2017 IL App (3d) 150460

Opinion filed September 29, 2017 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

RICK VINSON, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Tazewell County, Illinois. 

Appeal No. 3-15-0460 

Circuit No. 09-CF-488 

Honorable Paul P. Gilfillan, 

Judge, Presiding. 

_____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

Justice Carter concurred in the judgment and opinion. 

Justice McDade concurred in part and dissented in part, with opinion.

OPINION

¶ 1 Defendant, Rick Vinson, appeals the partial dismissal of his postconviction petition at the 

second stage, arguing that postconviction counsel was unreasonable for failing to (1) allege 

ineffective assistance of appellate counsel based on a conflict of interest and (2) attach 

supporting evidence. We affirm.
2 

¶ 2 FACTS

¶ 3 After a bench trial, the court found defendant guilty of four counts of criminal sexual 

assault. 720 ILCS 5/12-13(a)(1), (a)(2) (West 2008).

1 The court sentenced defendant to two 

consecutive terms of four years’ imprisonment, with two of the four counts merging. During 

trial, defendant was represented by private counsel, Jason Kopec. Kopec continued to represent 

defendant during his direct appeal. This court affirmed defendant’s convictions on direct appeal. 

People v. Vinson, 2011 IL App (3d) 100667-U. In doing so, we noted that two of defendant’s 

arguments were forfeited and defendant failed to argue plain error. Id. ¶¶ 39-41, 47. We also 

noted that one of defendant’s arguments was waived because defendant “only raise[d] this issue 

on appeal but [did] not argue it.” Id. ¶ 50. 

¶ 4 Defendant subsequently filed a pro se postconviction petition. The petition alleged, 

inter alia, numerous instances of ineffective assistance of counsel. Specifically, defendant 

argued, in part, that trial counsel was ineffective for failing to (1) properly file motions or object

during trial to the extent that issues raised on direct appeal were considered waived or forfeited, 

(2) advise defendant on the terms of an alleged plea offer and whether to consider it, and (3) 

advise defendant on what his sentence would be and the percentage of the sentence he would 

have to serve. Defendant argued that appellate counsel was ineffective for failing to (1) argue 

plain error of the forfeited errors and (2) address more fully the issue the appellate court deemed 

waived. Defendant further alleged that he had asked that trial counsel have the Office of the State 

Appellate Defender appointed on appeal, but counsel had ignored defendant’s request. 

¶ 5 The circuit court did not rule on defendant’s pro se petition within 90 days. Therefore, 

the court appointed postconviction counsel, and the petition moved to the second stage. 

 1

This statute was subsequently renumbered as section 11-1.20 by Public Act 96-1551 (Pub. Act 

96-1551 art. 2, § 5 (eff. July 1, 2011)). 
3 

Postconviction counsel filed a 68-page amended petition and a Rule 651(c) certificate stating that 

he made all amendments necessary for presentation of defendant’s contentions. The petition 

included a footnote that stated: “The Defendant denies that he retained his trial counsel for the 

appeal. The Defendant asserts that he had wanted an appellate defender but that his trial counsel 

never had one appointed.” The amended petition advanced all the allegations of ineffective 

assistance of counsel that defendant had included in his pro se petition, including specific 

instances in which Kopec had, in the circuit court, failed to (1) object at trial, (2) file motions, 

and (3) conduct investigations. On appeal, Kopec failed to (1) argue plain error for two issues 

and (2) properly argue and brief an issue. The amended petition stated: 

“On the first day of trial, after the lunch break, the Defendant was 

told by his defense trial counsel that the prosecution offered a plea 

bargain to one count. The defense trial counsel told the Defendant 

that the prosecutor did not mention how many years. However, the 

defense trial counsel stated that the prosecutor could not offer less 

than the Judge would give. Based on Defendant’s prior 

conversations with his defense counsel, the Defendant understood 

this to mean 4 years DOC at 50% day for day good time.” 

The petition argued that Kopec implicitly informed defendant not to take the plea deal because 

the case was going well for defendant and the State “had prepared the victim for a loss.” Further, 

the petition stated: 

“Defense trial counsel had told the Defendant at a pre trial meeting 

at the jail that considering the Defendant’s background, there was 
4 

no way the Judge was going to sentence the Defendant to more 

than one count at the minimum four years at 50%.

 * * * 

*** The Defendant ultimately received a sentence of 4 

years on two counts, consecutive, at 85% time. This actual 

sentence was therefore three times the sentence that defense trial 

counsel told the Defendant pre trial he would receive if found 

guilty.

 * * * 

*** Had the Defendant been informed that the sentence 

would be served at 85% time, the Defendant would have taken the 

plea offer on one count. 

*** Had the Defendant been informed that he would be 

sentenced on two counts post trial, the Defendant would have 

taken the plea offer on one count.” 

Attached to the petition was an affidavit of defendant. Defendant’s pro se petition was also 

attached as an affidavit.

¶ 6 The State filed a motion to dismiss arguing, inter alia, (1) defendant’s petition was 

untimely, (2) some of defendant’s claims were waived or barred by res judicata, (3) defendant’s 

claims of ineffective assistance of counsel were not adequately supported, and (4) defendant 

could not show that counsel was deficient or that he was prejudiced. A hearing was held on the 

motion to dismiss. The court issued a written order. The court denied the motion with respect to 

two of defendant’s allegations, stating that (1) defendant’s claim that his right to counsel of 
5 

choice on appeal, if proven, would be structural error and (2) trial counsel’s strategy regarding 

the deoxyribonucleic acid (DNA) chain of custody was not capable of direct review as Kopec 

continued to represent defendant on appeal. However, the court granted the motion to dismiss as 

to every other allegation in the petition. 

¶ 7 The petition proceeded to a third-stage hearing on the issues of “whether or not the 

defendant desire[d] to have his appellate counsel actually handle his appeal, and then depending 

on the outcome of that particular issue, whether or not the chain of custody was adequately 

addressed by counsel during the trial.” After the hearing, the court denied the postconviction 

petition, stating that the court could not conclude that defendant requested different counsel on 

appeal. The court further found that reasonable trial strategy could explain Kopec’s action or 

inaction regarding the DNA chain of custody. 

¶ 8 ANALYSIS

¶ 9 On appeal, defendant raises two claims of unreasonable assistance of postconviction 

counsel. First, defendant argues that counsel failed “to shape into proper legal form [defendant’s] 

pro se claim that trial counsel was ineffective for representing him on appeal, despite the 

defendant’s request for the appointment of the public defender, and where counsel was placed in 

an irreconcilable conflict that adversely affected his performance on appeal.” Stated another way, 

defendant argues that postconviction counsel should have amended the petition to allege 

ineffective assistance of counsel based on a conflict of interest. Second, defendant argues that 

postconviction counsel failed to attach supporting evidence necessary for “defendant’s claim that 

trial counsel failed to properly advise him on the terms of a plea bargain and inaccurately advised 

him about his potential sentence,” nor did postconviction counsel explain why such evidence was 

not included. 
6 

¶ 10 Based on our supreme court’s opinion in People v. Lawton, 212 Ill. 2d 285 (2004), we 

find that postconviction counsel properly amended defendant’s petition to include all necessary 

claims of ineffective assistance of counsel. Further, postconviction counsel’s amended petition 

included an affidavit from defendant stating that the State did not include a term of years when 

presenting a plea offer to Kopec. Because of this and because the lack of an affidavit from the 

State or Kopec may have been trial strategy, we find that counsel’s supporting evidence was 

sufficient.

¶ 11 Though two of defendant’s claims reached the third stage of the postconviction process, 

defendant solely challenges the assistance given by his postconviction counsel at the second 

stage. During second-stage postconviction proceedings, the defendant bears the burden of 

making a substantial showing of a constitutional violation. People v. Schlosser, 2012 IL App 

(1st) 092523, ¶ 15. There is no constitutional right to the assistance of postconviction counsel. 

People v. Suarez, 224 Ill. 2d 37, 42 (2007). Instead, the right to counsel during postconviction 

proceedings is statutory under the Post-Conviction Hearing Act, and petitioners are only entitled 

to a reasonable level of assistance. Id.; 725 ILCS 5/122-1 et seq. (West 2012). 

¶ 12 “Postconviction counsel is required only to investigate and properly present defendant’s 

claims.” People v. Russell, 2016 IL App (3d) 140386, ¶ 10. Rule 651(c) requires that appointed 

postconviction counsel make amendments to the petitioner’s pro se postconviction petition that 

are necessary for adequate presentation of the petitioner’s contentions, but counsel is not 

required to make amendments that would further a frivolous or nonmeritorious claim. Ill. S. Ct. 

R. 651(c) (eff. Feb. 6, 2013); People v. Turner, 187 Ill. 2d 406, 412 (1999); People v. Greer, 212 

Ill. 2d 192, 205 (2004). Postconviction counsel’s filing of a Rule 651(c) certificate gives rise to 

the presumption that the defendant received the required representation, but such a presumption 
7 

may be rebutted by the record. Russell, 2016 IL App (3d) 140386, ¶ 10. “ ‘[A] defendant is not 

required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused 

prejudice.’ ” People v. Ross, 2015 IL App (3d) 130077, ¶ 15 (quoting People v. Nitz, 2011 IL 

App (2d) 100031, ¶ 18).

¶ 13 I. Conflict of Interest 

¶ 14 Defendant argues that postconviction counsel was unreasonable for failing to allege that 

Kopec was ineffective based on a conflict of interest. In support of his position, defendant relies 

on Lawton, 212 Ill. 2d 285. The defendant in Lawton was declared a sexually dangerous person 

and appealed. Id. at 287. The attorney that had represented him at trial also represented him in 

his appeal. Id. at 292. The appellate court affirmed. Id. He subsequently filed a petition for relief 

from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 

(West 2002)), alleging, inter alia, ineffective assistance of counsel. Lawton, 212 Ill. 2d at 293. 

The circuit court granted the defendant’s petition, finding that he had not been provided effective 

assistance of counsel, and the State appealed. Id. at 294. The appellate court reversed, holding 

that a section 2-1401 petition was “not an appropriate forum for a defendant to raise claims 

regarding competency of counsel.” Id. 

¶ 15 Our supreme court determined that a petition for relief from judgment was the correct 

place for the defendant to raise his ineffective assistance of counsel claim. Id. at 295. The court 

noted that “[p]roceedings under the Sexually Dangerous Persons Act are civil in nature” but that 

defendants subject to the act were entitled to effective assistance of counsel. Id. The court then 

stated:

“The right to effective assistance of counsel has no 

meaning unless a defendant has some means to assert it. Where a 
8 

defendant in a proceeding under the Sexually Dangerous Persons 

Act contends that he was denied effective assistance of counsel at 

trial, he may raise that issue on direct appeal from the circuit 

court’s judgment. [Citation.] When the defendant’s trial counsel 

goes on to represent him on appeal, however, that avenue is likely 

to be foreclosed. An attorney cannot be expected to argue his own 

ineffectiveness. That is why, for example, trial counsel’s failure to 

assert his own ineffective representation in a posttrial motion does

not waive the issue on appeal. [Citation.]

That is the problem facing Lawton in the case before us 

here. As we have indicated, the lawyer whose actions in the trial 

court are the basis for Lawton’s claim of ineffective assistance of 

counsel is the same lawyer who handled Lawton’s appeal on direct 

review. To advance Lawton’s argument that he had mishandled the 

trial proceedings would have required the lawyer to argue his own 

incompetence on appeal. To avoid the criticism that he was 

incompetent would have required that he compromise his 

obligation as an attorney to represent Lawton zealously. The 

lawyer thus faced an inherent conflict of interest.

Defendants seeking to challenge the effectiveness of the 

representation they received during their criminal trials have a 

mechanism for avoiding this problem. If their trial counsel 

continues to represent them on direct review and does not raise the 
9 

issue of the effectiveness of the representation he provided, notions 

of waiver will yield to considerations of fundamental fairness and 

defendants will still be permitted to challenge trial counsel’s 

effectiveness through proceedings under the Post-Conviction 

Hearing Act.” Id. at 295-96. 

Because the case was civil in nature, however, the defendant could not file a postconviction 

petition in which to raise the ineffectiveness of counsel. Id. at 297. Therefore, the court

determined that the defendant could have sought relief in a section 2-1401 petition, though the 

court ultimately rejected the defendant’s claim on the merits. Id. at 297, 302. 

¶ 16 Ultimately, Lawton provides two takeaways (1) if an attorney represents a defendant in a 

criminal case during both the trial and the appeal, the defendant can raise ineffective assistance 

of counsel on postconviction and (2) if the same scenario is true in a case under the Sexually 

Dangerous Persons Act, the defendant can raise ineffective assistance in a section 2-1401 

petition. 

¶ 17 Here, defendant attempts to expand Lawton into the proposition that when counsel 

represents a defendant both during trial and on appeal, postconviction counsel must amend the 

petition to include ineffective assistance of counsel based on a conflict of interest. Lawton does 

not state this, nor does defendant cite any other case with such a result. Lawton is clear that an 

attorney only labors under a conflict of interest if he is forced to argue his own ineffectiveness.

This scenario is not present in the instant case as Kopec did not argue his own ineffectiveness on 

direct appeal. See id. at 296; see also People v. Sullivan, 2014 IL App (3d) 120312, ¶¶ 46-47. 

Moreover, Kopec was not required to argue his own ineffectiveness since defendant could raise 

the argument in his postconviction petition. Stated another way, representing a defendant both 
10 

during trial and on appeal would only become a conflict of interest, in this context, if the attorney 

was forced to argue his ineffectiveness. As a defendant may always bring such a claim in his 

postconviction petition, an attorney will not be forced to make such an argument, and the conflict 

is avoided. In other words, there is no conflict that must be alleged simply because trial counsel 

continued to represent a defendant on appeal. 

¶ 18 Here, postconviction counsel amended defendant’s pro se postconviction petition to 

include each claim of ineffective assistance defendant raised in his pro se petition, including the 

claims of ineffective assistance of appellate counsel. There was no conflict of interest to allege as 

Kopec did not argue his own effectiveness on direct appeal. Therefore, postconviction counsel 

sufficiently presented defendant’s claims of ineffective assistance. See Lawton, 212 Ill. 2d at 

295-96. 

¶ 19 II. Affidavit

¶ 20 Defendant contends that postconviction counsel was unreasonable for failing to attach an 

affidavit from either the State or Kopec stating the terms of the plea offered. 

¶ 21 Section 122 of the Post-Conviction Hearing Act states, “The 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 2014). 

“The evidentiary affidavit attached to a postconviction petition 

serves two purposes. First, it must contain a factual basis sufficient 

to show the petition’s allegations are ‘capable of objective or 

independent corroboration.’ [People v. Collins, 202 Ill. 2d 59, 67 

(2002).] Second, it must ‘identify with reasonable certainty the 

sources, character, and availability of the alleged evidence 
11 

supporting the petition’s allegations.’ [People v. Delton, 227 Ill. 2d 

247, 254 (2008).]” People v. Allen, 2015 IL 113135, ¶ 32. 

¶ 22 Postconviction counsel attached a supplemental affidavit of defendant, which was signed 

and notarized. Defendant’s affidavit states, in part: 

“My trial defense counsel also told me that over the noon break 

(after the morning testimony and before the afternoon resumption 

of the trial) that the prosecutor had made a plea offer that I plead 

guilty to one count. I asked my defense counsel how many years 

and my defense counsel said that the prosecutor did not say how 

many years on the one count.” 

Defendant explicitly states in the affidavit that there was not a term of years offered as part of the 

plea offer. “Absent a showing of available material for supporting affidavits, a failure to present 

affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 

42, 46 (1970). Defendant has not shown that there were actually any terms to the plea offer. In 

fact, defendant’s affidavit appears to confirm there were no specific terms, with regard to years, 

attached to the offer. Moreover, even if we accept defendant’s contention that there was a term of 

years in the plea, counsel’s decision not to attach an affidavit of the State or Kopec may have 

been strategy as the term of imprisonment offered could have been more than the sentence 

defendant actually received. For these reasons, counsel was not unreasonable for failing to attach 

an affidavit of the State or Kopec.

¶ 23 In coming to this conclusion, we reject defendant’s contention that postconviction 

counsel could have raised the novel argument “that the defendant would have taken a plea to one 

count, regardless of the sentence, because of the sex offender registry requirements.” 
12 

Postconviction counsel need only amend the claims raised by defendant in his pro se petition. 

People v. Garcia-Rocha, 2017 IL App (3d) 140754, ¶ 35; People v. Pendleton, 223 Ill. 2d 458, 

476 (2006) (“While postconviction counsel may conduct a broader examination of the record 

[citation], and may raise additional issues if he or she so chooses, there is no obligation to do so.” 

(Emphasis in original.)). Moreover, postconviction counsel has “no obligation to seek out or 

explore alternative bases for defendant’s claim.” People v. Vasquez, 356 Ill. App. 3d 420, 425 

(2005). 

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell

County. 

¶ 26 Affirmed. 

¶ 27 JUSTICE MCDADE, concurring in part and dissenting in part. 

¶ 28 The majority upholds the partial dismissal of defendant’s postconviction petition at the 

second stage, finding that postconviction counsel did not act unreasonably in (1) failing to allege 

ineffective assistance of appellate counsel (Kopec) based on a conflict of interest or (2) failing to 

attach an affidavit supporting defendant’s pro se claim that trial counsel (Kopec) incorrectly 

advised him on the terms of his potential plea bargain and sentence. While I concur with the 

majority’s holding as to the first issue, I dissent from the majority’s finding as to the second 

issue. I believe postconviction counsel’s failure to attach an affidavit from the prosecutor or 

Kopec describing the terms of the potential plea agreement constitutes unreasonable assistance. 

Section 122-2 of the Post-Conviction Hearing Act expressly provides that “[t]he petition shall

have attached thereto affidavits, records, or other evidence supporting its allegations or shall 
13 

state why the same are not attached.” (Emphasis added.) 725 ILCS 5/122-2 (West 2012). 

Postconviction counsel did not comply with either mandate. 

¶ 29 The importance of trial counsel’s effectiveness cannot be overstated, particularly in 

criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). On appeal, all of the applicable 

standards of review favor upholding the verdict. The likelihood of correcting constitutional 

issues on postconviction review is even lower than on direct appeal. Although the procedural 

scheme in such actions is fair, its implementation is narrowly restricted. At the second stage, 

postconviction counsel is supposed to review the proceedings and discuss the contentions of 

error with the defendant, but counsel is not required to make any arguments or raise any issues 

that the defendant did not raise in his pro se postconviction petition. Russell, 2016 IL App (3d) 

140386, ¶ 10. In other words, postconviction counsel need only advance those contentions 

actually raised by a person who is ignorant of the letter and nuances of the law in general and the 

postconviction statute in particular. Counsel is, however, required to shape all the claims the 

defendant has made into proper form. Id. As postconviction counsel is not required to raise new 

issues, it is all the more important that counsel properly shape those defendant has raised. 

¶ 30 In order to adequately allege ineffective assistance of counsel for incompetency during 

plea negotiations, “a defendant must show the outcome of the plea process would have been 

different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). Stated another 

way, defendant’s postconviction petition had to show that defendant was prejudiced by Kopec’s 

incompetency. Proof of such prejudice cannot be based on mere conjecture or speculation as to 

the outcome. People v. Palmer, 162 Ill. 2d 465, 481 (1994). Further, as the majority states (supra

¶ 22), the Post-Conviction Hearing Act requires that a postconviction petition “have attached 
14 

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

are not attached.” 725 ILCS 5/122-2 (West 2014). 

¶ 31 Without an affidavit or other evidence stating the terms of the plea deal (or possibly 

showing this was just an opening offer to negotiate which counsel discouraged), or a statement 

from postconviction counsel regarding why such support was lacking, any prejudice to defendant 

was speculative and therefore fatal to his petition. Postconviction counsel had a responsibility to 

amend the petition in such a way that the prejudice to defendant during the plea process was 

based on actual evidence, not just conjecture. Palmer, 162 Ill. 2d at 481. As counsel did not do 

so, his performance was unreasonable.

¶ 32 Finally, the majority states, “Moreover, even if we accept defendant’s contention that 

there was a term of years in the plea, counsel’s decision not to attach an affidavit of the State or 

Kopec may have been strategy as the term of imprisonment offered could have been more than 

the sentence defendant actually received.” (Emphasis added.) Supra ¶ 22. I am not aware of any 

case law, nor does the majority cite any, that permits a gloss of “strategy” to excuse 

postconviction counsel’s failure to comply with his statutorily mandated duty to support a 

defendant’s claim or explain why he was unable to do so. Instead, a court’s deference to an 

attorney’s “strategy” is restricted to the context of representation at trial. In contrast, 

postconviction counsel’s discretionary decisions are limited to two choices: (1) attach supporting 

affidavits, records, or other evidence or (2) explain the absence of such documents. 725 ILCS 

5/122-2 (West 2012). There is no “strategy” or excuse justifying an attorney’s decision to do 

neither.
15 

¶ 33 Accordingly, I would reverse the dismissal of defendant’s claim that he received 

ineffective assistance of counsel during plea negotiations and remand for third stage 

postconviction proceedings.