## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RYAN C. KI RKPATRI CK, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-10-0898

Filed April 17, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The dismiss al of defe ndant’s postconviction petition was aff irmed wher e the alleg ed defic iencies in the filings of defe ndant’ s p ostconviction counsel wer e harml es s in light of the substance of counsel’s cer tificate and his repr esentations to the trial court, no per se conflict of interest exis ted as a result of the trial court’s appointment of defe ndant’s trial counsel to repr esent him on his postconviction petition, the rec ord did not support defe ndant’s contention that he was denied the reas onable assistance of p o s tc o nv ic ti o n c o u n s e l, a n d p ostconviction counsel’s failure
to provide a properly notarized s up p o rt i ng aff idavit was render ed moot when the St at e m o v ed to dismiss the petition on the merits and did not challeng e the alleg ed proce dural defe cts, a hearing was held, and the trial court rule d on the merits.

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 06-CF- 163; the Hon. Rosemary

Colli ns, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Alan D. Goldberg and J ennife r L

. Bontra g er, both o f State Appellate Def ender ’s Off

ice, of Chicag o, for a

ppellant.

L ouis A. B ianchi, State’s Attorne y , of W oodstock (L awr ence M. Ba uer and Edwar d R. Psenicka, b o th of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE HUTCH I NS ON delivere d the judgme nt of the court, with opinion.
J ustices McL are n and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Ryan C. Kirkpatrick, appe als the t rial court’s second- stag e dismissal of his petition filed under the Post-Conviction Hea ring Act (the Ac t) (725 I L CS 5/ art. 122 (West 2008)). Def

endant contends, inter alia
, that he rec eived the unrea son ab l e assistance of postconv i ct i o n co u n sel. The State counter s that (1) we lack jurisdiction or (2) we should dismiss this appea l based on defe cts in the pleading ; o r (3 ) we should aff irm beca use defe ndant re ceive d the re asonable assistance of counse l. We affirm. ¶ 2 In 2006, defe ndant was indicted on two counts of threatening a public officia l (720 I L CS 5/12-9(a) (1)( i) (West 2004)). Following a jury trial, defendant was convicted, and he was sentenc ed to 14 year s’ imprisonment. Def endant’ s conviction was aff irmed on direc t appea l. People v. Kirkpatrick
, No. 2-07-0323 (2009) (unpublished order under Supreme Court Rule 23). ¶ 3 On J une 15, 2009, defe ndant filed a p r o s e p o s tconviction petition alleg ing multiple claims, including a claim t h at h i s trial counsel was unable to provide eff ective assistance beca use the trial court and the prison failed to al l o w communication with counsel and to allow ac cess to disc overy materia ls. D efe ndant attache d various documents to the petition. On J anuar

y 26, 2010, defe ndant fil ed a motion t o ap p o int a special public defe nder due to

a conflict of interest. On Marc h 5, 2010, the trial court conducte d a hearing. The trial court informed defe ndant that his petition had proce eded to the second stag e and inquired “on the

rec ord” what his “position was with respe ct t o [hi s] repr esentation.” Def endant responded that he wanted his trial counsel to repr esent him. Th e t ri al co urt asked, “So you’re not alleg ing any conflict with him at all,” and defenda nt replied, “No.” The t rial court grante d defe ndant’s re quest. ¶ 4 On August 13, 2010, counsel filed an amende d petition for pos tc o nv iction relief . Counsel alleg ed that (1) defe ndant was prejudice d by the leng th of time that elapse d betwee n the time the act o cc u rr ed and the time of the filing of the indictment; (2) the prosec utor failed to

-2-disclose his submission f or a judg eship, which re sulted in a conflict of interest involved in the prosec ution of this case ; (3) a prosec utor err ed on the rec ord when he stated that various other crimes could not be charg ed as the statute of limit ations had run on the crimes; and (4) he was g iven insufficient acc ess to his discovery documents to assist in his defe nse. Counsel also filed a “Certific ate of Counsel Pursuan t t o I l l i n ois Supreme Court Rule 604(d),” in which he stated that he attempted to consult with defe ndant, revie wed the co u rt fi l e and

rec ord of pr ocee dings, a

nd made a

ny nece ssary

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

an amende d dismiss al motion. The State argued that ever y issue defe ndant raised could have been raised on direc t appea l, and there fore the issues wer e waived. The State also argued that dismiss al would be proper beca use the petition failed to “cle arly set forth the respe cts” in which his constitutional rights wer e viol ated, as require d by section 122-2 of the Act (725 I L CS 5/122-2 (West 2008)). The State further reque sted dism i s s al b as ed on defe ndant’s failure to attach to h i s petition aff idavits, rec ords, or other evidenc e supporting his alleg ations, as re quired by section 122-2 of

the Act. ¶ 6 On August 31, 2010, the trial co u rt co n du ct ed a h ea ri n g on defe ndant’s ame nded postconvict ion petition and the State’s dismiss al motion. At the hearing, postconviction counsel informed the trial court that he had spoken with defe ndant a couple of times and had written communication with him. Counsel further informed the trial cour t that he had revie wed defe ndant’s postconviction petition and discussed with defe ndant the petition and chang es to the petition. Following argument of the parties, the trial court grante d the State’s motion to di smiss. In doing so, the trial court found that, despite the lapse of time be tween the event and the indictment, the State did not violate the statute of limit ations and the lapse of time did not constitute a violation of defe ndant’s rights. Wit h respe ct to the second issue, the trial court found it waived beca use defe ndant could have raised the issue on direc t appea l. The trial court found that the third issue h ad n o co n stitut ional merit. Wit h respe ct to the fourth is sue, t he trial court indi cate d that it followed the s up reme court’s rules conce rning discovery

. In g ranting the State’s motion to dismiss
, the trial court conclude d that defe ndant failed to r aise any issue that amounted to a constitutional violation of his rights and that he had waived m any of th e i s s ues, which could have been raised on direc t appea l. Def endant filed a timely

notice of a

ppeal. ¶ 7 Def

endant argues t hat hi s counsel provided unrea sonable assistance by failing to file a
proper cer tificate under I llinois Supreme Court Rule 651(c) (ef f. Dec

. 1, 1984) and by failing
to make nece ssar y amendments to the petition or provide supporting aff idavits. The State first argues that we lack jurisdict i o n b ec ause the petition was not verifie d by a notarized aff idavit. Secondly and alternatively
, the State asks that we aff irm the dismiss al and find that counsel did not provide unr easona ble assistance

. ¶ 8 Initially
, we reje ct the State’s claim that we lack jurisdiction over the appea l beca use the postconviction petition was not verifie d by a notarized aff idavit. See People v. Nitz
, 2011 I L App (2d) 100031, ¶ 12 (dete rmining that jur i s d i ct i o n was not based upon a fully executed aff idavit). ¶ 9 Turning to the merits, defe ndant argues th a t h is c o u n s e l provided unrea sonable a ssistance

-3-by failing to file a proper cer tificate under Rule 651(c) and by fa i l i n g t o make nece ssary amendments to t he petition or provide suppor ting a ffidavits. The State asks that we affirm the dismissal and find that counsel did not provide unr easona ble assistance

. ¶ 10 The Act provides a method by which persons under criminal sentenc e can asser t that their convictions wer e the r esult of a substantial de nial of their rights unde r the United States or the I llinois Constitution or both. 725 I L CS 5/122-1(a) (1) (West 2008); People v. Ligon
, 239 I ll. 2d 94, 103 (2010) (citing P eo p l e v. Petrenk

o , 237 I ll. 2d 490, 495-96 (2010))

. A postconviction proce eding is a collater al attack on the prior conviction or sentenc e that does
not relitig ate a defe ndant’s innocenc e or guilt. Ligon
, 239 I ll. 2d at 103 (citing People v. Evans , 186 I ll. 2d 83, 89 (1999)). ¶ 11 Procee dings under the Act are commence d by the filing of a petition in the circ uit court in which the orig inal proce eding took place

. People v. Hansen
, 2011 I LApp (2d) 081226, ¶ 18 (citing People v. Jones
, 211 I ll. 2d 140, 144 (2004))

. A postconviction proce eding that does not involve the death pe nalty consists of three stag es. At the first stag e, the defe ndant files a petition and the trial court has 90 day s in which it may revie w the petition without the input of any party and summarily dismiss it if the court finds it frivolous or patently without merit

. 7 2 5 I L CS 5/122-2.1(a) (2) (West 2008); Hansen
, 2011 I L App (2d) 081226, ¶ 18 (citing Jones
, 211 I ll. 2d at 144). To survive sum mary dismiss al, t he petiti on must prese nt only the g ist of a constitutional cl ai m

. People v. Hodges
, 234 I ll. 2d 1, 9 (2009); Hansen
, 2011 I LApp (2d) 081226, ¶ 18 (citing Jones , 211 I ll. 2d at 144). ¶ 12 At t he second stag e, counsel may be appointed for the defe ndant, if t h e d ef en d an t i s indige nt. 725 I L CS 5/122-4 (West 2008); People v. Pendleton
, 223 I ll. 2d 458, 472 (2006). After an app o i n tm ent, I llinois Supreme Court Rule 651(c) (ef f. Dec

. 1, 1984) require s counsel: (1) to consult with the defe ndant by mail or in person; (2) to examine the rec ord of the challeng ed proce edings ; and (3) to make any amendments that are “nec essar y” to the petition previously filed by the pro se defe ndant. People v. Perkins
, 229 I ll. 2d 34, 42 (2007). ¶ 13 The Act further provides that, afte r counsel has made any nece ssary amendments to the petition, the State may move to dismiss it. Pendleton
, 223 I ll. 2d at 472 (discussing 725 I L CS 5/122-5 (West 2000) ); see also Perkins
, 229 I ll. 2d at 43. I f the State moves to dismiss, the trial court may hold a dismiss al hearing, which is s t i l l p art of the second stag e. People v. Coleman
, 183 I ll. 2d 366, 380-81 (1998) . A trial court is f orec losed “fr om e ng ag ing in a ny fac t-finding at a dismiss al hearing beca use all well-plea ded fac ts are to be taken as true at this point in the procee ding.” Coleman
, 183 I ll. 2d at 380-81. A court re viewinga dismissal of

a postconviction petition without an evidentiar y hearing will do so de novo. Peo p l e v. Edwards
, 195 I ll. 2d 142, 156 (2001) (citing Coleman
, 183 I ll. 2d at 389). In the prese nt case , the trial court dismiss ed defe ndant’s petition at the second stag e; there fore
, our revie w is de

novo

. ¶ 14 In the prese nt case , the rec ord does not establish t h at p o s t co n v i ct i o n co u n s el was unfamiliar with the Ac t’s require ments. Counsel is presumed t o know the law. See People

v. Holman
, 164 I ll. 2d 356, 369 (1995) (cour ts rec ognize a strong presumption that attorney s

are competent)

. Although d ef en s e counsel filed a cer

tificate with the caption that it was pursuant to I llinois Supreme Court Rule 604(d) (ef f. Dec

. 13, 2005), the contents of the

-4-cer tificate wer e also consistent with the require ments of Rule 651(c)

. See People v. W illiams
, 186 I ll. 2d 55, 59 n.1 (1999) (stating t h at t h e failure to file a proper aff idavit cer tifying compliance with Rule 651(c) is harmless if the rec ord demonstrates that counsel adequately fulfilled his or h er duties, as the filing rule is not a rule of strict compliance ). Despite counsel’s failure to state that he satisfied h i s duties under the proper rule, the rema ining substantive contents re f

le cted that he attempted to consult with defe ndant, revie wed the court file and rec ord of proce eding s, and made any nece ssary amendments. Fur thermore
, at the hearing on the State’s motion to dismiss
, counsel informed the trial court that he had spoken with defe ndant a couple of times and had written communication with him. Counsel further informed the trial cour t that he had revie wed defe ndant’s postconviction petition and discussed with defe ndant the petition and chang es to the petition. We conclude t h at any defic iencies i n p o s tconviction counsel’s filing wer e harmless in light of the substance of counsel’s c ertifica

te and c ounsel’s re prese ntations to the trial court. ¶ 15 Def

endant next contends that he did not knowingly and intelligently waive the conflict

cre ated when the trial court appointed the same attorney who repr esente d him at trial to also
repr esent him on his postconviction petition. Defenda nt argues that the trial c ourt failed to explain the conflict, its signific ance , and how it could aff ect postconvict i o n counsel’s
repr esentation of him. ¶ 16 “A criminal defe ndant’s six th amendment right to e f f e c ti v e a s s is ta

n c e o f c ounsel includes the right to co nflict-fr ee repr esentation.” People v. Taylor
, 237 I ll. 2d 356, 374 (2010). “Unless a defe ndant waives his or her right to conflict-f ree repr esentation, a per se conflict of interest is g rounds for automatic reve rsal.” Id. at 375. Howeve r, a per se conflict does not exis t mere ly beca

use a defe ndant questions his attorney ’s competenc e duri n g p o s t t rial
proce eding s. People v . Perkins , 408 I ll. App. 3d 752, 762 (2011). ¶ 17 In the prese nt case , we revie w the underly ing alleg ations of incompetenc e to de termine whether an actua l c onflict of interest exis ts. See People v. Davis
, 151 I ll. App. 3d 435, 443 (1 9 8 6 ). De fendant alleg ed that his trial counsel was unable to provide effe ctive assist ance beca use the t ri al court and the prison failed to allow communication with counsel and to allow acc ess to discovery materia ls. Def endant does not appea

r to take issue with his trial counsel’s competenc e but, rathe r, seems to express frustration with the court and the prison
sy stem. Although defe ndant alleg ed in his pro se postconviction petition that he was denied

a fair trial and questioned counsel’s eff ectivene ss, he advanc ed no substantive alleg ations in support of th e cl ai m

. S ee People v. W illiams
, 139 I ll. 2d 1, 12 (1990) (stating that bare alleg ations of a conflict are not enough). To the exten t th er e was any issue reg arding defe ndant’s desire to advanc e a c laim reg arding the eff ectivene ss of his tria l c ounsel in his

a men d e d p o s tc o nv iction petition, the trial court sufficie ntly inquired as to defe ndant’s wishes for repr esentation. We conclude that no per se conflict exis ted when defe ndant’s tria l counsel
repr esente d him during the postconviction proce eding s. ¶ 18 Def

endant’ s next issue conce rns the sufficie ncy of the amende d postconviction petition. Def endant argues that postconviction counsel failed to provide a rea sonable l ev el of assistance beca

use counsel failed to amend the postconvict i o n p et ition as nece ssary and failed to attach supportingaff idavits. Defe ndant asser

ts that counsel larg ely

copied his pro

se claims, failed to cite rele vant case law, failed to include leg al arguments, and attache d no

-5-evidenc e supportingthe claims.

¶ 19 To proce ed beyond the second stag e of proc ee d i n g s under the Act, a defe ndant must make a substantial showing of a constitutional violation. Pendleton
, 223 I ll. 2d at 473. Only
upon a substantial showing of a constitutional violation is a defe ndant entitled to a third-stag e evidentiar y hearing. See People v. Spreitzer
, 143 I ll. 2d 210, 218 (1991) (a defe ndant is not entitled to an evidentiar

y hearing unless the alleg ations in his postcon v i ction petition, supported by

the trial re cord a

nd the ac company

ing a ffidavits, makea substantial showing that his constituti onal rights were violated). ¶ 20 Our supreme court has repe atedly held that postconviction counsel must perf orm specif

ic duties in his or her repr esentation as provided by Rule 651(c)

. People v . Gree r , 212 I ll. 2d 192, 204-05 (2004). This rule require s that counsel m eet with defe ndant to asce rtain contentions of err or and amend, if nece ssary , the pro se petition so as to adequately prese nt those issues. T hough these require ments do not obliga te counsel to advanc e frivolous or spurious claims ( id. at 205), a defe ndant is entitled to a “ ‘ rea sonable’ ” level of a ssistance of postconviction counsel ( Perkins
, 229 I ll. 2d at 42 (quoting Pendleton
, 223 I ll. 2d at 472)). ¶ 21 Def

endant’ s argument that postconvicti o n co un s el failed to provide a rea sonable leve l of assistance is unavailing

. Def endant primarily

relies on People v . W

aldrop , 353 I ll. App. 3d 244 (2004). In W

a ld r o p , the defe ndant asser

ted that his postconviction counsel was

unrea sonab l e fo r faili ng to contac t an eyewitness. Id. at 250. In his pro se petition, the defe ndant attached a repor t from a po l i ce depar

tment indicating that an officer spoke wit h

a witness but the witness, despite witnessing the crime, did not want to g et involved. Id. The alleg ation wa s rea lleg ed nearly verbatim in the defe ndant’s amende d petition, but postconviction counsel did not attach a s upporting aff idavit explaining the s i gn i fi canc e of the witness’s testimony or why th e s up p o rt ing documentation was absent. Id. During
argument o n t h e S t at e’s motion to dismiss
, postconviction counsel stated that he did not think evidentiar

y support was nece ssary for the defe ndant’s alleg ation and contende d that the defe ndant’s verific ation was sufficie nt evidentiar y support to make a substantial showing of

a constitutional violation. Id. The revie wing court noted that, when ruling on a motion to dismiss a petiti on not supported by an affidavit, a tri al co u rt m ay rea sonably presume that postconviction counsel made a conce rted eff ort to obtain aff

idavits in support of the claims despite beingunable to do so. The r eviewingcourt fur ther stated: “[I ]n this case , that presumption is flatly contra dicted by t h e re co rd. Postconviction

counse l m i s t ak enly believed that he did not have a duty to seek an aff idavit from the witness specific ally

identified in [the] defe ndant’s pro sepetition.” Id.
As a result, the revie wing court conclude d that postconviction counsel’s repr esenta tion fell below a rea so n ab l e level of assistance
, in violation of Rule 651(c)

. Id. at 250-51. The revie wing court conclude d that, “[a]t a minimum
, [post conviction] counsel was obligated to obtain evidentiar

y support for c laims raised in the pro sepetition.” Id. at 251. ¶ 22 We f

ind W aldrop distinguishable from the c urre nt matter and, the ref ore, unpersua sive. In W aldrop
, the presumpti on that counsel made a conce rted eff ort to obtain aff

idavits and other s up p o rting documentation was clea rly and unequivoca lly ref uted by postconviction counsel’s repr esentation to the trial court that he did not believe evidentiar y support was

-6-nece ssary

. Id. at 250. Conversely
, the rec ord here is not so clear, an d t h er efore the

presumption t h at defe ndant’s postconviction counsel made a conce rted eff ort to obtain aff idavits in support of the claims is not rebutted. See id. ¶ 23 Specifica lly
, defe ndant’s amende d postconviction petition raised the issues of the lapse of time betwee n the alleg ed offe nse occur ring and the State bring ing charg es, the prosec uting attorney being nomina t ed for a judge ship, alleg ed leg al misrepre sentations by the
prosec ution, and the denial of the eff ective assistance of counse l

. I n support of these alleg ations, defe ndant submitt ed sup p o rting documentation. Wit h respe ct to defe ndant’s
argument that he was denied the eff ective assistance of counsel beca use he did not have

acc ess to discovery documents, defe ndant’s documentation in support of his pro se petition clea rly sets forth that trial counsel filed a motion for defe ndant to have acc ess to discovery
, but the trial co urt denied that motion. There fore
, defe ndant’s claim of being denied the eff ective a ssistance of c ounsel was based on the actions of the trial court, not trial counsel. Si m i l ar ly
, defe ndant does not identify the additi onal evidence that neede d to be subm itted with the amende d petition to support his alleg ation that the prosecutor had a conflict of in tere st resulting from his candida cy for a judge ship. Finally
, defe ndant repr esents in his b rie f befor e this court that postconviction counse l f ailed to a dequate ly

shape his pro seclaim of a violation pursuant to Brady v. M aryland, 373 U.S. 83, 87 (1963). Howeve r, beca use that claim lacke d merit, counsel pr operly did not realleg e it in his amended pe tition. ¶ 24 In short, unlike in W aldrop
, the rec ord is devoid of a “flat contra diction” that overc omes the presumption that postconviction counsel made a conce rted eff ort to obtain supporting documents. As a result, we reje ct defe ndant’s contention that he was denied the rea sonable assistance of postconviction counse l. ¶ 25 L ast, defe ndant argues that his postconviction counsel failed to adequately repr esent him under Rule 651(c) beca

use h e fa i l ed to provide a properly notarized aff idavit, and his inclusion of a cer

tification under section 1-109 of the Code of Civil Procedur e (see 735 I L CS 5/1-109 (West 2008)) did not cure th at failure

. Def endant asks that we rema nd for appointment of new counsel, which is what the revie wing court did i n N i t z

. Fo r the same

rea sons, the State asks that we a ffirm the dismissal. ¶ 26 Insofar as we have alre ady upheld the trial court’s second- stag e dismiss al of defe ndant’s postconviction petition on the merits, we need not seek out an alternative, proce dural defe ct

on which to substantively decide the appea l. See People v. Johnson
, 208 I ll. 2d 118, 129 (2003) (st at ing that a revie wing court may aff irm a trial court’s judgme nt on any g round
appea ring in the rec ord). Moreove r, our supreme court would pref er that we do n o t

. See Petrenk o , 237 I ll. 2d at 505 (noting that courts need not c onsider issues whe re the y are not essential to the dispositi on of the cause or wher e the result will not be aff ecte d reg ardle ss of how the issues ar e dec ided). ¶ 27 We rec og nize People v. Carr
, 407 I ll. App. 3d 315 (2011), as it is a published decision from this c ourt (this a

uthor and J ustice McL are n here concur ring ); howeve r, Carr does not explain why it chose to addre ss and resolve the appea l based on a proce dural defe ct that was not addre ssed by the lower court prior to appellate revie w. See People v. Sparks
, 393 I ll. App. 3d 878, 883 (2009) (stating that, at the dismiss al stag e of a postconviction proce eding
,

-7-the trial court is conce rned m er el y wi th deter mining whether the petition’s alleg ations sufficie ntly demonstrate a constitutional infirmity that would nece ssitate re l i ef under the Act). W e al s o rec og nize Nitz as it is a published decision from this court; howeve r, we believe in the instant case that the notarization and cer tification issues are not justiciable and need not be addre ssed in this appea l. Once the State moved to dismiss on the merits and did

n ot challeng e the alleg ed proce dural defe cts, and once the trial court conducte d a hearing, during which neither party raised the alleg ed proce dura l d efe cts, and prese nted its ruling based on the merits, the purporte d notarization and ce rtification issues bec ame moot. ¶ 28 Fur

thermore
, we believe that our resolution of the curr ent matter is more consistent with the spirit a

nd purpose of the Act. See People v. Taylor
, 237 I ll. 2d 356, 372 (2010) (stating that the purpose of a postconviction proce eding is to permit inquiry into constitutional issues involved in the orig inal trial that have not b ee n , an d co uld not have been, adjudicate d previously upon direc t review ). Our me thod of resolution also comports with our supreme court’s long- held view that the Act i n g ener al must be “ ‘libera lly construed to aff ord a convicted person an opportunity to presen t qu es tions of deprivation of constitutional rights.’ ” People v . Rissley , 206 I ll. 2d 403, 421 (2003) (quoting People v. Correa
, 108 I ll. 2d 541, 546 (1985)) . And finally
, under the auspice s of fairne ss, w e believe that revie wing and addre ssing the merits of a postconviction petition provide a more just result to a person under a criminal sentenc e. See People v. Boclair
, 202 I ll. 2d 89, 101-02 (2002) (noting that, if a postconviction petition is untimely filed b u t h as obvious substantive merit, i.e.
, if it clea rly demonstrates that a prisoner suffe red a deprivation of constitutional magnitude, a dutiful prosec utor should waive the proce dural defe ct). For all of these rea sons, w e decline to apply the holdings of Carr

and Nitzto the circ umstances of the pre sent ca se. ¶ 29 Acc ording ly , we a ffirm the judgment of the c ircuit court of McHe nry

County

.

¶ 30 Affir

med.

-8-