2021 IL App (4th) 200145-U 

NO. 4-20-0145 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

DAKODA DASHON PHERIGO, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

McLean County 

No. 11CF737 

Honorable 

John Casey Costigan, 

Judge Presiding.

 

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justices Cavanagh and Harris concurred in the judgment.

ORDER

¶ 1 Held: We affirm the order of the circuit court dismissing defendant’s postconviction 

petition at the second stage of proceedings.

¶ 2 Defendant, Dakoda Dashon Pherigo, appeals from an order of the circuit court of 

McLean County, granting the State’s motion to dismiss his postconviction petition at the second 

stage of proceedings. On appeal, defendant contends his postconviction counsel provided 

unreasonable assistance. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 In September 2011, a grand jury indicted defendant with one count of aggravated 

battery (720 ILCS 5/12-4.2(a)(1) (West 2010)), two counts of aggravated discharge of a firearm 

(720 ILCS 5/24-1.2(a)(1), (a)(2) (West 2010)), and one count of burglary (720 ILCS 5/19-1(a) 

FILED

December 16, 2021

Carla Bender

4th District Appellate

Court, IL

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). 
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(West 2010)). In April 2012, a jury found defendant guilty of both counts of aggravated 

discharge of a firearm and burglary but not guilty of aggravated battery. 

¶ 5 In June 2012, the trial court sentenced defendant to concurrent terms of 14 years’ 

imprisonment for count I of aggravated discharge of a firearm, 9 years’ imprisonment for 

count II of aggravated discharge of a firearm, and 5 years’ imprisonment for burglary. In October 

2012, defendant appealed, arguing his motion for a mistrial should have been granted. This court 

affirmed the trial court’s judgment. See People v. Pherigo, 2014 IL App (4th) 120996-U. On 

March 25, 2015, the Illinois Supreme Court denied defendant’s petition for leave to appeal. 

¶ 6 In January 2019, defendant filed a “Pro-se Petition for Post-Conviction Relief.” 

Defendant acknowledged his petition was not timely filed but argued his trial counsel failed to 

advise him of pending legislation raising the age of automatic transfer to adult court from 15 to 

16. Although defendant stated in his petition he “was 17 at the time of offense,” he argued his 

constitutional rights were violated where his case should have been heard in juvenile court and, 

as a result, he received ineffective assistance of counsel. 

¶ 7 In April 2019, the trial court advanced defendant’s petition to the second stage of 

postconviction proceedings. The court appointed counsel and granted counsel leave to amend the 

pro se petition if necessary. Counsel later filed amendments to defendant’s pro se postconviction 

petition, adding the following claims: (1) trial counsel failed to inform defendant whether any 

plea offers had been made by the State, (2) defendant alleged his trial counsel informed the State 

he would “give them [defendant],” and (3) trial counsel did not adequately argue defendant’s 

youth as a mitigating factor at the sentencing hearing. 

¶ 8 Counsel also filed a certificate in accordance with Illinois Supreme Court Rule 

651(c) (eff. July 1, 2017). The Rule 651(c) certificate stated counsel consulted with defendant 
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“by mail or in person,” ascertaining defendant’s contentions of deprivation of constitutional 

rights. Counsel specifically referenced letters to defendant on August 30, 2019, September 4, 

2019, and September 11, 2019. Counsel further stated he examined the record of proceedings 

and made amendments to defendant’s pro se petition necessary for an adequate presentation of 

defendant’s contentions. 

¶ 9 In August 2019, the State filed a motion to dismiss, arguing (1) defendant’s 

petition was untimely, (2) defendant failed to make a substantial showing of a constitutional 

violation, and (3) defendant’s ineffective assistance of counsel claims were barred by 

res judicata. Following a hearing on the motion, the court entered an order finding the petition 

time barred and granting the State’s motion. 

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant argues his postconviction counsel failed to provide 

reasonable assistance, citing counsel’s failure to (1) properly amend defendant’s pro se

postconviction petition to present defendant’s claims to the trial court in appropriate legal form 

and (2) attach necessary affidavits. 

¶ 13 The Post-Conviction Hearing Act (Act) provides a procedural mechanism through 

which a defendant may assert a substantial denial of his constitutional rights in the proceedings 

which resulted in his conviction. 725 ILCS 5/122-1 et seq. (West 2018). At the first stage of a 

postconviction proceeding, the trial court independently reviews the defendant’s petition, taking 

the allegations as true, and determines if it is frivolous or patently without merit. People v. 

Hodges, 234 Ill. 2d 1, 10, 912 N.E.2d 1204, 1208-09 (2009). If the postconviction petition is not 

summarily dismissed, as here, it advances to the second stage, where the State may file a motion 
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to dismiss the petition, and the court must determine whether the petition and any accompanying 

documents make a substantial showing of a constitutional violation. Hodges, 234 Ill. 2d at 10-11, 

912 N.E.2d at 1208-09. At the second stage of proceedings, the court takes “all well-pleaded 

facts that are not positively rebutted by the trial record” as true. People v. Pendleton, 223 Ill. 2d 

458, 473, 861 N.E.2d 999, 1008 (2006). If the petition fails to make a substantial showing of a 

constitutional violation, it is dismissed; if such a showing is made, the postconviction petition 

advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 

(West 2018). We review a dismissal of a petition at the second stage de novo. People v. 

Whitfield, 217 Ill. 2d 177, 182, 840 N.E.2d 658, 662 (2005). 

¶ 14 Under the Act, a defendant is entitled to “reasonable” assistance of counsel. 

People v. Perkins, 229 Ill. 2d 34, 42, 890 N.E.2d 398, 402-03 (2007). To ensure that a defendant 

receives reasonable assistance of counsel, Rule 651(c) requires that the record in the trial court 

contain a showing, which may be made by the certificate of the defendant’s attorney, that the 

attorney: (1) “has consulted with the [defendant] *** to ascertain his or her contentions of 

deprivation of constitutional rights,” (2) “has examined the record of the proceedings at the 

trial,” and (3) “has made any amendments to the petitions filed pro se that are necessary for an 

adequate presentation of [defendant’s] contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); see 

also Perkins, 229 Ill. 2d at 42. Compliance with Rule 651(c) is mandatory. People v. Lander, 215 

Ill. 2d 577, 584, 831 N.E.2d 596, 600 (2005). 

¶ 15 The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that 

postconviction counsel complied with the requirements of the rule and provided reasonable 

assistance. People v. Wallace, 2016 IL App (1st) 142758, ¶ 26, 67 N.E.3d 976. In the instant 
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case, postconviction counsel filed a Rule 651(c) certificate, and thus there is a rebuttable 

presumption that postconviction counsel rendered reasonable assistance.

¶ 16 Defendant argues the record rebuts the presumption his postconviction counsel 

complied with Rule 651(c) and provided reasonable assistance. Specifically, defendant argues 

his counsel failed to (1) properly amend his pro se postconviction petition to assert defendant’s 

claims in proper legal form and (2) attach necessary affidavits. See Perkins, 229 Ill. 2d at 44

(“[T]he purpose of Rule 651(c) is to ensure that counsel shapes the petitioner’s claims into 

proper legal form and presents those claims to the court.”). Thus, counsel failed to ensure 

defendant’s claims were not barred by waiver. See Perkins, 229 Ill. 2d at 46 (“[A] prosecutor 

would have no reason to waive the defense of untimeliness if a meritorious constitutional claim 

is not presented in the petition.”) The State responds (1) defendant’s petition was untimely filed

and (2) postconviction counsel provided defendant with a reasonable level of assistance with his 

petition and substantially complied with the requirements of Rule 651(c). We initially observe 

that defendant has raised no issue regarding the timeliness or merits of his petition or asserted 

that counsel failed to abide by the other requirements of Rule 651(c). We find defendant has 

waived those issues for review. See Pendleton, 223 Ill. 2d at 476. 

¶ 17 Defendant has not alleged how postconviction counsel could or should have 

amended defendant’s claims to present them in proper legal form. Defendant claimed he received 

ineffective assistance of counsel when his trial counsel failed to advise him of pending 

legislation raising the age of automatic transfer to adult court from 15 to 16. He argued his 

constitutional rights were violated where his case should have been heard in juvenile court. 

Defendant’s claim was without merit, however, as defendant stated in his petition he “was 17 at 

the time of offense.” 
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¶ 18 Moreover, “in addition to the information alleged in Defendant’s [pro se

petition],” counsel claimed (1) trial counsel failed to inform defendant whether any plea offers 

had been made by the State, (2) defendant alleged his trial counsel informed the State he would 

“give them [defendant],” and (3) trial counsel did not adequately argue defendant’s youth as a 

mitigating factor at the sentencing hearing, citing Roper v. Simmons, 543 U.S. 551 (2005) and 

Graham v. Florida, 560 U.S. 48 (2010). The Act does not require counsel to advance frivolous 

or spurious claims on defendant’s behalf. Pendleton, 223 Ill. 2d at 472. Further, we do not agree 

counsel’s failure to attach affidavits of “off the record” conversations counsel had with 

defendant’s family members rebuts the presumption counsel provided defendant reasonable 

assistance. See People v. Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511, 519 (2004) (finding where

amendments to a pro se postconviction petition would only further a frivolous and patently 

nonmeritorious claim, they are not “necessary” within the meaning of Rule 651(c)). Defendant 

has failed to rebut the presumption his counsel provided reasonable assistance in conformity with 

the requirements of Rule 651(c). Consequently, we conclude defendant’s claim must fail.

¶ 19 Defendant also contends postconviction counsel provided unreasonable assistance 

where he failed to amend defendant’s petition to allege ineffective assistance of appellate 

counsel, suggesting a claim “that trial counsel failed to argue [defendant’s] age was a mitigating 

factor at sentencing and could have been raised on direct appeal.” Defendant does not argue there 

is any merit to this claim, and further, the record contradicts defendant’s claim. As stated above, 

if an amendment to a pro se petition would only further a frivolous or patently nonmeritorious 

claim, then it is not a “necessary” amendment within the meaning of Rule 651(c). Greer, 212 Ill. 

2d at 205. 
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¶ 20 Defendant likens his case to People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725

(1999), asserting “[Turner] is illustrative of the unreasonableness of [defendant]’s postconviction 

counsel.” However, Turner is factually distinguishable from this case. In Turner, there was no 

indication postconviction counsel filed a Rule 651(c) certificate, and the supreme court

enumerated a multitude of errors committed by postconviction counsel, finding “post-conviction 

counsel’s performance was so deficient that it amount[ed] to virtually no representation at all.”

Turner, 187 Ill. 2d at 413-16. Here, postconviction counsel filed a Rule 651(c) certificate, which 

gave rise to the rebuttable presumption that he performed the duties required of him under that 

rule, and defendant has failed to rebut the presumption. 

¶ 21 Under these circumstances, we conclude postconviction counsel provided 

defendant a reasonable level of assistance with his petition, complied with the requirements of 

Rule 651(c), and defendant’s contrary contention is without merit.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we affirm the trial court’s judgment. 

¶ 24 Affirmed.