ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Kirkpatrick, 2012 IL App (2d) 100898

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

RYAN C. KIRKPATRICK, Defendant-Appellant.

 District & No. Second District

Docket No. 2-10-0898

Filed April 17, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The dismissal of defendant’s postconviction petition was affirmed where

the alleged deficiencies in the filings of defendant’s postconviction

counsel were harmless in light of the substance of counsel’s certificate

and his representations to the trial court, no per se conflict of interest

existed as a result of the trial court’s appointment of defendant’s trial

counsel to represent him on his postconviction petition, the record did not

support defendant’s contention that he was denied the reasonable

assistance of postconviction counsel, and postconviction counsel’s failure

to provide a properly notarized supporting affidavit was rendered moot

when the State moved to dismiss the petition on the merits and did not

challenge the alleged procedural defects, a hearing was held, and the trial

court ruled on the merits.

Decision Under 

Review

Appeal from the Circuit Court of McHenry County, No. 06-CF-163; the

Hon. Rosemary Collins, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Alan D. Goldberg and Jennifer L. Bontrager, both of State Appellate

Defender’s Office, of Chicago, for appellant.

Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M. Bauer

and Edward R. Psenicka, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with

opinion.

Justices McLaren and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Ryan C. Kirkpatrick, appeals the trial court’s second-stage dismissal of his

petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/art. 122 (West

2008)). Defendant contends, inter alia, that he received the unreasonable assistance of

postconviction counsel. The State counters that (1) we lack jurisdiction or (2) we should

dismiss this appeal based on defects in the pleading; or (3) we should affirm because

defendant received the reasonable assistance of counsel. We affirm.

¶ 2 In 2006, defendant was indicted on two counts of threatening a public official (720 ILCS

5/12-9(a)(1)(i) (West 2004)). Following a jury trial, defendant was convicted, and he was

sentenced to 14 years’ imprisonment. Defendant’s conviction was affirmed on direct appeal.

People v. Kirkpatrick, No. 2-07-0323 (2009) (unpublished order under Supreme Court Rule

23).

¶ 3 On June 15, 2009, defendant filed a pro se postconviction petition alleging multiple

claims, including a claim that his trial counsel was unable to provide effective assistance

because the trial court and the prison failed to allow communication with counsel and to

allow access to discovery materials. Defendant attached various documents to the petition.

On January 26, 2010, defendant filed a motion to appoint a special public defender due to

a conflict of interest. On March 5, 2010, the trial court conducted a hearing. The trial court

informed defendant that his petition had proceeded to the second stage and inquired “on the

record” what his “position was with respect to [his] representation.” Defendant responded

that he wanted his trial counsel to represent him. The trial court asked, “So you’re not

alleging any conflict with him at all,” and defendant replied, “No.” The trial court granted

defendant’s request.

¶ 4 On August 13, 2010, counsel filed an amended petition for postconviction relief. Counsel

alleged that (1) defendant was prejudiced by the length of time that elapsed between the time

the act occurred and the time of the filing of the indictment; (2) the prosecutor failed to

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disclose his submission for a judgeship, which resulted in a conflict of interest involved in

the prosecution of this case; (3) a prosecutor erred on the record when he stated that various

other crimes could not be charged as the statute of limitations had run on the crimes; and (4)

he was given insufficient access to his discovery documents to assist in his defense. Counsel

also filed a “Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d),” in

which he stated that he attempted to consult with defendant, reviewed the court file and

record of proceedings, and made any necessary amendments.

¶ 5 On August 24, 2010, the State filed a motion to dismiss, and on August 25, 2010, it filed

an amended dismissal motion. The State argued that every issue defendant raised could have

been raised on direct appeal, and therefore the issues were waived. The State also argued that

dismissal would be proper because the petition failed to “clearly set forth the respects” in

which his constitutional rights were violated, as required by section 122-2 of the Act (725

ILCS 5/122-2 (West 2008)). The State further requested dismissal based on defendant’s

failure to attach to his petition affidavits, records, or other evidence supporting his

allegations, as required by section 122-2 of the Act.

¶ 6 On August 31, 2010, the trial court conducted a hearing on defendant’s amended

postconviction petition and the State’s dismissal motion. At the hearing, postconviction

counsel informed the trial court that he had spoken with defendant a couple of times and had

written communication with him. Counsel further informed the trial court that he had

reviewed defendant’s postconviction petition and discussed with defendant the petition and

changes to the petition. Following argument of the parties, the trial court granted the State’s

motion to dismiss. In doing so, the trial court found that, despite the lapse of time between

the event and the indictment, the State did not violate the statute of limitations and the lapse

of time did not constitute a violation of defendant’s rights. With respect to the second issue,

the trial court found it waived because defendant could have raised the issue on direct appeal.

The trial court found that the third issue had no constitutional merit. With respect to the

fourth issue, the trial court indicated that it followed the supreme court’s rules concerning

discovery. In granting the State’s motion to dismiss, the trial court concluded that defendant

failed to raise any issue that amounted to a constitutional violation of his rights and that he

had waived many of the issues, which could have been raised on direct appeal. Defendant

filed a timely notice of appeal.

¶ 7 Defendant argues that his counsel provided unreasonable assistance by failing to file a

proper certificate under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) and by failing

to make necessary amendments to the petition or provide supporting affidavits. The State

first argues that we lack jurisdiction because the petition was not verified by a notarized

affidavit. Secondly and alternatively, the State asks that we affirm the dismissal and find that

counsel did not provide unreasonable assistance.

¶ 8 Initially, we reject the State’s claim that we lack jurisdiction over the appeal because the

postconviction petition was not verified by a notarized affidavit. See People v. Nitz, 2011 IL

App (2d) 100031, ¶ 12 (determining that jurisdiction was not based upon a fully executed

affidavit).

¶ 9 Turning to the merits, defendant arguesthat his counsel provided unreasonable assistance

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by failing to file a proper certificate under Rule 651(c) and by failing to make necessary

amendments to the petition or provide supporting affidavits. The State asks that we affirm

the dismissal and find that counsel did not provide unreasonable assistance.

¶ 10 The Act provides a method bywhich persons under criminal sentence can assert that their

convictions were the result of a substantial denial of their rights under the United States or

the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2008); People v. Ligon, 239

Ill. 2d 94, 103 (2010) (citing People v. Petrenko, 237 Ill. 2d 490, 495-96 (2010)). A

postconviction proceeding is a collateral attack on the prior conviction or sentence that does

not relitigate a defendant’s innocence or guilt. Ligon, 239 Ill. 2d at 103 (citing People v.

Evans, 186 Ill. 2d 83, 89 (1999)).

¶ 11 Proceedings under the Act are commenced by the filing of a petition in the circuit court

in which the original proceeding took place. People v. Hansen, 2011 IL App (2d) 081226,

¶ 18 (citing People v. Jones, 211 Ill. 2d 140, 144 (2004)). A postconviction proceeding that

does not involve the death penalty consists of three stages. At the first stage, the defendant

files a petition and the trial court has 90 days in which it may review the petition without the

input of any party and summarily dismiss it if the court finds it frivolous or patently without

merit. 725 ILCS 5/122-2.1(a)(2) (West 2008); Hansen, 2011 IL App (2d) 081226, ¶ 18

(citing Jones, 211 Ill. 2d at 144). To survive summary dismissal, the petition must present

only the gist of a constitutional claim. People v. Hodges, 234 Ill. 2d 1, 9 (2009); Hansen,

2011 IL App (2d) 081226, ¶ 18 (citing Jones, 211 Ill. 2d at 144).

¶ 12 At the second stage, counsel may be appointed for the defendant, if the defendant is

indigent. 725 ILCS 5/122-4 (West 2008); People v. Pendleton, 223 Ill. 2d 458, 472 (2006).

After an appointment, Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) requires

counsel: (1) to consult with the defendant by mail or in person; (2) to examine the record of

the challenged proceedings; and (3) to make any amendments that are “necessary” to the

petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42 (2007).

¶ 13 The Act further provides that, after counsel has made any necessary amendments to the

petition, the State maymove to dismissit. Pendleton, 223 Ill. 2d at 472 (discussing 725 ILCS

5/122-5 (West 2000)); see also Perkins, 229 Ill. 2d at 43. If the State moves to dismiss, the

trial court may hold a dismissal hearing, which is still part of the second stage. People v.

Coleman, 183 Ill. 2d 366, 380-81 (1998). A trial court is foreclosed “from engaging in any

fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this

point in the proceeding.” Coleman, 183 Ill. 2d at 380-81. A court reviewing a dismissal of

a postconviction petition without an evidentiary hearing will do so de novo. People v.

Edwards, 195 Ill. 2d 142, 156 (2001) (citingColeman, 183 Ill. 2d at 389). In the present case,

the trial court dismissed defendant’s petition at the second stage; therefore, our review is de

novo.

¶ 14 In the present case, the record does not establish that postconviction counsel was

unfamiliar with the Act’s requirements. Counsel is presumed to know the law. See People

v. Holman, 164 Ill. 2d 356, 369 (1995) (courts recognize a strong presumption that attorneys

are competent). Although defense counsel filed a certificate with the caption that it was

pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 13, 2005), the contents of the

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certificate were also consistent with the requirements of Rule 651(c). See People v. Williams,

186 Ill. 2d 55, 59 n.1 (1999) (stating that the failure to file a proper affidavit certifying

compliance with Rule 651(c) is harmless if the record demonstrates that counsel adequately

fulfilled his or her duties, as the filing rule is not a rule of strict compliance). Despite

counsel’s failure to state that he satisfied his duties under the proper rule, the remaining

substantive contents reflected that he attempted to consult with defendant, reviewed the court

file and record of proceedings, and made any necessary amendments. Furthermore, at the

hearing on the State’s motion to dismiss, counsel informed the trial court that he had spoken

with defendant a couple of times and had written communication with him. Counsel further

informed the trial court that he had reviewed defendant’s postconviction petition and

discussed with defendant the petition and changes to the petition. We conclude that any

deficiencies in postconviction counsel’s filing were harmless in light of the substance of

counsel’s certificate and counsel’s representations to the trial court.

¶ 15 Defendant next contends that he did not knowingly and intelligently waive the conflict

created when the trial court appointed the same attorney who represented him at trial to also

represent him on his postconviction petition. Defendant argues that the trial court failed to

explain the conflict, its significance, and how it could affect postconviction counsel’s

representation of him.

¶ 16 “A criminal defendant’s sixth amendment right to effective assistance of counsel includes

the right to conflict-free representation.” People v. Taylor, 237 Ill. 2d 356, 374 (2010).

“Unless a defendant waives his or her right to conflict-free representation, a per se conflict

of interest is grounds for automatic reversal.” Id. at 375. However, a per se conflict does not

exist merely because a defendant questions his attorney’s competence during posttrial

proceedings. People v. Perkins, 408 Ill. App. 3d 752, 762 (2011).

¶ 17 In the present case, we review the underlying allegations of incompetence to determine

whether an actual conflict of interest exists. See People v. Davis, 151 Ill. App. 3d 435, 443

(1986). Defendant alleged that his trial counsel was unable to provide effective assistance

because the trial court and the prison failed to allow communication with counsel and to

allow access to discovery materials. Defendant does not appear to take issue with his trial

counsel’s competence but, rather, seems to express frustration with the court and the prison

system. Although defendant alleged in his pro se postconviction petition that he was denied

a fair trial and questioned counsel’s effectiveness, he advanced no substantive allegations in

support of the claim. See People v. Williams, 139 Ill. 2d 1, 12 (1990) (stating that bare

allegations of a conflict are not enough). To the extent there was any issue regarding

defendant’s desire to advance a claim regarding the effectiveness of his trial counsel in his

amended postconviction petition, the trial court sufficientlyinquired as to defendant’s wishes

for representation. We conclude that no per se conflict existed when defendant’s trial counsel

represented him during the postconviction proceedings.

¶ 18 Defendant’s next issue concerns the sufficiency of the amended postconviction petition.

Defendant argues that postconviction counsel failed to provide a reasonable level of

assistance because counsel failed to amend the postconviction petition as necessary and

failed to attach supporting affidavits. Defendant asserts that counsel largely copied his pro

se claims, failed to cite relevant case law, failed to include legal arguments, and attached no

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evidence supporting the claims.

¶ 19 To proceed beyond the second stage of proceedings under the Act, a defendant must

make a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d at 473. Only

upon a substantial showing of a constitutional violation is a defendant entitled to a third-stage

evidentiary hearing. See People v. Spreitzer, 143 Ill. 2d 210, 218 (1991) (a defendant is not

entitled to an evidentiary hearing unless the allegations in his postconviction petition,

supported by the trial record and the accompanying affidavits, make a substantial showing

that his constitutional rights were violated).

¶ 20 Our supreme court has repeatedlyheld that postconviction counsel must perform specific

duties in his or her representation as provided by Rule 651(c). People v. Greer, 212 Ill. 2d

192, 204-05 (2004). This rule requires that counsel meet with defendant to ascertain

contentions of error and amend, if necessary, the pro se petition so as to adequately present

those issues. Though these requirements do not obligate counsel to advance frivolous or

spurious claims (id. at 205), a defendant is entitled to a “ ‘reasonable’ ” level of assistance

of postconviction counsel (Perkins, 229 Ill. 2d at 42 (quoting Pendleton, 223 Ill. 2d at 472)).

¶ 21 Defendant’s argument that postconviction counsel failed to provide a reasonable level

of assistance is unavailing. Defendant primarily relies on People v. Waldrop, 353 Ill. App.

3d 244 (2004). In Waldrop, the defendant asserted that his postconviction counsel was

unreasonable for failing to contact an eyewitness. Id. at 250. In his pro se petition, the

defendant attached a report from a police department indicating that an officer spoke with

a witness but the witness, despite witnessing the crime, did not want to get involved. Id. The

allegation was realleged nearly verbatim in the defendant’s amended petition, but

postconviction counsel did not attach a supporting affidavit explaining the significance of

the witness’s testimony or why the supporting documentation was absent. Id. During

argument on the State’s motion to dismiss, postconviction counsel stated that he did not

think evidentiary support was necessary for the defendant’s allegation and contended that the

defendant’s verification was sufficient evidentiary support to make a substantial showing of

a constitutional violation. Id. The reviewing court noted that, when ruling on a motion to

dismiss a petition not supported by an affidavit, a trial court may reasonably presume that

postconviction counsel made a concerted effort to obtain affidavits in support of the claims

despite being unable to do so. The reviewing court further stated:

“[I]n this case, that presumption is flatly contradicted by the record. Postconviction

counsel mistakenly believed that he did not have a duty to seek an affidavit from the

witness specifically identified in [the] defendant’s pro se petition.” Id.

As a result, the reviewing court concluded that postconviction counsel’s representation fell

below a reasonable level of assistance, in violation of Rule 651(c). Id. at 250-51. The

reviewing court concluded that, “[a]t a minimum, [postconviction] counsel was obligated to

obtain evidentiary support for claims raised in the pro se petition.” Id. at 251.

¶ 22 We find Waldrop distinguishable from the current matter and, therefore, unpersuasive.

In Waldrop, the presumption that counsel made a concerted effort to obtain affidavits and

other supporting documentation was clearly and unequivocally refuted by postconviction

counsel’s representation to the trial court that he did not believe evidentiary support was

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necessary. Id. at 250. Conversely, the record here is not so clear, and therefore the

presumption that defendant’s postconviction counsel made a concerted effort to obtain

affidavits in support of the claims is not rebutted. See id.

¶ 23 Specifically, defendant’s amended postconviction petition raised the issues of the lapse

of time between the alleged offense occurring and the State bringing charges, the prosecuting

attorney being nominated for a judgeship, alleged legal misrepresentations by the

prosecution, and the denial of the effective assistance of counsel. In support of these

allegations, defendant submitted supporting documentation. With respect to defendant’s

argument that he was denied the effective assistance of counsel because he did not have

access to discovery documents, defendant’s documentation in support of his pro se petition

clearly sets forth that trial counsel filed a motion for defendant to have access to discovery,

but the trial court denied that motion. Therefore, defendant’s claim of being denied the

effective assistance of counsel was based on the actions of the trial court, not trial counsel.

Similarly, defendant does not identify the additional evidence that needed to be submitted

with the amended petition to support his allegation that the prosecutor had a conflict of

interest resulting from his candidacyfor a judgeship. Finally, defendant represents in his brief

before this court that postconviction counsel failed to adequately shape his pro se claim of

a violation pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). However, because that

claim lacked merit, counsel properly did not reallege it in his amended petition.

¶ 24 In short, unlike in Waldrop, the record is devoid of a “flat contradiction” that overcomes

the presumption that postconviction counsel made a concerted effort to obtain supporting

documents. As a result, we reject defendant’s contention that he was denied the reasonable

assistance of postconviction counsel.

¶ 25 Last, defendant argues that his postconviction counsel failed to adequately represent him

under Rule 651(c) because he failed to provide a properly notarized affidavit, and his

inclusion of a certification under section 1-109 of the Code of Civil Procedure (see 735 ILCS

5/1-109 (West 2008)) did not cure that failure. Defendant asks that we remand for

appointment of new counsel, which is what the reviewing court did in Nitz. For the same

reasons, the State asks that we affirm the dismissal.

¶ 26 Insofar as we have already upheld the trial court’s second-stage dismissal of defendant’s

postconviction petition on the merits, we need not seek out an alternative, procedural defect

on which to substantively decide the appeal. See People v. Johnson, 208 Ill. 2d 118, 129

(2003) (stating that a reviewing court may affirm a trial court’s judgment on any ground

appearing in the record). Moreover, our supreme court would prefer that we do not. See

Petrenko, 237 Ill. 2d at 505 (noting that courts need not consider issues where they are not

essential to the disposition of the cause or where the result will not be affected regardless of

how the issues are decided).

¶ 27 We recognize People v. Carr, 407 Ill. App. 3d 315 (2011), as it is a published decision

from this court (this author and Justice McLaren here concurring); however, Carr does not

explain why it chose to address and resolve the appeal based on a procedural defect that was

not addressed by the lower court prior to appellate review. See People v. Sparks, 393 Ill.

App. 3d 878, 883 (2009) (stating that, at the dismissal stage of a postconviction proceeding,

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the trial court is concerned merely with determining whether the petition’s allegations

sufficiently demonstrate a constitutional infirmity that would necessitate relief under the

Act). We also recognize Nitz as it is a published decision from this court; however, we

believe in the instant case that the notarization and certification issues are not justiciable and

need not be addressed in this appeal. Once the State moved to dismiss on the merits and did

not challenge the alleged procedural defects, and once the trial court conducted a hearing,

during which neither party raised the alleged procedural defects, and presented its ruling

based on the merits, the purported notarization and certification issues became moot.

¶ 28 Furthermore, we believe that our resolution of the current matter is more consistent with

the spirit and purpose of the Act. See People v. Taylor, 237 Ill. 2d 356, 372 (2010) (stating

that the purpose of a postconviction proceeding is to permit inquiry into constitutional issues

involved in the original trial that have not been, and could not have been, adjudicated

previously upon direct review). Our method of resolution also comports with our supreme

court’s long-held view that the Act in general must be “ ‘liberally construed to afford a

convicted person an opportunity to present questions of deprivation of constitutional

rights.’ ” People v. Rissley, 206 Ill. 2d 403, 421 (2003) (quoting People v. Correa, 108 Ill.

2d 541, 546 (1985)). And finally, under the auspices of fairness, we believe that reviewing

and addressing the merits of a postconviction petition provide a more just result to a person

under a criminal sentence. See People v. Boclair, 202 Ill. 2d 89, 101-02 (2002) (noting that,

if a postconviction petition is untimely filed but has obvious substantive merit, i.e., if it

clearly demonstrates that a prisoner suffered a deprivation of constitutional magnitude, a

dutiful prosecutor should waive the procedural defect). For all of these reasons, we decline

to apply the holdings of Carr and Nitz to the circumstances of the present case.

¶ 29 Accordingly, we affirm the judgment of the circuit court of McHenry County.

¶ 30 Affirmed.

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