Opinion
5-19-0334
12-15-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN K. BOWLBY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Saline County. No. 11-CF-22 Honorable Todd D. Lambert, Judge, presiding.
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.
ORDER
BOIE PRESIDING JUSTICE
¶ 1 Held: We reverse the judgment of the trial court dismissing the defendant's amended postconviction petition where postconviction counsel rendered unreasonable assistance of counsel by failing to provide support, or explain the absence thereof, for the defendant's postconviction claim of ineffective assistance of trial counsel for failing to properly disclose a conflict of interest.
¶ 2 On February 2, 2012, the defendant, Brian K. Bowlby, was convicted of 18 counts of predatory criminal sexual assault of a child and 1 count of aggravated criminal sexual abuse. The defendant appealed his conviction and this court affirmed. People v. Bowlby, 2015 IL App (5th) 120520-U. On May 12, 2015, the defendant filed a, pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2014)). The trial court appointed counsel to represent the defendant and postconviction counsel filed an amended petition for postconviction relief on October 31, 2016. The State filed an amended motion to dismiss the defendant's amended petition for postconviction relief on February 10, 2017, and on February 23, 2018, the trial court conducted a hearing on the State's amended motion to dismiss. On July 23, 2019, the trial court issued a written order granting the State's amended motion and dismissing the defendant's amended petition for postconviction relief.
¶ 3 The defendant now appeals the trial court's judgment dismissing his amended petition for postconviction relief arguing on appeal that his postconviction counsel provided an unreasonable level of assistance by failing to attach affidavits or evidentiary support or explaining the absence of the evidentiary support for the defendant's claims that (1) his trial counsel was ineffective for operating under a conflict of interest and (2) his trial counsel was ineffective for failing to subpoena witnesses for a pretrial motion to suppress and failing to litigate the motion to suppress. For the following reasons, we reverse the judgment of the trial court and remand for the appointment of new postconviction counsel and further proceedings consistent with this order.
¶ 4 BACKGROUND
¶ 5 On February 2, 2012, the defendant was convicted of 18 counts of predatory criminal sexual assault of a child in violation of section 12-14.1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14.1(a)(1) (West 2000) (now codified at 720 ILCS 5/11-1.40(a)(1) (West 2020))) and 1 count of aggravated criminal sexual abuse in violation of section 12-16(c)(1)(i) of the Code (720 ILCS 5/12-16(c)(1)(i) (West 2002) (now codified at 720 ILCS 5/11-1.60 (West 2020))). The defendant appealed his conviction and this court affirmed. People v. Bowlby, 2015 IL App (5th) 120520-U.
The background on the defendant's conviction and sentencing is fully set forth in People v. Bowlby, 2015 IL App (5th) 120520-U, ¶¶ 4-40 and is not necessary for our analysis in this appeal. Therefore, we are limiting our recitation of the facts to only those that are generally pertinent to the issue raised on appeal.
¶ 6 On May 12, 2015, the defendant filed a pro se petition for postconviction relief (pro se petition) pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2014)). In his pro se petition, the defendant alleged, inter alia, that his trial counsel operated under a conflict of interest at trial because he failed to disclose that in 2002 he was the assistant state's attorney who had represented the State in the Department of Children and Family Services (DCFS) cases involving the defendant's minor children, including the victim. The defendant further alleged that his trial counsel failed to call witnesses due to the conflict. Attached as exhibits to the defendant's pro se petition in support of this claim were portions of the DCFS file involving the defendant's minor children.
The defendant's pro se and amended petitions contained numerous claims which are not at issue in this appeal. Again, this court will limit the recitation of facts to the two claims in the amended petition at issue in this appeal.
Case Nos. 02-JA-25, 02-JA-26, 02-JA-27, and 02-JA-28, filed in the First Judicial Circuit, Saline County, Illinois.
¶ 7 On June 4, 2015, the trial court entered a written order finding that the defendant's pro se petition was not frivolous or patently without merit and appointed counsel to represent the defendant in the postconviction proceedings. On August 26, 2015, the State filed a motion to dismiss the defendant's pro se petition, and on October 31, 2016, postconviction counsel filed an amended petition for postconviction relief (amended petition) on behalf of the defendant.
¶ 8 The amended petition incorporated the defendant's pro se petition, including the conflict of interest claim, and further added a claim that the defendant's trial counsel was ineffective for failing to properly litigate a pretrial motion to suppress. Although defendant's trial counsel filed a pretrial motion to suppress the defendant's statements to law enforcement, the defendant's amended petition alleged that the defendant's trial counsel failed to subpoena critical witnesses for the hearing on said motion and later withdrew the motion and failed to challenge the use of the statements against the defendant at trial. Attached as exhibit D to the amended petition in support of this claim was a portion of the trial court's posttrial motion hearing transcript conducted on January 20, 2012. On October 20, 2017, postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶ 9 On February 10, 2017, the State filed an amended motion to dismiss the defendant's amended petition (amended motion). The State argued in its amended motion that the defendant had forfeited his ineffective assistance of trial counsel claims, including his conflict of interest and his claim regarding the pretrial motion to suppress, alleging that both claims were known to the defendant prior to his direct appeal and that the defendant failed to raise either issue on appeal. The State further argued in its amended motion that defendant's conflict of interest claim was without merit as it was unsupported by affidavit or other evidence. The State's amended motion noted that the DCFS records attached as exhibits did not mention defendant's trial counsel and further argued that even if trial counsel had been involved with the DCFS cases, defendant failed to show any conflict of interest on the part of trial counsel in representing the defendant in a criminal case 10 years later such that it would rise to the level of a substantial constitutional violation.
¶ 10 The trial court conducted a hearing on the State's amended motion to dismiss on February 23, 2018, and on July 23, 2019, the trial court entered a written order dismissing the defendant's amended petition. In its written order, the trial court found that the defendant had forfeited his claims relating to ineffective assistance of trial counsel because:
The trial court issued a nine-page written order addressing all issues raised in the defendant's postconviction petitions; however, this court will again limit the recitation of facts to the two claims in the amended petition at issue in this appeal.
"Clearly, Defendant was aware of his claims of ineffectiveness at the time of his direct appeal and he did not include those in his appeal. Consequently, his claims concerning his trial counsel are forfeited."
¶ 11 The trial court's written order went on to indicate that the trial court had found that none of the per se conflicts existed with the defendant's trial counsel's representation of the defendant because trial counsel had represented the State in unrelated juvenile cases and had not represented the State in any criminal matter against the defendant. The trial court further noted that there was no evidence presented which indicated that the defendant's trial counsel had ever represented the victim or a witness in the defendant's criminal trial. As such, the trial court noted that in order to succeed in proving a conflict of interest, the defendant was required to prove some specific defect in his trial counsel's strategy, tactics, or decision making due to the conflict. The trial court's written order stated that the defendant had not presented any evidence or argument that the alleged conflict affected his trial counsel's strategy, tactics, or decision making.
¶ 12 Concerning the defendant's claim of ineffective assistance of trial counsel for failing to litigate the pretrial motion to suppress, the trial court's written order stated as follows:
"Next, Defendant complains his trial counsel failed to present his Motion To Suppress for hearing. Defendant filed a Motion To Suppress, seeking to keep the State from introducing into evidence his pre-arrest statements to [law enforcement]. The Motion was called for hearing on January 20, 2012, but trial counsel was not ready for the hearing on that date. Counsel did not later pursue the motion. The statements made by Defendant to [law enforcement] were made after he had received his Miranda warnings. Simply claiming ineffectiveness because a Motion to Suppress was not pursued does not make it so. Defendant must provide some evidence for the Court to determine that failing to pursue the motion substantially prejudiced the Defendant. No such evidence has been provided by Defendant."
Based upon the above findings, along with the trial court's findings on the defendant's other issues, the trial court granted the State's amended motion and dismissed the defendant's amended petition.
¶ 13 The defendant now appeals from the judgment of the trial court dismissing his amended petition, raising the single issue of unreasonable assistance of postconviction counsel for failing to attach affidavits or evidentiary support or explain their absence for the defendant's claim that his trial counsel was ineffective for operating under a conflict of interest, and for failing to subpoena witnesses for a motion to suppress statements and failing to litigate the motion to suppress. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings consistent with this order.
¶ 14 ANALYSIS
¶ 15 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his or her original trial or sentencing hearing. People v. Pitsonbarger, 205 Ill.2d 444, 455 (2002). A postconviction proceeding is not an appeal from an underlying judgment, but rather a collateral attack on the judgment. People v. Ortiz, 235 Ill.2d 319, 328 (2009). As a collateral proceeding, a postconviction proceeding allows inquiry only into constitutional issues that were not and could not have been adjudicated in an appeal of the underlying judgment. Id.
¶ 16 The Act sets forth a three-stage process for postconviction proceedings. People v. Little, 2012 IL App (5th) 100547, ¶ 12. At the first stage, the trial court independently assesses a defendant's petition and may summarily dismiss the petition if the trial court determines that it is frivolous or patently without merit. Id. If not dismissed at the first stage, the petition advances to the second stage where counsel may be appointed, and the State may move to dismiss the petition. Id. At the second stage, the trial court must determine whether the petition contains sufficient allegations of a constitutional violation, and if a substantial showing is made, the petition proceeds to the third stage for an evidentiary hearing. Id.
¶ 17 The trial court's inquiry into whether a petition contains sufficient allegations of a constitutional deprivation at the second stage does not require the trial court to engage in any fact-finding or credibility determinations since the Act contemplates that such determinations will be made at the evidentiary stage. People v. Dupree, 2018 IL 122307, ¶ 29. As such, any allegations not affirmatively refuted by the record must be taken as true at the second stage. People v. Hall, 217 Ill.2d 324, 334 (2005).
¶ 18 In this matter, the trial court independently assessed the defendant's pro se petition and determined that it was not frivolous or patently without merit, and the defendant's pro se petition proceeded to the second stage. Postconviction counsel was appointed to represent the defendant and postconviction counsel filed an amended petition on behalf of the defendant. The defendant's amended petition was then dismissed at the second stage and no evidentiary hearing was conducted. The standard of review upon the dismissal of a postconviction petition at the second stage is de novo. People v. Johnson, 206 Ill.2d 348, 357 (2002).
¶ 19 The defendant's sole issue on appeal involves the level of assistance rendered by his postconviction counsel. The right to counsel in postconviction proceedings is derived from statute rather than the Constitution. People v. Owens, 139 Ill.2d 351, 364 (1990). Thus, postconviction petitioners are guaranteed only the level of assistance which the statute provides. Id. That level of assistance has been defined by the Illinois Supreme Court to mean a "reasonable" level of assistance. People v. Flores, 153 Ill.2d 264, 276 (1992). One aspect of "reasonable" assistance is compliance with Illinois Supreme Court Rules 651(c). People v. Carter, 223 Ill.App.3d 957, 961 (1992). An attorney's compliance with Rule 651(c) is also reviewed de novo. People v. Profit, 2012 IL App (1st) 101307, ¶ 17. ¶ 20 There are two ways in which appointed counsel may comply with Rule 651(c): (1) counsel may file a certificate to show that the requirements of the rule were complied with or (2) the record as a whole may demonstrate that counsel complied with those provisions. People v. Richmond, 188 Ill.2d 376, 380 (1999). A rebuttable presumption that postconviction counsel provided reasonable assistance exists where the Rule 651(c) certificate has been filed. Profit, 2012 IL App (1st) 101307, ¶ 19. The defendant bears the burden to overcome this presumption by demonstrating that his counsel failed to substantially comply with the requirements of Rule 651(c). Id.
¶ 21 In this matter, the defendant's postconviction counsel filed the requisite certificate of compliance which stated that he had fulfilled his obligations under Rule 651(c). Thus, there is a rebuttable presumption that the defendant's postconviction counsel provided reasonable assistance of counsel, and it is the defendant's burden to overcome this presumption. In that regard, the defendant argues that his postconviction counsel rendered unreasonable assistance of counsel by failing to attach affidavits or evidentiary support or explaining the absence of the evidentiary support for the defendant's claims that his trial counsel was ineffective for (1) operating under a conflict of interest and (2) failing to subpoena witnesses for a motion to suppress statements and failing to litigate the motion to suppress.
¶ 22 The defendant alleged in his pro se and amended petitions that his trial counsel operated under a conflict of interest at trial by failing to properly disclose that in 2002 trial counsel was the assistant state's attorney who had represented the State in the DCFS cases involving the defendant's minor children, including the victim. The defendant argues that, at a minimum, postconviction counsel should have attached an affidavit of the defendant to establish the circumstances surrounding the disclosure or lack thereof, when and how the defendant became aware of the conflict, and what, if any, conversations the defendant had with trial counsel concerning the conflict. We agree.
¶ 23 Rule 651(c) requires that the record on appeal demonstrates that postconviction counsel made any amendments to the pro se petition that were "necessary for an adequate presentation of petitioner's contentions." Ill. S.Ct. R. 651(c) (eff. July 1, 2017); People v. Turner, 187 Ill.2d 406, 412 (1999). Section 122-2 of the Act mandates that postconviction petitions "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2016). A postconviction petition is generally dismissed without an evidentiary hearing if it is not supported by affidavits or other supporting documents unless the petitioner's allegations are uncontradicted and clearly supported by the record. People v. Johnson, 154 Ill.2d 227, 240 (1993). As such, to adequately present a petitioner's contentions based on a matter outside the record, postconviction counsel must attach an affidavit, record, or other evidence supporting the petitioner's allegations or state why the same are not attached. See Turner, 187 Ill.2d at 414; Johnson, 154 Ill.2d at 243.
¶ 24 Attached as exhibits to the defendant's pro se petition were copies of pages from the DCFS file including child endangerment risk assessments and safety determination forms. These documents, however, do not mention the defendant's trial counsel in any manner nor did any of the exhibits attached to the defendant's pro se petition. The defendant's amended petition did not include any additional documents in support of this allegation, nor did it state why the same were not attached. At the trial court's hearing on the State's amended motion, postconviction counsel did not admit any additional evidence or make any argument regarding the defendant's conflict of interest claim. Because defendant's claim related to a conflict of interest concerning his trial counsel was not supported by affidavits, records, or other evidence, nor was it clearly supported by the record, the trial court dismissed the defendant's claim without an evidentiary hearing.
¶ 25 Our de novo review of this matter also finds that the defendant's ineffective assistance of trial counsel claim regarding a conflict of interest was not clearly supported by the record. As such, in order to adequately present the defendant's contentions as required by Rule 651(c), postconviction counsel should have attached supporting documents as required by section 122-2 of the Act (725 ILCS 5/122-2 (West 2016)).
¶ 26 We do not find, within the record on appeal, any indication other than the defendant's claim, to indicate whether or not the defendant's trial counsel even represented the State in the DCFS matters. We agree with the defendant that postconviction counsel should have, at a minimum, attached an affidavit of the defendant setting forth the circumstances of when and how the defendant became aware of the potential conflict and what, if any, conversations the defendant had with his trial counsel concerning the potential conflict. Postconviction counsel could have also attached any filing executed by defendant's trial counsel in the DCFS cases to the petition to support the defendant's claim of a conflict of interest. If postconviction counsel could not obtain an affidavit or other supporting documents, postconviction counsel should have stated the reason why the same were not attached, which would have met the requirements of section 122-2 of Act (id).
¶ 27 Therefore, we find that postconviction counsel failed to make any amendments to the pro se petition that were necessary for an adequate presentation of petitioner's contentions as required by Rule 651(c) by failing to attach affidavits, records, or other evidence supporting the defendant's allegations regarding a conflict of interest on behalf of his trial counsel or stating why the same were not attached as required by section 122-2 of the Act (id.).
¶ 28 Finally, we need to address the trial court's determination, and the State's argument on appeal, that the defendant forfeited his conflict of interest issue for failing to bring the issue on direct appeal. The defendant's claim of ineffective assistance of counsel regarding the conflict of interest is based upon information not contained in the trial record. If a postconviction claim depends on matters outside of the record, waiver generally does not bar an ineffective assistance claim because matters outside the record may not be raised on direct appeal. People v. Jones, 364 Ill.App.3d 1, 5 (2005). Further, as discussed above, postconviction counsel failed to attach any documents to the defendant's petition to demonstrate the circumstances of when and how the defendant became aware of the conflict of interest. Without some evidence of when and how the defendant became aware of the conflict of interest, a finding of forfeiture is speculative since the mere fact that the defendant reviewed the DCFS file prior to trial and/or was a respondent does not, in-of-itself, demonstrate that the defendant had any knowledge of his trial counsel's role in the DCFS matters prior to his direct appeal sufficient to invoke forfeiture.
¶ 29 A reviewing court cannot speculate on whether the trial court would have dismissed the petition without an evidentiary hearing if postconviction counsel had adequately performed his duties under Rule 651(c). Turner, 187 Ill.2d at 416; Johnson, 154 Ill.2d at 246. The Illinois Supreme Court has consistently held that remand is required where postconviction counsel has failed to comply with Rule 651(c), regardless of whether the claims raised in the petition had merit. People v. Suarez, 224 Ill.2d 37, 47 (2007). As such, we are required to remand this matter for the appointment of new counsel for second stage proceedings, and we make no findings regarding the merits of any of the defendant's allegations and/or claims. Because we have determined that remand is required on the defendant's claim of unreasonable assistance of postconviction counsel for failing to attach support for the defendant's claim of ineffective assistance of counsel based on a conflict of interest, we will not address the defendant's remaining issue of unreasonable assistance of postconviction counsel for failing to attach supporting documents regarding the motion to suppress issue as the defendant's new postconviction counsel should fully comply with all aspects of Rule 651(c) including any necessary amendment to the defendant's pro se petition required for the adequate presentation of petitioner's contentions to the trial court.
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, we reverse the trial court's order dismissing the defendant's amended postconviction petition and remand for the appointment of new postconviction counsel and further proceedings consistent with this order.
¶ 32 Reversed and remanded.