2019 IL App (2d) 181026-U No. 2-18-1026 Order filed December 17, 2019 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).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Boone County. ) Respondent- Appellee, ) ) v. ) No. 12- CF -44 ) LUIS H. REY , ) Honorable ) Robert C. Tobin, Petitioner -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment. ORDER ¶ 1 Held : The trial court properly summarily dismissed defendant’s postconviction petition. Affirmed

. ¶ 2 Petitioner , Luis H. Rey , appeals the trial court’s summary dismissal of his petition filed pursuant to the Post -C onv ic tion Hearin g Act ( 725 ILCS 5/122 -1 et seq. (West 2016)). For the following reasons, we affirm. ¶ 3 I. BACKGROUND ¶ 4 Petitioner was convicted of three counts of aggravated criminal sexual assault (720 ILCS 5/11- 1.30(a)(1), (b)(1) (West 2000)) , and t he trial court sentenced him to consecutive terms of 142019 IL App (2d) 181026-U

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- years’ an d 6 years’ imprisonment. On direct appeal, t his court affirmed

. People v. Rey , 2017 IL App (2d) 160478- U. ¶ 5 On August 24, 2018, petitioner, with counsel, filed a petition for postconviction relief , alleging four categories of ineffective assistance of trial and appellate counsel. First , petitioner argued that trial counsel was ineffective for not properly framing the jurisdictional position in his motion to di sm iss the indictment , that the relevant argument would have shown that the case belonged in juvenile court, and that appellate counsel was ineffective for failing to raise the issue on appeal. ¶ 6 Second, petition er argued that trial counsel failed to pursue expert testimony to prove that the complainant was suffering from false memory repression. He attached to the petition as an exhibit an article , dated December 1995 , entitled “Formation of False Memories,” by Elizabeth Loftus, PhD. ¶ 7 Third, petitioner argued that trial counsel was ineffective for failing to investigate and interview witnesses who cou ld have impeached the complainant’s allegations. In a notarized affidavit attached to the petition, petitioner attested that he continually told trial counsel the names of witnesse s who would impeach the complainant, but trial counsel did nothing with the information. In addition, petitioner asserted that counsel was ineffective because he should have pursued the fact that, in 2008 or 2009, after the alleged assaults, complainant se nt petitioner a holiday card wh ile he was incarcerated . A copy of the card was attached to the petition. ¶ 8 Fourth, petitioner argued that counsel was ineffective for failing to call petitioner to the stand to testify in his own defense , and that the trial c ourt did not properly admonish petitioner on his decision to testify or remain silent. P etitioner attached his own affidavit, attesting, in relevant part, that: (1) he wanted to testify at trial to proclaim his innocence; (2) trial counsel told him that2019 IL App (2d) 181026-U

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- h e would not put him on the stand , because the matter would be r esolv ed in pe t itioner’ s favor without his testimony and, therefore, it was not necessary ; (3) when the trial court asked whether he would be testify ing, he responded only what his lawyer had told him, i.e. , that he would not be testifying; and (4) he was unaware, at the time , that it was solely his decision whether to testify. ¶ 9 On November 20, 2018, in a memorandum decision, the trial court summarily dismissed the postconviction petition. After briefly reciting the case history and legal standards, the trial court rejected each of the petition’s ineffective

- assistance allegations as failing to state the gist of a constitutional claim for various reasons specific to each claim . The court noted th at petitioner did not present evidence to support the prejudice prong of an ineffective

- assistance claim, made only conclusory statements, and produced only his own affidavit, which was contradicted by the record . As to the claim involving petitioner’s desire to testify in his own defense, the court noted that it had advised petitioner at trial that the decision to testify was his , not his attorney’s, and that he expressly declined to do so. The court finally noted that the c onstitu t ional r ight to tes t ify can be waived , and it is therefore i ncu mb ent upon a defendant to assert that ri ght while still at trial

. ¶ 10 II. ANALYSIS ¶ 11 Petitioner appeals the summary dismissal of his petition. A postconviction proceeding contains three distinct stages. Pe ople v. Hodges , 234 Ill. 2d 1, 10 (2009). This appeal concerns a summary dismissal at the first stage

. At the first stage, “the court considers solely the petition’s substantive virtue. ” (Emphasis in original. ) People v. Allen , 2015 IL 113135, ¶ 33. T he court may dismiss the petition if the allegations therein, taken as true, render the petition frivolous or patently without merit . 725 ILCS 5/122

- 2.1(a)(2) (West 2016)

. A petition is frivolous or patently without merit if it has no arguable basis eith er in law or in fact

. Hodges , 234 Ill. 2d at 12

. A petition that has no arguable basis in law or in fact is one based on an indisputably meritless legal2019 IL App (2d) 181026-U

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- theory or a fanciful factual allegation

. Id

. An indisputably meritless legal theory is one that is completely contradicted by the record

. Id . at 16 -17

. We review de novo the summary dismissal of a postconviction petition. Id . at 9. ¶ 12 We note first that, although petitioner raised several claims of ineffective assistance in his petition and all were dismissed by the trial court, on appeal , he addresses substantively only one: the dismissal of his claim concerning the denial of his right to testify. 1 He contends that , at this stage, the court : erred in finding that the allegation needed more support than his affidavit ; improperly drew conclusions that went beyond the requisite “quick look” at the record ; ignored the petition before it ; and improperly relied on People v. Cleveland , 2012 IL App (1st) 101631, which concerned a second

- stage dismissal. Pet itioner asserts that the affidavit concerned a conversation between himself and his counsel and , therefore, it is “difficult to conjure up” what other support he could bring. He concludes that the claim should not have be en dismissed without an evidentiary hearing to determine whether his constitutional right to testify in his own defense was violated

. ¶ 13 A defendant ’ s right to testify at trial is a fundamental constitutional right, as is his or her right to choose not to testify. People v. Weatherspoon , 394 Ill. App. 3d 839, 855 (2009). The decision whether to testify rests ultimately with the defendant alone

. People v. Brown , 336 Ill.

1 The rest of petitioner’s brief concerns, generally, standards pertaining to postconviction dismissals at the first stage. In its response brief, the State pointed out that petitioner had limited his appellate argument to only one substantive claim and , ac cordingly, it addressed only th at claim.
Pet i tioner did not file a reply brief . We , therefore , view his other ineffective

- assistance claim s as abandoned for purposes of our review in this appeal

.2019 IL App (2d) 181026-U

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- App. 3d 711, 719 (2002). Undue interference with a defendant’s right to testify may constitute ineffective assistance of counsel

. People v. Seaberg , 262 Ill. App. 3d 79, 82

- 83 (1994)

. However, merely advising a defendant not to testify is a matter of trial strategy and does not constitute ineffective assistance of counsel absent evidence that counsel refused to allow the defendant to testify

. People v. Youngblood , 389 Ill. App. 3d 209, 217 (2009)

. “ When a defendant ’ s postconvi ction claim that his trial counsel was ineffective for refusing to allow the defendant to testify is dismissed, the reviewing court must affirm the dismissal unless, during the defendant ’ s trial, the defendant made a ‘ contemporaneous assertion *** of his r ight to testify. ’ ” Id. (quoting People v. Brown , 54 Ill. 2d 21, 24 (1973 )) . Further, t h e dismissal of a post

- conviction petition will be upheld when the allegations are contradicted by the record from the original trial proceedings

. People v. Torres , 2 28 Ill. 2d 382, 394 (2008). We will not credit allegations that are positively rebutted by the record. People v. Barnslater , 373 Ill. App. 3d 512, 519 (2007). ¶ 14 Here, petitioner’s claim is rebutted by the record. Although, in his affidavit, petitioner claims that counsel told him he would not put him on the stand , he does not assert that counsel refused to allow him to testify or did anything more than advise petitioner that his testimony was not necessary to prevail

. Further , a lthough peti tioner contends in his affidavit, “I was unaware at the time that it is my decision alone whether to testify or not testify , ” t his claim is positively rebutted by the record: “THE COURT: *** [Petitioner], I do this before every trial for every defendant, so I’m certainly not isolating you. I’m going to tell you that for the most part your attorneys will be handling the way the trial goes. They’re going to get your input, some thoughts from you, but ultimately they’re the ones that are going to do the tri al strategy. What does that mean?2019 IL App (2d) 181026-U

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- Well, they’ll decide what questions to ask, what not to ask, when to make objections, when not to make objections, what type of arguments to make, legal theories, all those things. That’s what they would do. The roles ar e reversed in two main situations for your case ***. By roles reversing, it means that they will be giving you input but ultimately it’s going to be your choice . The first one is going to be whether you want to testify or not . You have a right to testify, you have a right to not testify. And if you choose not to testify, your attorneys can ask me to direct the jury not to take—not to hold that against you. On the other hand, if you want to testify, you’re always welcome to testify too.
*** So talk with your attorneys over the course of this trial about both of those issues. And if I revisit this, and I will revisit it as the time comes, don ’ t think I ’ m trying to talk you into or out of doing something. I’ m just trying to remind you that that ’s where the roles reverse and you’re the decision maker

. Okay?
THE [PETITIONER] : Yes, sir

. ” (Emphases added.) ¶ 15 Later, the court asked petitioner : “THE COURT: [Petitioner], you’ ve had a chance to talk with your attorneys.
You ’ ve now sat through a good portion of the evidence

. Certainly you ’ ve heard the whole State ’ s case in chief

. You ’ ve got most of the evidence that ’ s going to be presented in your

case . And now is the time for me to just ask you whether or not you’re going to testify. THE DEFENDANT : No, sir, I’m not .” (Emphasis added.) ¶ 16 Based on th ese exchange s, petitioner’s legal theory is refuted by the record. The court informed petitioner that the decision to testify was his, not his attorney’s, and petitioner2019 IL App (2d) 181026-U

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- acknowledged that he understood. Petitioner expressly informed the court that he would not testify, and did not voice at trial any objection to his c ounsel’s advice or a desire to testify

. ¶ 17 Moreover, the court’s reliance on Cleveland , 2012 IL App (1st) 101631 , ¶ ¶ 65 -67, was not improper, as its reference to that case concerned not the stage of proceedings, but, rather, the general concepts that “[a] s w ith many constitutional rights that may be waived, it is incumbent upon the defendant to assert his right to testify such that his right can be vindicated during the course of the trial,” and “ Illinois courts have voiced concern over the ease with which th is ineffectiveness of counsel claim can be made. [Citations.] More than the defendant ’ s self -serving statement is required to demonstrate that he truly desired to testify, which defense counsel failed to observe. ” Id. Moreover, Cleveland supports our decision here, as it, too, noted “the defendant ’ s silence [at trial] can be taken as acquiescence in defense counsel ’ s decision to rest without calling the defendant as a witness, [therefore] neither the record nor his affidavit provides substantial support for his claim that he was thwarted from testifying. ” Id. at ¶ 66. ¶ 18 In sum, the court p roperly dismissed petitioner’s claim concerning his decision to not testify at trial, as it is contradicted by the record and, therefore, his ineffective

- assistance cla im premised on that allegation presents an indisputably meritless legal theory. ¶ 19 III. CONCLUSION ¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Boone County. ¶ 21 Affirmed

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