NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 200485-U

Order filed August 10, 2023

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

JONATHAN BURHANS, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Tazewell County, Illinois, 

Appeal No. 3-20-0485 

Circuit No. 13-CF-543 

Honorable 

Katherine S. Gorman, 

Judge, Presiding. 

____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. 

 Presiding Justice Holdridge and Justice Brennan concurred in the judgment.

____________________________________________________________________________

ORDER

¶ 1 Held: Postconviction counsel did not provide unreasonable assistance. 

¶ 2 Defendant, Jonathan Burhans, appeals from the second-stage dismissal of his 

postconviction petition, arguing that postconviction counsel provided unreasonable assistance by

(1) filing a certificate that referenced Rule 604(d) rather than Rule 651(c), (2) neither amending 

defendant’s petition nor withdrawing representation, and (3) failing to raise a challenge to the jury 

instructions related to predatory criminal sexual assault of a child. We affirm. 
2 

¶ 3 I. BACKGROUND

¶ 4 Following a jury trial, defendant was convicted of two counts of predatory criminal sexual 

assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and one count of aggravated criminal 

sexual abuse (id. § 11-1.60(b)). The convictions arose from defendant’s conduct with his minor 

child. Defendant was sentenced to terms of 24, 17, and 5 years’ imprisonment, respectively, with 

the sentences running consecutively.

¶ 5 On direct appeal, defendant argued that the State failed to provide a foundation for the 

admission into evidence of research studies that informed the opinion of a witness. People v. 

Burhans, 2016 IL App (3d) 140462, ¶ 29. This court affirmed, finding that, although the State 

failed to lay an adequate foundation for the studies, the error was harmless beyond a reasonable 

doubt. Id. In coming to that conclusion, this court stated that the witness’s testimony “did not show

that defendant had committed the alleged crimes. It was [the minor’s] testimony, along with DNA 

evidence, that overwhelmingly supported defendant’s convictions.” Id. ¶ 37.

¶ 6 Defendant subsequently filed a pro se postconviction petition that contained a list of 

ineffective assistance of trial and appellate counsel claims and due process violations. On January 

22, 2018, the circuit court advanced the petition to the second stage and appointed counsel. In the 

amended petition, postconviction counsel omitted several assertions and reworded one but 

otherwise merely typed the statements made by defendant in the pro se petition. Both defendant’s 

petition and the amended petition included defendant’s affidavit, in which he stated that he had 

informed trial counsel that he had been framed by the minor’s mother. No other affidavits or 

evidence were attached to the amended petition.

¶ 7 In a filing captioned “Rule 604(d) Certificate,” postconviction counsel certified to the 

circuit court the following:
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“1. I have consulted with the Defendant in person, by mail, by phone or by 

electronic means to ascertain the defendant’s contentions of error in the jury trial 

and in the sentence; 

2. I have examined the trial court file and report of proceedings of the jury 

trial and the report of proceedings in the sentencing hearing; and 

3. I have made any amendments to the motion necessary for the adequate 

representation of any defects in those proceedings.” 

The State filed a motion to dismiss, which focused on the lack of support for defendant’s claims. 

For instance, in response to defendant’s claim that the State failed to give exculpatory evidence to 

the defense, the State argued that defendant failed to allege the nature of the evidence and could 

not show that any evidence had been withheld. On June 23, 2020, the court dismissed the petition, 

finding that defendant failed to make a substantial showing of a constitutional violation. 

¶ 8 II. ANALYSIS

¶ 9 On appeal, defendant argues that his postconviction counsel provided unreasonable 

assistance. Specifically, defendant asserts that postconviction counsel did not (1) file a Rule 651(c) 

certificate, (2) present the legal claims in proper legal form, and (3) raise a challenge to the jury 

instructions used at trial.

¶ 10 Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)), 

postconviction counsel is only required to provide a “reasonable” level of assistance, which is a 

less rigorous standard than the constitutional guarantee of effective assistance. People v. Bass, 

2018 IL App (1st) 152650, ¶ 11. Under Rule 651(c), reasonable assistance requires a showing that 

postconviction counsel
4 

“consulted with petitioner by phone, mail, electronic means or in person to ascertain 

his or her contentions of deprivation of constitutional rights, has examined the 

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

filed pro se that are necessary for an adequate presentation of petitioner’s 

contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). 

See People v. Carrizoza, 2018 IL App (3d) 160051, ¶ 12. The filing of a Rule 651(c) certificate 

raises a rebuttable presumption that postconviction counsel rendered reasonable assistance. Bass, 

2018 IL App (1st) 152650, ¶ 12. Strict compliance with Rule 651(c) is not required. Carrizoza, 

2018 IL App (3d) 160051, ¶ 12. If counsel did not file a certificate that substantially complied with 

Rule 651(c), reasonable assistance may be established by the record. Id. ¶ 13. Therefore, in 

determining whether postconviction counsel provided reasonable assistance, we first determine 

whether counsel filed a certificate that substantially complied with Rule 651(c). Id. We review 

de novo the question of whether postconviction counsel provided a reasonable level of assistance. 

People v. Russell, 2016 IL App (3d) 140386, ¶ 10.

¶ 11 Defendant argues that postconviction counsel filed a certificate that fails to substantially 

comply with Rule 651(c) because it references the incorrect rule number and misidentifies the 

petition as a “motion.” The question of whether a certificate substantially complies with Rule 

651(c) should be considered on a case-by-case basis. Carrizoza, 2018 IL App (3d) 160051, ¶ 22. 

In Carrizoza, this court found that a certificate referencing Rule 604(d) failed to substantially 

comply with Rule 651(c) (id. ¶ 18); however, we emphasized that the holding was “not intended 

to foreclose a finding of substantial Rule 651(c) compliance with regard to any and all certificates 

filed in the future that contain Rule 604(d) language or are labeled as Rule 604(d) certificates.” Id.

¶ 22. When a certificate has mistakenly referenced Rule 604(d) rather than Rule 651(c), reviewing 
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courts have focused on the substance of the language in the certificate. See, e.g., id. ¶ 18; People 

v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 14; People v. Mason, 2016 IL App (4th) 140517, ¶ 24. 

¶ 12 In Kirkpatrick, the Second District determined that the mislabeled certificate substantially 

complied with Rule 651(c) because the “substantive contents reflected that [postconviction 

counsel] attempted to consult with defendant, reviewed the court file and record of proceedings, 

and made any necessary amendments.” Kirkpatrick, 2012 IL App (2d) 100898, ¶ 4. In Carrizoza, 

this court found that a mislabeled certificate failed to comply when it also used the language of 

Rule 604(d) and stated that counsel had consulted with defendant regarding “contentions of error 

in the entry of the plea of guilty and in the sentence” and “examined the trial court file and report 

of proceedings of the plea of guilty and sentencing.” (Emphasis added.) Carrizoza, 2018 IL App 

(3d) 160051, ¶ 18. 

¶ 13 Here, although postconviction counsel filed a certificate captioned “Rule 604(d) 

Certificate,” the language in the body of the certificate closely mirrors the language set forth in 

Rule 651(c). Counsel certified that she had consulted with defendant, examined “the trial court file 

and report of proceedings of the jury trial and the report of proceedings in the sentencing 

hearing[,]” and made any necessary amendments. Although the certificate referenced a motion

rather than a petition, we find that the language substantially complies with the requirements of 

Rule 651(c), as did the certificate in Kirkpatrick. 

¶ 14 Because postconviction counsel filed a certificate that substantially complied with Rule 

651(c), a presumption is raised that counsel complied with the rule, and the burden is on defendant 

to rebut that presumption. See Carrizoza, 2018 IL App (3d) 160051, ¶ 13. Defendant argues that 

the record affirmatively rebuts that presumption because counsel’s amended petition “largely 

amounted to a typed copy of [defendant’s] pro se petition” and “[t]he claims themselves were 
6 

deficient on their face—vague and conclusory claims, without explanation.” Defendant concludes 

that “either counsel determined [defendant’s] claims were meritless and advanced an [un]amended 

petition without explanation, or counsel did not conclude the claims were meritless, yet did not 

take the necessary steps to adequately shape them for legal presentation. As such, she provided 

unreasonable assistance ***.” 

¶ 15 Citing to People v. Greer, 212 Ill. 2d 192, 209 (2004), defendant argues that postconviction 

counsel was required to either amend the petition or move to withdraw as counsel. We reject 

defendant’s assertion that postconviction counsel may not reasonably stand on insufficient legal 

claims raised by a defendant in a pro se petition. Although Greer allows postconviction counsel 

to withdraw when the claims in a petition are frivolous or patently without merit, it does not compel 

withdrawal in every instance where counsel is unable to amend a pro se petition. See id. at 211-12 

(stating that “the inability of postconviction counsel to ‘properly substantiate’ a defendant’s claims 

is not the standard by which counsel should judge the viability of a defendant’s postconviction 

claims” (Emphasis in original.)). When counsel cannot establish support for claims in a pro se

petition, counsel has the option to either stand on the allegations or withdraw as counsel. People 

v. Malone, 2017 IL App (3d) 140165, ¶ 10; see also Bass, 2018 IL App (1st) 152650, ¶ 20 (holding 

that postconviction counsel could elect either to withdraw or to stand on the pro se petition). 

¶ 16 Here, defendant’s pro se petition contained a number of broad, vague assertions such as 

“[c]ounsel failed to properly prepare for trial[,]” “[c]ounsel failed to challenge the admissability 

[sic] of evidence,” and “[c]ounsel failed to use evidence to impeach witnesses at trial.” Defendant 

himself fails to identify what evidence or which witnesses are at issue. Instead, he merely 

complains that postconviction counsel failed to amend his petition so that it established support 

for his claims. However, “[a] mere failure to amend the pro se petition is not enough to establish 
7 

inadequacy of representation in the absence of a showing that the petition could have been 

successfully amended.” People v. Johnson, 232 Ill. App. 3d 674, 678 (1992). And when, as here, 

a circuit court rules upon “a motion to dismiss a post-conviction petition which is not supported 

by affidavits or other documents [the court] may reasonably presume that post-conviction counsel 

made a concerted effort to obtain affidavits in support of the post-conviction claims, but was unable 

to do so.” People v. Johnson, 154 Ill. 2d 227, 241 (1993). Because defendant has failed to establish 

that the petition could have been successfully amended, we conclude that postconviction counsel 

acted reasonably by standing on the pro se petition. 

¶ 17 Finally, defendant argues that postconviction counsel provided unreasonable assistance by 

failing to raise a challenge to the jury instructions used at trial. However, this claim was not raised 

in defendant’s pro se petition, and postconviction counsel has no obligation to raise claims not 

raised in the pro se petition. See People v. Pendleton, 223 Ill. 2d 458, 475-76 (2006). Defendant 

“is not entitled to the advocacy of counsel for purposes of exploration, investigation and

formulation of potential claims.” People v. Davis, 156 Ill. 2d 149, 163 (1993). As such, 

“postconviction counsel is not required to comb the record for issues not raised in the defendant’s 

pro se postconviction conviction.” People v. Helton, 321 Ill. App. 3d 420, 424-25 (2001). 

¶ 18 III. CONCLUSION

¶ 19 The judgment of the circuit court of Tazewell County is affirmed. 

¶ 20 Affirmed.