People v. Waldrop

Case Date: 11/10/2004
Court: 2nd District Appellate
Docket No: 2-03-0548 Rel

 

No. 2--03--0548


 
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
  

THE PEOPLE OF THE STATE
OF ILLINOIS,

          Plaintiff-Appellee,

v.

ANDREW A. WALDROP,

          Defendant-Appellant.

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Appeal from the Circuit Court
of Kane County.



No. 94--CF--1492

Honorable
James T. Doyle,
Judge, Presiding.


 

JUSTICE BYRNE delivered the opinion of the court:

Following a jury trial, defendant, Andrew A. Waldrop, was convicted of first-degree murder(720 ILCS 5/9--1(a)(2) (West 1994)) and sentenced to 60 years' imprisonment. On direct appeal,we affirmed his conviction and sentence. People v. Waldrop, No. 2--97--1119 (1999) (unpublishedorder under Supreme Court Rule 23). He appeals the dismissal of his postconviction petition, arguingthat his postconviction counsel did not comply with Supreme Court Rule 651(c) (134 Ill. 2d R.651(c)). We reverse and remand the cause.

Following his unsuccessful appeal, defendant filed a postconviction petition allegingineffective assistance of counsel, abuse of judicial authority, and prosecutorial misconduct. Defendantlater filed two amended postconviction petitions, in which he additionally alleged that he wasunlawfully convicted under an accountability theory and that his sentence was an abuse of discretion. The trial court appointed conflict counsel to represent him.

Counsel requested the records of the earlier proceedings, and the court ordered the circuitcourt clerk to provide counsel with the records. Counsel subsequently filed an amendedpostconviction petition and a certificate pursuant to Rule 651(c).

The State moved to dismiss the amended petition (see 725 ILCS 5/122--5 (West 2002)). TheState argued that defendant's claims were without merit and were barred under res judicata andwaiver. Counsel then filed another amended petition, which included additional case law. Afterarguments, the trial court dismissed the amended petition, defendant filed a notice of appeal, and thecourt appointed the Office of the State Appellate Defender as counsel.

Defendant now argues that the certificate filed by his postconviction counsel did not complywith Rule 651(c). The attorney certified that he read all the records of proceedings; that he read theentire common-law record; that, in the amended petition, he raised issues that had not previously beenasserted; that he interviewed defendant's trial counsel; and that he attached the necessary affidavits. The rule, however, requires that the record show that the attorney "has consulted with petitionereither by mail or in person to ascertain his [or her] contentions of deprivation of constitutional rights." 134 Ill. 2d R. 651(c). Accordingly, defendant argues that the attorney did not comply with Rule651(c) and that the dismissal of his postconviction petition should be reversed.

To ensure that the complaints of a prisoner are adequately presented, the Post-ConvictionHearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2002)) contemplates that the attorneyappointed to represent an indigent petitioner will ascertain the basis of the petitioner's complaints,shape those complaints into the appropriate legal form, and present the petitioner's constitutionalcontentions to the court. People v. Richmond, 188 Ill. 2d 376, 381 (1999). Consequently, Rule651(c), which governs appeals from postconviction proceedings, provides in relevant part:

"The record filed in [the appellate] court shall contain a showing, which may be made by thecertificate of petitioner's attorney, that the attorney has consulted with petitioner either bymail or in person to ascertain his contentions of deprivation of constitutional rights, hasexamined the record of the proceedings at the trial, and has made any amendments to thepetitions filed pro se that are necessary for an adequate presentation of petitioner'scontentions." 134 Ill. 2d R. 651(c).

Along with its appellate brief, the State moved to supplement the record with an additionalcertificate prepared by postconviction counsel. In the supplemental certificate, postconvictioncounsel stated in part: "[I]n the course of representing defendant, ANDREW WALDROP, in thepresentation of his post conviction proceedings ***, I consulted with the defendant by mail, toascertain his contentions of a deprivation of constitutional right." Defendant objects to the State'smotion to supplement the record, and we ordered the motion taken with the case.

Under Supreme Court Rule 329 (134 Ill. 2d R. 329), this court may permit an amendment tothe record on appeal where there are material omissions or inaccuracies or if the record is otherwiseinsufficient to present fully and fairly the questions involved. People v. Miller, 190 Ill. App. 3d 981,988 (1989). However, the amendment should not be allowed if the amendment is used to impeachor contradict the contents of the record. Miller, 190 Ill. App. 3d at 989. The interpretation of asupreme court rule is a question of law. Benson v. Abbott, 326 Ill. App. 3d 599, 600 (2001).

Beginning in People v. Harris, 50 Ill. 2d 31, 34 (1971), reviewing courts have permitted theState to supplement the record on appeal with a Rule 651(c) certificate. In Harris, the supreme courtheld that, where the record did not contain a Rule 651(c) certificate and where the judgmentotherwise should be affirmed, the State should be granted leave to file the appropriate certificate. Harris, 50 Ill. 2d at 34. Numerous cases since Harris have permitted the State to supplement therecord with a Rule 651(c) certificate during the appeal. E.g., People v. Yarbrough, 210 Ill. App. 3d710, 714 (1991); People v. Richmond, 165 Ill. App. 3d 75, 76 (1988); People v. Allen, 151 Ill. App.3d 391, 394 (1986). Nonetheless, this court has denied the State's motion to supplement the recordif the Rule 651(c) certificate that the State sought to file was deemed inadequate. See People v.Alexander, 197 Ill. App. 3d 571, 572 (1990); People v. Gonzales, 15 Ill. App. 3d 265, 267 (1973)(certificate deemed inadequate where postconviction counsel confessed therein that he did not read all of the records of the proceedings).

Acknowledging the procedure outlined in Harris, defendant argues that the facts in the presentcase are distinguishable from those in Harris. He contends that, in Harris and its progeny, the Statewas allowed to supplement the record where no Rule 651(c) certificate was ever filed. However, inthis case, because a certificate was filed with the trial court, defendant asserts that the State's attemptto supplement the record with an additional certificate effectively contradicts the one previously filed. Defendant concludes that, under Rule 329, the State's motion to supplement should be denied as theadditional certificate contradicts the established record.

We disagree with defendant's claim that postconviction counsel's supplemental Rule 651(c)certificate contradicts the first certificate. On the contrary, we conclude that the supplementalcertificate remedies a material omission from the existing record--the fact that postconviction counselconsulted with defendant about his claims that he was deprived of his constitutional rights. Theremaining statements in postconviction counsel's certificate are the same as those in the firstcertificate. Accordingly, under Rule 329, the State may amend the appellate record to correct thematerial omission.

Furthermore, we note that, in People v. Wollenberg, 9 Ill. App. 3d 1028, 1030 (1973), theappellate court allowed the State to amend the record with a Rule 651(c) certificate where thatcertificate contradicted the defendant's argument that his postconviction counsel was ineffective. InWollenberg, the defendant argued that the dismissal of his postconviction petition should be vacatedbecause his postconviction counsel never consulted or contacted him. Wollenberg, 9 Ill. App. 3d at1029-30. This court permitted postconviction counsel to file a Rule 651(c) certificate during theappeal. Wollenberg, 9 Ill. App. 3d at 1030. Concluding that postconviction counsel substantiallycomplied with Rule 651(c), the appellate court observed that, in the certificate, postconvictioncounsel clearly refuted the defendant's suggestion that his postconviction counsel never consultedwith him. Wollenberg, 9 Ill. App. 3d at 1030-31.

As a result, we grant the State's motion to supplement the appellate record with the amended Rule 651(c) certificate. The filing of such certificates during appeals is in accordance with theprocedure suggested by the supreme court in Harris. Moreover, such certificates facilitate judicialeconomy for reviewing courts in disposing of their cases. People v. Rexroat, 52 Ill. App. 3d 364, 367(1977).

Turning to the merits, the State argues that, considering the supplemental certificate,postconviction counsel complied with Rule 651(c). To the contrary, defendant argues thatpostconviction counsel did not adequately represent him under Rule 651(c) because counsel did notamend the pro se postconviction petition in the manner necessary to adequately present defendant'sclaims. More specifically, in his pro se petition, defendant alleged that his trial counsel was ineffectivein failing to contact an eyewitness who may have had exculpatory information and to presentmitigating evidence about defendant's mental health at the sentencing hearing. Postconviction counselincluded these arguments in the amended petitions but did not attach affidavits or other supportingevidence. Consequently, defendant claims that postconviction counsel did nothing to shape his claimsof constitutional deprivation into the appropriate legal form as required by Rule 651(c). We reviewde novo the dismissal of a postconviction petition without an evidentiary hearing. People v. Williams,186 Ill. 2d 55, 59-60 (1999).

A defendant has no constitutional right to the assistance of counsel in a postconvictionproceeding. Williams, 186 Ill. 2d at 60. Because the right to counsel in postconviction proceedingsis wholly statutory, postconviction petitioners are entitled only to the level of assistance provided bythe Act. Williams, 186 Ill. 2d at 60. Under Rule 651(c), postconviction counsel must provide a" 'reasonable level of assistance' " to a petitioner in the postconviction proceeding. (Emphasisomitted.) Williams, 186 Ill. 2d at 60, quoting People v. Owens, 139 Ill. 2d 351, 364 (1990).

Defendant argues that he did not receive a reasonable level of assistance from postconvictioncounsel because counsel misunderstood the law concerning when affidavits are necessary to supporta postconviction claim. In the State's motion to dismiss, it contended that defendant's allegations ofineffective assistance of trial counsel should be dismissed because defendant did not attach affidavitsor other evidentiary support to the postconviction petition. Responding to the State's argument atthe hearing, postconviction counsel disagreed that affidavits were necessary. Counsel stated:

"It's not mandatory that there be an affidavit unless you are basically alleging an alibidefense that somebody did not call, and this is what these witnesses would say and thosewitnesses sign off on it.

When my client filed the postconviction petition, he filed it as being truthful."

Later in the hearing, counsel again asserted that affidavits are essential to a postconviction petitiononly if the petition alleges that trial counsel failed to present an alibi witness. Counsel was incorrect.

Under the Act, the defendant bears the burden of establishing that a substantial deprivationof his constitutional rights occurred at his original trial. People v. Johnson, 154 Ill. 2d 227, 239(1993). An evidentiary hearing will be held only where the allegations of the postconviction petitionmake a substantial showing that the defendant's constitutional rights have been violated and thepetition is supported by affidavits, records, or other evidence or explains why these items are notattached. People v. Treadway, 245 Ill. App. 3d 1023, 1025 (1993). The affidavits that accompanya postconviction petition must identify with reasonable certainty the sources, character, andavailability of alleged evidence supporting the petitioner's allegations. Treadway, 245 Ill. App. 3dat 1025. A postconviction petition that is not supported by affidavits or other supporting documentsis generally dismissed without an evidentiary hearing unless the petitioner's allegations standuncontradicted and are clearly supported by the record. Treadway, 245 Ill. App. 3d at 1025. Thus,contrary to postconviction counsel's belief, the requirement that an affidavit or other supportingdocument be attached to a postconviction petition does not depend on the issue that the claim ofconstitutional deprivation raises; on the contrary, all claims may be dismissed without an evidentiaryhearing unless they are sufficiently supported.

In Johnson, the supreme court held that postconviction counsel failed to provide a reasonablelevel of assistance where the record indicated that counsel did not attempt to contact witnessesspecifically identified by name in the postconviction petition as offering support for a constitutionalclaim made in the petition. The Johnson court determined that, because postconviction counsel didnot take any action to obtain the affidavits of potential witnesses whose identities were known to him,counsel failed to satisfy the requirement in Rule 651(c) that counsel make any amendments to the prose postconviction petition that are necessary to adequately present the petitioner's contentions. Johnson, 154 Ill. 2d at 243.

Here, in defendant's pro se postconviction petition, he stated that his trial counsel wasineffective for failing to contact an eyewitness, Jose Vasquez, who informed the police that he didnot want to get involved or talk to them. For support, defendant attached a report from the Aurorapolice department, indicating that an officer spoke to Vasquez and Vasquez affirmed that he saw thecrime but did not want to get involved or talk to the police. This contention was realleged almostverbatim in the amended postconviction petition drafted by postconviction counsel, but it was notsupported by an affidavit explaining the significance of Vasquez's testimony or why such supportingdocumentation was absent. During arguments on the State's motion to dismiss, postconvictioncounsel argued that he did not think any evidentiary support was necessary to support defendant'sclaim. Counsel contended that defendant's verification alone was sufficient evidentiary support tomake a substantial showing that defendant's constitutional rights were violated. Again, thatcontention was wrong.

"In the ordinary case, a trial court ruling upon a motion to dismiss a post-conviction petitionwhich is not supported by affidavits or other documents may reasonably presume that post-convictioncounsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but wasunable to do so." Johnson, 154 Ill. 2d at 241. However, in this case, that presumption is flatlycontradicted by the record. Postconviction counsel mistakenly believed that he did not have a dutyto seek an affidavit from the witness specifically identified in defendant's pro se petition. Therefore,we must conclude that postconviction counsel's representation fell below a reasonable level ofassistance and that counsel did not adequately comply with Rule 651(c).

Under Rule 651(c), postconviction counsel had an obligation to present defendant'spostconviction claims to the court in the appropriate legal form. At a minimum, counsel wasobligated to attempt to obtain evidentiary support for claims raised in the pro se petition. Withoutaffidavits or other supporting evidence, the trial court had no choice but to dismiss the petitionwithout an evidentiary hearing. We conclude that this cause should be remanded to the trial courtso that postconviction counsel may comply with Rule 651(c).

For the above reasons, the judgment of the circuit court of Kane County is reversed, and thecause is remanded for further proceedings.

Reversed and remanded.

KAPALA and GILLERAN JOHNSON, JJ., concur.