendant’s sentence in United States District Court docket number 

14-CR30016-MJR in the Southern District of Illinois, with four years of mandatory

supervised release. The State explained that the defendant had already served 14 months 

because he never bonded out of St. Clair County jail. Accordingly, he would be required

to serve 14 additional months and would automatically be transferred to federal custody 

upon approval of the sentence by the circuit court. The circuit court observed that, 

notwithstanding the 14 months already served, there is a statutory 61-day turnaround at the 

Department of Corrections upon sentencing. The circuit court advised the defendant that 

attempts would be made to effectuate the 61 days to be served concurrently with the federal 

sentence but indicated that there was no absolute guarantee that would happen. 

¶ 13 The defendant indicated that he was under no disability that would affect his 

capacity to understand his decision. He denied taking any medication or substances that 

would affect his ability to understand. He denied having any difficulty understanding the 

discussions he had with defense counsel or the paperwork in his case. He averred that he 

had plenty of time to discuss the plea bargain with his counsel and he was satisfied with 

counsel’s performance. The circuit court set forth the charge and sentencing range, which 
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the defendant indicated he understood. The defendant further assented that he understood 

the trial rights he would be entitled to if he opted to plead not guilty. The defendant 

stipulated to the factual basis presented by the State.

¶ 14 The parties further stipulated to the defendant’s criminal history and waived any 

further presentence investigation and report. The circuit court admonished the defendant 

that he heard the charge against him, the range of sentencing, the factual basis, and the 

rights he was waiving by entering a guilty plea. The defendant stated that he was not 

threatened, promised, or offered anything in exchange for the plea and that he was entering 

the plea freely and voluntarily without any pressure or force. When asked for his plea, the 

defendant replied, “Guilty.” The circuit court found the defendant knowingly, 

understandingly, and voluntarily entered into the plea and sentencing agreement and 

sentenced the defendant to 28 months in the Department of Corrections, with credit for the 

14 months during which he was incarcerated in St. Clair County, to run concurrently with 

the sentence in the federal case. Counts one and two were dismissed. The defendant was 

admonished regarding his appeal rights and the necessities of a motion to withdraw guilty 

plea, which he indicated that he understood. 

¶ 15 On January 5, 2015, the defendant was released to federal custody. On August 17, 

2015, the defendant filed, pro se, a notice of appeal, alleging ineffective assistance of trial 

counsel by Liefer, that he had in his possession a video showing Lashonda Williams as the 

aggressor, and conflict of interest. He also filed a motion to dismiss the charge, which 

contained many of the same allegations as the notice of appeal, and added that he would 

be eligible to participate in the Residential Drug Abuse Program through the Federal 
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Bureau of Prisons if the instant case were resolved in a timely fashion. The defendant also 

filed a motion to dismiss Andrew Liefer as counsel and a motion to dismiss the charge for 

incompetent witness testimony. Counsel was appointed to represent the defendant on 

appeal. On October 26, 2015, appointed appellate defense counsel filed a motion to dismiss 

the appeal, indicating without further explanation that the defendant “has decided to 

dismiss this appeal.” On December 18, 2015, this court entered an order, granting the 

defendant’s motion to dismiss the appeal. 

¶ 16 On January 27, 2016, the defendant filed, pro se, a petition for postconviction relief. 

The petition alleged: (1) counsel failed to provide copies of discovery to him prior to his 

guilty plea; (2) counsel failed to file a motion to dismiss the charge; (3) counsel encouraged 

the defendant to accept a plea agreement that was not supported by evidence; (4) counsel 

did not depose Lashonda Williams; (5) counsel was aware of a doctor who would refute 

Lashonda Williams’s claims but failed to depose the doctor and insisted the defendant 

accept the plea agreement; (6) counsel accepted a retainer fee and payments from Lashonda 

Williams to represent the defendant but did not disclose this to the court or the State; 

(7) counsel knew that Lashonda Williams was visiting the defendant in jail but did not 

disclose this to the State; (8) counsel knew Lashonda Williams was placing money into the 

defendant’s jail commissary account but did not disclose this to the State; (9) counsel knew 

Lashonda Williams was placing money into the defendant’s “Securus Phone Account,” and 

a phone account, but did not disclose this to the State; (10) counsel knew the defendant was 

accepting the plea agreement to get out of the county jail where the defendant believed his 

life was in danger; (11) counsel was aware of a video showing Lashonda Williams as the 
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aggressor but failed to make the State aware of the same; (12) counsel encouraged the 

defendant to accept the plea offer because Lashonda Williams had stopped making 

payments to counsel; (13) counsel failed to advise the defendant that counsel had pending 

felony charges; (14) counsel had a conflict of interest when he was hired by Lashonda 

Williams to represent the defendant and the same was not disclosed to the court or the 

State; (15) counsel was providing representation based solely on what he was paid to do, 

met with the defendant only one time, and told the court on behalf of the defendant that the 

defendant was satisfied with counsel’s performance; (16) counsel did not have a trial 

strategy; (17) counsel was given a flash drive containing a video of LaShonda Williams as 

the aggressor; (18) counsel was aware that the defendant’s truck was sold by the State 

within 45 days of the defendant’s arrest and did not object to the sale; (19) counsel was 

ineffective by allowing the defendant to plead guilty to false information; (20) the 

defendant’s plea was involuntary because counsel was not acting in the defendant’s best 

interest; (21) the defendant’s plea was involuntary because he feared for his life and the 

plea was based upon “the silent record”; (22) the defendant was charged as a result of 

vindictive prosecution; (23) the defendant’s due process rights were violated by a sentence 

that was based on false information; and (24) the circuit court sentenced the defendant 

without the defendant having been provided effective assistance of counsel. 

¶ 17 Also on January 27, 2016, the defendant filed, pro se, a brief in support of his 

petition for postconviction relief, a motion to proceed in forma pauperis, a motion to set 

hearing, a motion for discovery, a petition for court-appointed counsel, a motion to appoint 

counsel, and a motion to proceed pro se until counsel is appointed. On February 10, 2016, 
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the circuit court entered an order appointing P.K. Johnson IV as postconviction counsel to 

represent the defendant and docketing the matter for second-stage proceedings. 

¶ 18 Notwithstanding the appointment of postconviction counsel, on February 18, 2016, 

the defendant filed pro se, an amended petition for postconviction relief and a motion for 

leave to file the same. The amended petition alleged many of the same issues as in the 

original petition, but added the following: (1) the defendant suffered from diabetic 

neuropathy while at the St. Clair County jail but received no treatment; (2) the defendant 

had suffered from diabetes for 15 years. The jail was initially providing evening snacks to 

diabetics, but ceased providing the snacks, resulting in the defendant adjusting his sleep 

schedule for fear that he would suffer a diabetic coma in his sleep after evening lockdown; 

(3) the defendant contracted a cold and reported it to medical staff. A nurse gave the 

defendant a “cocktail” that worsened his illness and caused a headache for three days; 

(4) jail inmates with Hepatitis C cut themselves shaving in bathrooms that were shared 

with other inmates and there was no available disinfectant to clean with prior to using the 

bathrooms; (5) the defendant contracted a staph infection at the jail with no antibiotics 

prescribed; (6) the defendant was in a cell with feces coming out of a floor drain with no 

disinfectant to clean with, of which defense counsel was aware; and (7) five inmates died 

in the jail unexpectedly, causing the defendant to fear for his life and safety, of which 

defense counsel was aware and used the information to induce the defendant to accept the 

plea bargain. 

¶ 19 Also on February 18, 2016, notwithstanding that he was represented by 

postconviction counsel, in addition to the pro se amended postconviction petition, the 
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defendant filed the following additional pro se pleadings: a motion for court order, 

requesting the circuit court to order Dr. Larry Dobbs to have documents regarding 

Lashonda Williams’s medical treatment mailed to the defendant; a belated motion to 

withdraw plea; a motion to set hearing on his belated motion to withdraw plea; an entry of 

appearance for himself; and a motion to proceed in forma pauperis. 

¶ 20 On February 22, 2016, the defendant, still represented by postconviction counsel, 

filed the following additional pro se pleadings: a motion for court order, requesting the 

circuit court to enter an order directing the State to have a 911 recording transcribed and 

mailed to the defendant; an addendum containing more issues to add to the amended pro se 

petition for postconviction relief; a motion for court order, requesting the circuit court to 

enter an order directing the State to forward a copy of all discovery documents to the 

defendant; a motion to set aside ruling, indicating that “at this point, counsel is not needed 

and moves the court to either delay ruling on the motions to appoint counsel or if the court 

has already ruled on them, to set aside the ruling”; a motion for court order, requesting the 

circuit court to enter an order directing the Fayette County jail to provide the defendant 

with certain documents; a motion for court order, requesting the circuit court to enter an 

order directing the State to provide the defendant with certain items of discovery; a motion 

for court order, requesting the circuit court to enter an order directing the St. Clair County 

jail to provide the defendant with certain items of discovery; and a first set of 

interrogatories directed to Dr. Larry Dobbs. 

¶ 21 On February 24, 2016, the defendant—still represented by postconviction 

counsel—filed, pro se, a motion for continuance, indicating that “appointed counsel is not 
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necessary at this point” but that “appointed counsel is need[ed] for [the defendant’s] belated 

motion to withdraw plea.” The motion further indicated that the defendant’s family “is 

trying to hire private counsel, which means [the defendant] will go pro se [sic] until such 

time.” On March 1, 2016, the circuit court denied the defendant’s motion to withdraw 

guilty plea as untimely. The same day, the circuit court issued an order of continuance, 

referencing the defendant’s motion for continuance, indicating that postconviction counsel 

had been appointed, and directing postconviction counsel to meet with the defendant to 

determine if he wished to proceed pro se. Also, on March 1, 2016, the defendant filed, 

pro se, additional first sets of interrogatories directed at trial counsel Andrew Liefer, 

Charlene Diggs—who investigated the domestic battery incident in response to Lashonda 

Williams’s 911 call, and the defendant’s son, Deon Rice Jr. 

¶ 22 On March 4, 2016, the defendant filed, pro se, a petition for recusal of judge and 

prosecutor, alleging that he could not receive a fair hearing from a local judge because of 

the allegations of judicial misconduct and vindictive prosecution in the pro se amended 

petition for postconviction relief. Accordingly, the defendant requested a judge and 

prosecutor from outside St. Clair County. On the same date, the defendant filed, pro se, an

entry of appearance for himself and a motion for court order, requesting the circuit court 

to recognize that the defendant wished to proceed pro se but also requested postconviction 

counsel to be appointed as stand-by counsel. 

¶ 23 On March 10, 2016, the State filed a motion to dismiss the original pro se petition 

for postconviction relief. The State contended that the petition’s allegations of ineffective 

assistance of counsel were not supported by the record, affidavits, or other evidence. On 
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April 13, 2016, the circuit court entered an order, granting the defendant 90 days to file an 

amended petition and granting the State 30 days thereafter to file a response. 

¶ 24 On July 21, 2016, the defendant’s appointed, postconviction counsel filed an 

amended petition for postconviction relief. The amended petition alleged that the 

defendant was denied effective assistance of trial counsel for the following reasons: 

(1) counsel failed to provide a copy of discovery materials to the defendant; (2) counsel 

only visited with the defendant one time prior to the plea; (3) counsel failed to file a motion 

to dismiss upon discovering that no relationship existed between the defendant and 

Lashonda Williams, therefore resulting in insufficient evidence to support the charge of 

domestic battery; (4) counsel encouraged the defendant to accept a plea for a charge that 

was not supported by the evidence; (5) counsel stipulated to a factual basis which was false 

and did not represent evidence that would have been presented at trial; (6) counsel failed 

to investigate the defendant’s claims, including failure to depose Lashonda Williams, 

failure to contact Lashonda Williams’s doctors, and failure to obtain Lashonda Williams’s 

medical records; (7) counsel failed to disclose evidence to the State, indicating that 

Lashonda Williams was the aggressor; (8) counsel was aware that the defendant was fearful 

for his life and safety in the county jail and was pleading guilty as a means to be removed 

from the county jail; (9) counsel understood that the defendant was afraid and therefore 

wished to plead guilty out of fear; (10) counsel misinformed and misled the defendant 

during plea negotiations by advising the defendant that the sentence in the instant case 

would run concurrently with the sentence in the federal case and that he would receive 

credit for his federal charge for the time served in the county jail; (11) counsel failed to 
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advise the defendant of the effect that a guilty plea could have on his federal charge; 

(12) counsel failed to inform the defendant that counsel had his own pending felony 

charges; (13) counsel failed to preserve the defendant’s right to a trial by pressuring the 

defendant to accept the plea agreement, although the defendant maintained his innocence 

and his desire to proceed to trial; (14) counsel misled the defendant to plead guilty and the 

defendant was without sufficient funds to continue paying counsel to work on the case or 

to secure another paid attorney; (15) counsel failed to review applicable law, conduct 

meaningful discovery, file motions, and be sufficiently informed about the case to 

adequately advise the defendant; (16) counsel failed to preserve the defendant’s right to 

trial and right to appeal by failing to follow the defendant’s instructions to file a motion to 

withdraw the guilty plea and proceed with trial; and (17) counsel failed to preserve the 

defendant’s rights by failing to present a self-defense claim or a justifiable use of force 

claim, and failed to assert that the defendant was not engaged in a domestic relationship 

with Lashonda Williams. 

¶ 25 The amended postconviction petition further alleged that the defendant was denied 

due process for the following reasons: (1) the defendant was under a great deal of stress 

and was not thinking clearly at the time the plea was entered; (2) the defendant was fearful 

for his life and safety at the county jail, causing the defendant to involuntarily enter the 

plea; (3) the defendant’s plea was submitted while the defendant was under threat and 

duress and, accordingly, the defendant was not afforded the opportunity to waive his rights 

to due process, to consult with a lawyer, to effective assistance of counsel, to a trial by jury, 

and to knowingly and intelligently waive his right to a trial by jury; (4) the defendant’s plea 
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was submitted to the court while the petitioner was under threat and duress and, 

accordingly, the defendant did not knowingly and voluntarily enter into the plea; and 

(5) the factual basis was insufficient as a matter of law because the defendant and Lashonda 

Williams were not and had never been in a domestic relationship. 

¶ 26 Counsel’s amended postconviction petition omitted the conflict of interest claim

that the defendant had alleged in his pro se petition. Counsel’s amended petition asserted 

that “additional affidavits are not attached hereto due to the nature of the points raised 

herein.” The defendant signed his name at the foot of the amended petition, swearing that 

the facts in the amended petition were true and correct in substance and in fact. The 

defendant requested in the amended postconviction petition that his conviction and 

sentence be set aside “to correct a manifest injustice” or, in the alternative, that the sentence 

be reduced. 

¶ 27 On August 19, 2016, the State filed a motion to dismiss the amended petition for 

postconviction relief. On November 3, 2016, at the hearing on the motion to dismiss, the 

State indicated that the defendant failed to attach affidavits to support the claims in the 

amended petition. Defense counsel responded that he used the particular statement that he 

did to explain the absence of affidavits “because really the only person that can testify to 

these things is the petitioner.” The circuit court took the matter under advisement. Also 

on November 3, 2016, postconviction counsel filed a Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. 

Feb. 6, 2013)) certificate of compliance. On December 21, 2016, the circuit court entered 

an order granting the State’s motion to dismiss the amended petition for postconviction 

relief. The circuit court held that “[t]he record of the plea refutes the defendant’s claims 
15 

regarding his counsel’s performance. The record also refutes his claim of coercion, in that, 

he denied that he was being coerced or threatened to plead guilty at the time of his plea.” 

The defendant filed a timely notice of appeal. 

¶ 28 ANALYSIS 

¶ 29 On appeal, we must determine whether postconviction counsel provided reasonable 

representation by substantially complying with Illinois Supreme Court Rule 651(c) (eff. 

Feb. 6, 2013). The defendant raises the following sub-issues to that regard: (1) whether 

postconviction counsel filed a proper certificate asserting that he fully complied with Rule 

651(c), (2) whether postconviction counsel arranged the allegations of the amended 

postconviction petition in proper legal form by supporting them with affidavits and other 

documents, and (3) whether postconviction counsel raised frivolous claims that were 

refuted by the record. “We review de novo both the trial court’s dismissal of [a] 

postconviction petition without an evidentiary hearing [citation] and the interpretation of a 

supreme court rule, including whether counsel fulfilled his duties under Rule 651(c) 

[citation].” People v. Bass, 2018 IL App (1st) 152650, ¶ 13. 

¶ 30 I. Reasonable Representation 

¶ 31 Postconviction petitions are governed by the Post-Conviction Hearing Act (Act) 

(725 ILCS 5/122-1 et seq. (West 2016)). The Act “provides a remedy for defendants who 

have suffered a substantial violation of their constitutional rights at trial.” People v. 

Edwards, 197 Ill. 2d 239, 243-44 (2001). “Under the Act, a post[ ]conviction proceeding 

not involving the death penalty contains three stages.” Id. at 244. “At the first stage, the 

trial court independently assesses a defendant’s petition, and if the court determines that 
16 

the petition is frivolous or patently without merit, the court can summarily dismiss it.” 

(Internal quotation marks omitted.) People v. Little, 2012 IL App (5th) 100547, ¶ 12. “A 

post[ ]conviction petition is considered frivolous or patently without merit only if the 

allegations in the petition, taken as true and liberally construed, fail to present the ‘gist of 

a constitutional claim.’ ” Edwards, 197 Ill. 2d at 244 (quoting People v. Gaultney, 174 Ill. 

2d 410, 418 (1996)). 

¶ 32 “If the petition is not summarily dismissed at the first stage, *** the petition moves 

to the second stage ***, where counsel is appointed to represent the defendant and amend 

[the] postconviction claims.” People v. Marshall, 375 Ill. App. 3d 670, 679-80 (2007). 

The State may also move to dismiss the petition at the second stage. See Little, 2012 IL 

App (5th) 100547, ¶ 12. “At the second stage, ‘[t]he inquiry into whether a post-conviction 

petition contains sufficient allegations of constitutional deprivations does not require the 

circuit court to engage in any fact-finding or credibility determinations. ” People v. 

Dupree, 2018 IL 122307, ¶ 29 (quoting People v. Coleman, 183 Ill. 2d 366, 385 (1998)). 

“The Act contemplates that such determinations will be made at the evidentiary stage, not 

the dismissal stage, of the litigation.” Id. “In addition, at the second stage, the circuit court 

examines a postconviction petition to determine its legal sufficiency, and any allegations 

not affirmatively refuted by the record must be taken as true.” Id. If a substantial showing 

of a constitutional violation is made, the petition advances to the third stage for an 

evidentiary hearing. See Little, 2012 IL App (5th) 100547, ¶ 12. 

¶ 33 A defendant has no constitutional right to counsel in postconviction proceedings. 

See People v. Cotto, 2016 IL 119006, ¶ 29. Rather, a defendant’s right to postconviction 
17 

counsel is “ ‘a matter of legislative grace.’ ” Id. (quoting People v. Hardin, 217 Ill. 2d 289, 

299 (2005)). “Because the right to counsel in post-conviction proceedings is wholly 

statutory [citation], post[ ]conviction petitioners are entitled only to the level of assistance 

provided by the *** Act.” People v. Turner, 187 Ill. 2d 406, 410 (1999). “It is well settled 

that the Act requires counsel to provide a ‘reasonable level of assistance’ to [the] petitioner 

in post[ ]conviction proceedings.” Id. (quoting People v. Owens, 139 Ill. 2d 351, 364 

(1990)). “[T]he reasonable level of assistance provided for by the Act is ‘less than that 

afforded by the federal or state constitutions.’ ” Cotto, 2016 IL 119006, ¶ 45 (quoting 

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

¶ 34 Postconviction counsel must perform specific duties in the circuit court, as set forth 

in Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). People v. Greer, 212 Ill. 2d 192, 

204-05 (2004). “Rule 651(c) requires that the record in postconviction proceedings 

demonstrate that appointed counsel ‘has consulted with [the] petitioner either by mail or in 

person to ascertain his contentions of deprivation of constitutional rights, has examined the 

record of the proceedings at trial, and has made any amendments to the petitions filed 

pro se that are necessary for an adequate presentation of [the] petitioner’s contentions.’ ” 

Id. at 205 (quoting Ill. S. Ct. R. 651(c)). “Substantial compliance with Rule 651(c) is 

sufficient.” People v. Profit, 2012 IL App (1st) 101307, ¶ 18. 

¶ 35 A. Illinois Supreme Court Rule 651(c) Certificate 

¶ 36 In determining whether postconviction counsel provided reasonable representation

by substantially complying with Supreme Court Rule 651(c) (eff. Feb. 6, 2013), the 

defendant raises the issue of whether a proper certificate was filed, asserting compliance
18 

with the rule. “The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption 

that postconviction counsel provided reasonable assistance.” Profit, 2012 IL App (1st) 

101307, ¶ 19. “It is [the] defendant’s burden to overcome this presumption by 

demonstrating his attorney’s failure to substantially comply with the duties mandated by 

Rule 651(c).” Id. 

¶ 37 In this case, postconviction counsel filed a Rule 651(c) certificate, thereby creating 

a presumption that the defendant was provided reasonable assistance. See id. However, 

the defendant argues that there is evidence to rebut that presumption. He alleges that

although the certificate was filed, it did not assert that counsel had examined the record of 

the proceedings at trial, but only that he had examined the “entire record of proceedings of 

the plea of guilty and sentencing.” Accordingly, the defendant contends that, because 

counsel failed to file a certificate contending that he had fully complied with Rule 651(c), 

this case must be remanded for new second-stage proceedings with the appointment of new 

counsel. 

¶ 38 In response, the State indicates that, presumably, the defendant is arguing that the 

certificate does not comply because it does not utilize the exact wording of “the record of 

the proceedings at the trial.” See Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). However, “Rule 

651(c) only requires postconviction counsel to examine as much of the record ‘as is 

necessary to adequately present and support those constitutional claims raised by the 

petitioner.’ ” Pendleton, 223 Ill. 2d at 475 (quoting People v. Davis, 156 Ill. 2d 149, 164 

(1993)). 
19 

¶ 39 The State aptly emphasizes that there was no trial in this case, as the conviction 

resulted from the defendant’s guilty plea. Accordingly, because there was no trial, there 

was no need for counsel to review “the record of the proceedings at the trial.” Moreover, 

notwithstanding any issues with the wording of the certificate, the record evinces that 

postconviction counsel reviewed more than just the guilty plea and sentencing proceedings, 

as the amended petition modified the defendant’s earlier filed pro se petition, including 

some of the pro se claims and excluding others, which necessarily required examination 

and review of portions of the record besides the plea and sentencing proceedings. For these 

reasons, we find that counsel’s certificate substantially complied with Rule 651(c) and that 

the defendant failed to rebut the presumption that counsel provided reasonable assistance 

to that regard. See Turner, 187 Ill. 2d at 410. 

¶ 40 B. Amended Postconviction Petition

¶ 41 The next issue raised by the defendant in determining whether postconviction 

counsel provided reasonable representation by substantially complying with Rule 651(c) is 

whether the allegations of the amended postconviction petition were arranged in 

appropriate legal form by having attached to the petition affidavits and other documents. 

“The purpose of [Rule 651(c)] is to ensure that postconviction counsel shapes the 

defendant’s claims into a proper legal form and presents them to the court.” Profit, 2012 

IL App (1st) 101307, ¶ 18. Under the Act, “[t]he petition shall have attached thereto 

affidavits, records, or other evidence supporting its allegations or shall state why the same 

are not attached.” 725 ILCS 5/122-2 (West 2016). 
20 

¶ 42 Here, the defendant contends that postconviction counsel failed to support the 

allegations of the amended petition by attaching affidavits or other documentation to 

support the amended petition and failed to provide an explanation for the absence of the 

same. This is incorrect. Postconviction counsel asserted at the foot of the amended 

postconviction petition “[t]hat additional affidavits are not attached hereto due to the nature 

of the points raised herein.” Moreover, affidavits were discussed at the hearing on the 

motion to dismiss. The State indicated that affidavits were lacking to support the claims 

in the amended petition. Postconviction counsel responded that he used the particular 

statement that he did to explain the absence of affidavits “because really the only person 

that can testify to these things is the petitioner.” 

¶ 43 The defendant argues that “[r]easonable assistance of counsel requires more than 

typesetting and the addition of a sentence indicating that ‘additional affidavits are not 

attached hereto due to the nature of the points raised herein.’ ” Notably, the defendant cites 

no authority to support this claim and we find that postconviction counsel substantially 

complied with the Act and Rule 651(c) by including in the amended petition the 

explanation for the absence of affidavits. 

¶ 44 Notwithstanding our finding of substantial compliance and assuming, arguendo,

that no explanation for the absence of affidavits was included in the petition, we observe 

that “the purpose of section 122-2 is to show a defendant’s postconviction allegations are 

capable of objective or independent corroboration.” People v. Hall, 217 Ill. 2d 324, 333 

(2005). “Failure to attach independent corroborating documentation or explain its absence 

may, nonetheless, be excused where the petition contains facts sufficient to infer that the 
21 

only affidavit the defendant could have furnished, other than his own sworn statement, was 

that of his attorney.” Id. 

¶ 45 In this case, regarding the claims of ineffective assistance of trial counsel, the only 

affidavit that could have been provided other than the defendant’s own sworn statement is 

that of trial counsel. This is because all such claims were based on what trial counsel did 

or did not know, what he did or failed to do, and/or what he represented or failed to 

represent. Accordingly, even if postconviction counsel had not provided an explanation 

for the absence of affidavits, such absence would have been excused on this basis. Id. 

Moreover, the Illinois Supreme Court observed that there is no bright-line rule that a court 

should refuse to consider whether a postconviction petition establishes unreasonable 

assistance of counsel simply because an affidavit is not attached to the petition. Dupree, 

2018 IL 122307, ¶ 34. Rather, the supreme court has established that a dismissal of a 

postconviction petition is proper where the allegations in the petition are contradicted by

the record of the proceedings below. Coleman, 183 Ill. 2d at 382. 

¶ 46 Applied here, the circuit court did not grant the State’s motion to dismiss the 

amended petition based on the absence of affidavits, nor did the court reference any 

deficiency in postconviction counsel’s explanation for the absence of affidavits. Rather, 

after taking the matter under advisement, the circuit court entered the order granting the 

State’s motion to dismiss, indicating that “[t]he record of the plea refutes the defendant’s 

claims regarding his counsel’s performance. The record also refutes his claim of coercion, 

in that, he denied that he was being coerced or threatened to plead guilty at the time of his 
22 

plea.” Accordingly, the circuit court dismissed the amended postconviction petition 

because the claims therein were rebutted by the record. See id. 

¶ 47 We agree that the record rebuts the allegations of the amended petition. At the 

plea hearing, the defendant indicated that he was under no disability that would affect his

capacity to understand his decision. He denied taking any medication or substances that 

would affect his ability to understand. He further denied having any difficulty 

understanding the discussions he had with defense counsel or the paperwork in his case. 

He averred that he had plenty of time to discuss the plea bargain with his counsel and he 

was satisfied with counsel’s performance. The circuit court set forth the charge and 

sentencing range, which the defendant indicated he understood. The defendant further 

assented that he understood the trial rights he would be entitled to if he opted to plead not 

guilty. 

¶ 48 The defendant stipulated to the factual basis presented by the State. The circuit 

court admonished the defendant that he had heard the charge against him, the range of 

sentencing, the factual basis, and the rights he was waiving by entering a guilty plea. The 

defendant stated that he was not threatened, promised, or offered anything in exchange for 

the plea and that he was entering the plea freely and voluntarily without any pressure or 

force. When asked for his plea, the defendant replied, “Guilty.” We find the record reflects 

that defendant knowingly, understandingly, and voluntarily entered into the plea and 

sentencing agreement. Accordingly, the allegations of the postconviction petition are 

positively rebutted by the record and dismissal was proper. See id. 
23 

¶ 49 On a final note regarding this issue, in his opening brief on appeal, the defendant 

argued that the amended postconviction petition filed by counsel included the claim that 

trial counsel was possibly under a conflict of interest “for insisting that [the defendant] 

plead guilty while being financially dependent upon Lashonda Williams for payment of 

trial counsel’s fee[s].” This argument is belied by the record, as a review of the amended 

postconviction petition filed by counsel establishes that counsel opted to omit this claim—

which was included in the pro se petition—from the amended petition. 

¶ 50 It is only after the State, in its appellee’s brief, pointed out this omission that the 

defense changed its position in the reply brief, the defense asserted for the first time that 

postconviction counsel provided unreasonable assistance by omitting the conflict of 

interest claim from the amended petition. “It is well settled that issues raised for the first 

time in the appellant’s reply brief shall be deemed waived on appeal.” People v. Brownell, 

123 Ill. App. 3d 307, 319 (1984). However, waiver is a limitation on the parties and not 

on the court. See People v. Daniels, 307 Ill. App. 3d 917, 926 (1999). Accordingly, waiver 

notwithstanding, we opt to address this issue. 

¶ 51 Under the Act, at the first stage of postconviction proceedings, the circuit court 

independently reviews the petition, taking the allegations as true, to determine whether the 

petition is frivolous and patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). 

Here, the defendant included the conflict of interest claim in his pro se postconviction 

petition. Accordingly, when the circuit court reviewed the petition, it took that allegation, 

inter alia, as true and docketed the matter for second-stage proceedings. 
24 

¶ 52 To reiterate, at the second level of postconviction proceedings, under Rule 651(c), 

postconviction counsel must demonstrate that he “has consulted with [the] petitioner either 

by mail or in person to ascertain his contentions of deprivation of constitutional rights, has 

examined the record of the proceedings at trial, and has made 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. Feb. 6, 2013). “The filing of a Rule 651(c) 

certificate gives rise to a rebuttable presumption that postconviction counsel provided 

reasonable assistance.” Profit, 2012 IL App (1st) 101307, ¶ 19. “It is [the] defendant’s 

burden to overcome this presumption by demonstrating his attorney’s failure to 

substantially comply with the duties mandated by Rule 651(c).” Id. 

¶ 53 In this case, postconviction counsel filed a Rule 651(c) certificate indicating that he 

had complied with the required duties, thereby creating a presumption that the defendant 

was provided reasonable assistance. See id. As we already observed, the defendant failed 

to rebut that presumption. It is not necessary for postconviction counsel to include all 

claims raised in a pro se postconviction petition in the amended petition. See People v. 

Dixon, 2018 IL App (3d) 150630, ¶ 22. Rather, counsel is only required to make any 

amendments to the pro se petition that are necessary for an adequate presentation of the 

defendant’s contentions (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)) and to include claims that 

are not frivolous (Dixon, 2018 IL App (3d) 150630, ¶ 22). See also Pendleton, 223 Ill. 2d 

at 474-75 (if counsel omits pro se petition claim from amended petition, we infer that he 

decided not to pursue the claim). 
25 

¶ 54 In this case, we find that it was not unreasonable for postconviction counsel to 

exclude the conflict of interest claim from the amended petition. Rather, we infer that he 

decided to omit this claim after consulting with the defendant and reviewing the record. 

See Pendleton, 223 Ill. 2d at 474-75. It is noteworthy that the defendant asserted a claim 

of conflict of interest in his direct appeal and yet later dismissed his appeal without 

explanation. See People v. Simms, 192 Ill. 2d 348, 364-65 (2000) (claims available but not 

presented on direct appeal are waived). Moreover, the record supports our conclusion that 

postconviction counsel was not unreasonable for excluding the conflict of interest claim. 

At the plea and sentencing hearing, the defendant was given a chance to speak up if he had 

any concerns whatsoever about his trial counsel. He indicated that he was pleased with his 

trial counsel’s performance and had no concerns about his ability to represent him. For 

these reasons, we reject the defendant’s arguments regarding this issue. 

¶ 55 C. Frivolous Claims

¶ 56 Finally, in determining whether postconviction counsel provided reasonable 

representation by substantially complying with Rule 651(c), we consider whether 

postconviction counsel raised frivolous claims that were refuted by the record. The 

defendant argues that postconviction counsel provided unreasonable assistance by raising 

issues in the amended petition that were frivolous and had no merit. 

¶ 57 First, the defendant cites the claim in the amended petition that trial counsel “failed 

and refused to provide a copy of discovery materials to the [defendant] and/or review the 

discovery materials with the [defendant].” The defendant contended in his opening brief 

that this claim is frivolous because, pursuant to Illinois Supreme Court Rule 415(c) (eff. 
26 

Oct. 1, 1971), discovery must stay in the attorney’s exclusive possession. Be that as it may, 

as the State responds, the committee comments for Rule 415(c) indicate that although it is 

mandated for counsel to keep material received in his or her exclusive possession and to 

not furnish copies to the client or let them take it from the office, he or she “will 

undoubtedly have to show it to, or at least discuss it with others.” (Emphasis added.) Ill. 

S. Ct. R. 415(c), Committee Comments (adopted Oct. 1, 1971). 

¶ 58 Applied to this case, the claim in the amended petition complained of by the 

defendant indicates that trial counsel “refused to provide a copy of discovery materials to 

the [defendant] and/or review the discovery materials with the [defendant.]” (Emphasis

added.) Accordingly, although trial counsel may not have been unreasonable by failing to 

provide him with copies of discovery materials, there was the potential for unreasonable 

assistance by failing to review the discovery, which was preserved with the “and/or” 

language. Accordingly, this was not a frivolous claim. Although the defendant raised the 

argument regarding this claim in his opening brief on appeal, after receiving the State’s 

response, he conceded in his reply brief that postconviction counsel appropriately 

presented this claim. 

¶ 59 Next, the defendant cites the claim in the amended petition that trial counsel “failed 

to file a Motion to Dismiss or other proper motion upon discovery of the fact that no 

relationship existed between the [defendant] and the alleged victim and therefore there was 

not sufficient evidence to support a charge of Domestic Battery.” The defendant contends 

that this claim is frivolous because no such motion is colorable on these facts, the existence 

of a domestic relationship between the defendant and Lashonda Williams is an element of 
27 

the charge, and the appropriate mechanism through which such an element is challenged is 

a trial, not a motion to dismiss or other proper motion. We disagree. 

¶ 60 “Formal defects [in a charging instrument] can be corrected on motion by the State’s 

Attorney or the defendant at any time, provided there is no resulting surprise or prejudice 

to the defendant.” People v. Benitez, 169 Ill. 2d 245, 255 (1996). Section 111-5 of the 

Code of Criminal Procedure of 1963 (Code of 1963) governs formal defects in a charge 

and provides a nonexhaustive list of formal defects that may be corrected by motion, one 

of which is any misjoinder of the offense charged. 725 ILCS 5/111-5 (West 2012). 

¶ 61 Moreover, section 114-1 of the Code of 1963 allows a motion to dismiss a charge 

“(a) [u]pon the written motion of the defendant made prior to trial before or after a plea has 

been entered” on grounds including but not limited to when “(8) [t]he charge does not state 

an offense” and “(9) the indictment is based solely upon the testimony of an incompetent 

witness.” Id. § 114-1(a)(8), (9). The record establishes that the defendant alleged both of 

these possibilities. These allegations were known to and made by the defendant prior to 

his plea. Accordingly, the above-cited claim was not frivolous, nor was postconviction 

counsel unreasonable by including it in the amended petition. 

¶ 62 In conclusion, “if postconviction counsel’s performance cannot be deemed deficient 

under Strickland, it cannot be said that counsel failed to provide the reasonable level of 

assistance required under the Act.” People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 37. 

“[U]nder the Strickland standard, a defendant must show that counsel’s performance fell 

below an objective standard of reasonableness and that counsel’s deficient performance 

resulted in prejudice.” Id. ¶ 34. Here, we conclude that postconviction counsel was not 
28 

deficient under Strickland regarding any of the defendant’s arguments in this appeal. 

Accordingly, we find that postconviction counsel did not provide unreasonable assistance 

under the Act. See id. ¶ 37. 

¶ 63 CONCLUSION 

¶ 64 For the foregoing reasons, we affirm the circuit court’s December 21, 2016, order 

dismissing the amended postconviction petition. 

¶ 65 Affirmed.