Opinion
2-21-0284
09-16-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DECARLO HARRIS, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County. No. 06-CF-1422 Honorable David P. Kliment, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court. Presiding Justice Brennan and Justice McLaren concurred in the judgment.
ORDER
BIRKETT JUSTICE.
¶ 1 Held: The second-stage dismissal of defendant's amended postconviction petition is reversed where appointed counsel provided unreasonable assistance by failing to seek an affidavit from a witness who was allegedly coerced by the State to testify falsely against defendant at trial and who wished to recant his testimony.
¶ 2 Defendant, DeCarlo Harris, appeals the order of the circuit court of Kane County dismissing his amended postconviction petition under the Post-Conviction Hearing Act (Act) (720 ILCS 5/122-1 et seq. (West 2020)) without an evidentiary hearing. He contends that his appointed counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff July 1, 2017) and rendered unreasonable assistance by failing to attach to his postconviction petition an affidavit necessary to support his claim. We reverse and remand with directions to allow defendant to replead his postconviction petition with the assistance of new counsel.
¶ 3 I. BACKGROUND
¶ 4 We will recount only those facts necessary to resolve the issues on appeal. It is undisputed that, on May 27, 2006, following a scuffle involving several individuals, defendant shot and killed Dwayne Johnson at the Burnham Mill (the Mill) apartment complex in Elgin. Defendant contended that the shooting was in self-defense because Johnson appeared to be reaching for a gun that defendant believed was still loaded.
¶ 5 At trial, L.C. Rankin testified that, at the time of the shooting, he was living with his girlfriend in an apartment located at 1245 Fleetwood Drive (the 1245 building) in the Mill. That night, Rankin was drinking gin with three or four friends, both inside and outside of the Mill, and selling drugs. At one point, he and defendant exchanged hostile words, but he could not recall what was said. Later that evening, Johnson joined the group, and together they drank gin by the staircase behind the 1245 building. After a drug sale, Rankin drank in a hallway within the 1245 building with the group. At that time, he got into a confrontation with "white boy Josh." Rankin slapped Josh, and Josh left.
¶ 6 At approximately 3:00 a.m., Rankin and Johnson exited the building together and went outside. Rankin spoke to a woman who was sitting in a car in the parking lot while Johnson remained near the 1245 building. Defendant then appeared at the front of the building. Rankin approached defendant to "clear the air" about their earlier altercation. Rankin believed that, at that point, they had resolved the conflict between them. Then, however, three men approached and stood beside defendant. Rankin believed that they were defendant's friends. One of the men confronted Rankin about slapping "white boy Josh." That individual became aggressive towards Rankin and began swinging his fists at him. He then hit Rankin with a beer bottle below his eye. Other members of the group also swung at Rankin.
¶ 7 After the altercation, Johnson and Rankin went to the apartment of Johnson's girlfriend, located at 1255 Fleetwood Drive (the 1255 building), and retrieved a gun. It was Johnson's idea to retrieve the gun, but Rankin took it from him and put it in his back pocket "to make sure didn't no shots got fired for no reason." Rankin was concerned that defendant might have had a gun on him. Rankin and Johnson exited the apartment and returned to the scene of the altercation because they "wanted to fight." When they were approximately 20 feet away from the group, Rankin saw defendant reach toward his waistband, which Rankin believed meant that defendant was reaching for a gun. Rankin then fired his gun at defendant three or four times, until it made "a click sound." During the shooting, defendant was running "around the parking lot of the 1245 building."
¶ 8 Rankin then ran toward the back of the 1245 building, and defendant chased him. As Rankin ran, he discarded the gun because it was out of bullets, and he did not want to be caught with it. Defendant caught up with Rankin near the back of the staircase, put him in a chokehold, and struck him several times in the back of his head before suddenly releasing him. Rankin ran up the stairs because he intended to get a gun from his girlfriend's apartment. When he got into the vestibule, he saw that defendant was still at the bottom of the stairs, and a person was approaching defendant. As Rankin continued into the apartment, he heard a gunshot. Once he was inside the apartment, he looked out the window and saw Johnson running toward the 1255 building and defendant walking in the opposite direction. Rankin was later taken into custody.
¶ 9 Kyera Davis testified that she was in apartment 201 of the 1245 building on the night of the shooting. During the commotion, she looked out the back window, which faced the stairs and the landing located in the rear of the 1245 building. She observed defendant hold Rankin in a chokehold and repeatedly punch him for "about a couple minutes." She then observed Johnson approach, and defendant let go of Rankin, who then ran up the stairs. Davis further testified that defendant took a "fighting stance," and began to fight Johnson. During the fight, defendant "pushed [Johnson] back and then pulled out something from his side and he shot [Johnson]" one time from about six steps away. She then observed Johnson run toward the 1255 building and defendant run in the opposite direction. Davis could not see Johnson's hands when defendant pushed him away. She also did not see Johnson hold or pull out a gun during the struggle.
¶ 10 Officer Keith Chrastka of the Elgin police department testified that he was dispatched to the Mill at approximately 2:28 a.m. on the morning of the shooting. At the scene, he discovered Johnson's body lying on a grassy area near the entrance to the 1255 building. He found no weapon in the immediate vicinity. Detective Kevin Senne of the Elgin police department testified that he was one of the evidence technicians who worked the scene. Two vehicles in the front parking lot of the 1245 building appeared to have been struck by bullets. He did not locate any shell casings, projectiles, or weapons during his search in front of the 1245 building. During his search of the rear of both the 1245 and 1255 buildings, he located a shell casing, later determined to have been fired from defendant's gun, on the ground near the staircase of the 1245 building. No other shell casings, bullets, or weapons were recovered.
¶ 11 Ronald Doss testified that, at the time of trial, he had known defendant for 13 years. At around 5:15 a.m. on the morning of the incident, he received a phone call from defendant, who stated that he needed to speak with him. Doss replied that he was busy and would talk to him later. In the afternoon on May 28, 2006, Doss saw defendant at a barbeque at defendant's grandmother's house. Defendant stated that Rankin and another individual jumped a man named "Demo" and that defendant tried to break it up but ended up fighting. Defendant next stated that they were winning the fight, but then "dude started shootin' at [defendant]." Doss could not remember who defendant said shot at him. Defendant "told [Doss] that at the time he was scared, so he took a gun and shot back." Defendant also told him that "the guy was shooting and he was hiding and between shots he shot back." Further, defendant told Doss that there was a chase "through the 45 building," that Rankin ran into apartment 201, and that he and "the other guy had a scuffle in the back of the building." Defendant did not tell Doss that he shot the other individual. Doss testified that he and defendant agreed that defendant needed to get rid of his gun. Doss suggested a lake in Streamwood, and Doss had his daughter's mother drive them there. Once at the lake, defendant took what Doss believed was a gun to the edge of the lake and then return to the car. Doss never saw the gun. They then returned to the barbecue, and defendant told Doss that he could not believe that Rankin tried to kill him. In November 2007, Doss accompanied police to the lake and demonstrated how defendant threw the weapon. The gun was recovered by police.
¶ 12 Doss acknowledged that he agreed to testify against defendant as part of a plea deal in an unrelated drug case. In April 2008, Doss was interviewed by police and provided a taped statement. Over defense counsel's objections, the State asked Doss: "When you gave that narrative statement on the tape, did you state this: [Defendant] stated he jumped up and said, 'oh, you ran out of bullets,' and chased him into *** the 1245 building." Doss acknowledged making the statement., as well as clarified that "[i]t was somewhere along those lines. It wasn't those exact words."
¶ 13 Defendant testified that at the time of the incident, he had been living with his girlfriend at 1287 Fleetwood Drive in the Mills (the 1287 building), but he had broken up with her that day and moved in with his cousin, who lived at 1223 Fleetwood Drive (the 1223 building). At 11:00 p.m. on the date of the incident, he and Doss were in front of the 1287 building, and Doss and others were trying to convince him to go out to celebrate a birthday with them. Defendant declined and began walking back to his cousin's apartment, while Doss and the others left to go out for the evening. Defendant walked through the rear of the 1245 building and stopped to talk with a female that he knew. While they spoke, defendant observed Rankin sell marijuana to a man named "Terk." Rankin and Terk argued "about the money and the size of the bag." Defendant pulled Terk away from the argument and walked with him to calm him down. Defendant then returned to his cousin's apartment.
¶ 14 At about 3:15 a.m., defendant exited the apartment and headed toward the 1287 building with hopes of meeting his girlfriend. On his way there, he observed 10 to 15 people, including Rankin, outside the front of the 1245 building. Rankin approached defendant, and they had a calm and friendly conversation. As they spoke, defendant observed three individuals exit the 1245 building and approach them. Defendant stepped aside from Rankin, because he did not want the individuals to think that he was with Rankin. One of the individuals began arguing with Rankin, and they were yelling back and forth. The individual pulled a beer bottle out from his pocket and hit Rankin with it. During the confrontation, Johnson stood in the grassy area by the stairs of the 1245 building. The individual then pulled another beer bottle from his pocket and hit Rankin again. Defendant testified that Rankin then ran towards the stairs of the 1245 building, and Johnson approached the individual who had fought Rankin. Johnson and the individual argued, and Johnson then ran and stood by Rankin, who had reached the stairs. Defendant testified that he did not participate in the confrontation between Rankin and the individual. The three individuals then got into a car and left. Defendant remained in front of the 1245 building after the altercation because he "didn't want to give anybody the impression that [he] was with anybody or was taking sides." Defendant then proceeded toward the 1287 building by walking through the parking lot in front of the 1245 building. Defendant then observed Rankin and Johnson run from around the corner of the 1245 building and stop about six to eight feet from him. Defendant testified that he continued to walk because he saw that Rankin had a gun in his left hand. Johnson said something to Rankin, and Rankin pointed the gun at defendant and began firing it. Defendant was "like six to eight feet away" from Rankin when he began firing at him, and defendant could see the flash of the muzzle. Defendant "hopped behind a car" and hid until the shooting stopped. He heard "two to three" gunshots but did not hear anything else. He did not "hear any clicking of the gun."
¶ 15 When defendant did not hear any more gunshots, he got up and looked around but did not see anything. He took off running to go to his cousin's apartment. As he ran around the edge of the 1245 building, he "almost run dead smack into [Rankin], who was standing in back of the building by the side of the stairs. Defendant saw that Rankin did not have a gun in his hand, so he put Rankin in a chokehold and began punching him. Defendant asked Rankin where his gun was, and Rankin pulled it out and tossed it onto a grassy area next to the stairs. Defendant heard someone approaching, so he let Rankin go, turned around, and saw Johnson about five or six feet away. Defendant descended the stairs and saw Johnson look to the right side of the stairs, where Rankin had thrown his gun. Defendant "tried to walk over there to like kick the gun or try to hide it but [Johnson] followed [defendant]. Defendant and Johnson got into a fist fight. During the scuffle, Johnson attempted to pick up the gun that Rankin had tossed, which defendant believed was loaded. Defendant punched him. Johnson again tried to pick up Rankin's gun, so defendant pulled out his own gun and fired when he was approximately two or three feet away from Johnson. After defendant shot Johnson, he ran to his cousin's apartment and Johnson ran in the opposite direction. Defendant further testified that, on May 28, 2006, he and Doss spoke at his grandmother's barbecue about the shooting. Defendant denied telling Doss that he heard Rankin's gun make a clicking sound, or that he chased Rankin through the 1245 building.
¶ 16 After closing arguments, the jury found defendant guilty of first-degree murder and was sentenced by the court to 39 years' imprisonment.
¶ 17 On direct appeal, defendant's counsel raised two issues: (1) that his conviction should be reduced to second-degree murder because, at the time of the killing, he believed that the deadly force he used was necessary to prevent his imminent death or great bodily harm; and (2) that one of the imposed fines should be vacated. On October 25, 2010, we affirmed defendant's conviction but vacated the fine. People v. Harris, No. 2-08-1168 (2010) (unpublished order under Supreme Court Rule 23). In rejecting defendant's argument that his conviction should be reduced, we stated that the jury had ample grounds to reject defendant's claim that he shot Johnson because Johnson appeared to be reaching for the gun that Rankin had discarded. We stated that overwhelming evidence refuted defendant's version of the shooting, including the testimony of Davis, who testified that she had an unobstructed view of defendant and Johnson squaring off to fight, and that Davis saw defendant push Johnson backward, pull out a gun, and shoot Johnson. We also noted Doss's statement that defendant confided in him that he knew Rankin's gun was out of bullets, and that the testimony was corroborated by that of Rankin, who testified that he shot at defendant until the gun made "a click sound."
¶ 18 On May 9, 2013, defendant filed a pro se petition arguing that: (1) he was not proven guilty of first-degree murder beyond a reasonable doubt where the evidence showed that he and the victim were engaged in mutual combat immediately before the shooting; (2) newly discovered evidence showed that the State coerced Doss to testify falsely against defendant; (3) he should have been charged with second-degree murder rather than first-degree murder where he was acting under strong provocation after being fired upon by Rankin; (4) the State engaged in misconduct when it commented on defendant's post-arrest silence where it emphasized he did not claim self-defense when questioned by police, but waited until after he had reviewed discovery, and required defendant hold a gun in front of the jury; (5) his appellate counsel was ineffective for failing to raise these issues on direct appeal; and (6) the cumulative effect of these errors denied him a fair trial.
¶ 19 In support of his claim of newly discovered evidence, defendant attached affidavits from himself and his mother, Phyllis Harris, as well as a copy of a letter dated November 11, 2008, that Doss purportedly sent defendant's mother. In defendant's affidavit, he averred that, after he was found guilty, he rode on an Illinois Department of Corrections (IDOC) bus with Doss, who promised defendant that "he would tell the truth about lying on the stand" and would help him pay for an attorney. Defendant's mother averred that she received a letter from Doss (1) stating that he was tricked into making false statements against defendant; (2) asking her to forgive him for betraying defendant; and (3) stating that, upon his own release from prison, he would help pay for defendant's legal fees and would "tell the truth" to free defendant. Doss's letter to defendant's mother stated that "those people tricked [him] good," and that, upon his release from prison, he would pay defendant's attorney fees and "let [defendant's counsel] know that" Doss's "entire statement and testimony" were coerced. The letter further stated that Doss would "do everything in [his] power to right [his] wrong."
¶ 20 On August 1, 2013, the circuit court summarily dismissed the petition as frivolous and patently without merit. Defendant filed a notice of appeal on August 28, 2013. On appeal, the State filed a confession of error averring that defendant had originally sought postconviction relief on July 24, 2012, but the pleading was erroneously not treated as a postconviction petition, and that his May 9, 2013, postconviction petition was a "refiling of earlier pleadings based, in part, on the defendant's multiple attempts to determine the status of his original pleading and seek clarification or recharacterization." On May 20, 2014, we granted defendant's motion for summary reversal and remanded the matter for second-stage proceedings.
¶ 21 On August 13, 2014, the public defender was appointed to represent defendant. Over the next several years, appointed counsel requested numerous continuances, often through colleagues who stepped up in his absence, asserting that he needed additional time to review the record.
¶ 22 On January 15, 2021, defendant's appointed counsel filed an amended postconviction petition on defendant's behalf. It alleged that Doss's letter to defendant's mother and the affidavits from defendant and his mother constituted new evidence of defendant's actual innocence. It also alleged that defendant's appellate counsel rendered ineffective assistance by failing to raise the following issues on direct appeal: (1) defendant's right to confrontation was violated where the State did not present the diver who recovered the firearm that was used in the shooting, but instead called a detective who testified as to observing the diver retrieve the firearm; (2) the State failed to establish a proper chain of custody for the firearm; (3) defendant's right to confrontation was violated where the circuit court did not allow him to question Rankin regarding a pending domestic battery charge; (4) the evidence was insufficient to prove defendant guilty of first-degree murder where it showed that defendant acted under serious provocation and where the State's witnesses lacked credibility; (5) the State improperly commented on defendant's post-arrest silence to imply that he fabricated his claim of self-defense to align with the police reports; (6) the State knowingly allowed Rankin to testify falsely that he did not receive a plea deal in exchange for his testimony at defendant's trial; (7) defendant's right to confrontation was violated when Doss's prior statement was used as substantive evidence when it should have been limited to impeachment evidence; (8) the State engaged in misconduct where it suggested that defendant fabricated his self-defense claim to align with the police reports, required defendant to hold the firearm in front of the jury during his cross-examination, and knowingly presented Doss's false testimony; (9) the trial court abused its discretion in sentencing defendant to 39 years' imprisonment; and (10) the cumulative effect of the trial errors and omissions denied defendant a fair trial. The amended petition did not cite any legal authority, and the only exhibits attached to it were a copy of the opening brief from the direct appeal and the same letter and affidavits that were previously attached to defendant's pro se petition that he filed more than six years earlier.
¶ 23 On March 19, 2021, the State filed a motion to dismiss defendant's amended postconviction petition. Defendant's appointed counsel thereafter filed a Rule 651(c) certificate and a response to the State's motion to dismiss. After hearing argument, the circuit court dismissed the petition. In announcing its ruling, the court stated, pertinently:
"I can find nothing in the petition *** that shows a violation or substantial-a violation of constitutional rights that are not affirmatively rebutted by the record or that are supported by affidavits. The issues about actual innocence, they are not properly supported by affidavit. I have no idea what Mr. Doss would say, no one does. He writes a letter, apparently to the defendant's mother, talking about-uhm-that he lied; we don't know what he lied about, we don't know what he would say if he were to come to testify again. The other affidavits supported by family members are insufficient for that purpose, so I find that the issue fails on its face.
With respect to the issues raised about ineffective assistance of appellate counsel, there's nothing in there, nothing in the issues that have been raised that rise to the level of
a substantial-make a substantial showing of a constitutional violation. I find that the defendant is not entitled to a third-stage hearing and I'm going to dismiss the petition."
¶ 24 Defendant timely filed a notice of appeal.
¶ 25 II. ANALYSIS
¶ 26 Defendant contends that he was denied the reasonable assistance of counsel during second stage postconviction proceedings because, among other reasons, counsel failed to seek an affidavit from Doss, who purportedly wished to recant his entire testimony and whose testimony was allegedly procured by the State through coercion. Defendant requests that we reverse the dismissal of his postconviction petition and remand his case for new second-stage proceedings with the appointment of new counsel.
¶ 27 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides a three-stage process by which a criminal defendant may assert that a conviction was the result of "a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." Id. § 122-1(a)(1). A petition brought pursuant to the Act is a collateral proceeding that allows inquiry into constitutional issues that were not, and could not have been, raised on direct appeal. People v. Blair, 215 Ill.2d 427, 447 (2005). In such proceedings, the circuit court does not reevaluate a defendant's guilt or innocence, but rather, examines constitutional issues that escaped earlier review. Id. Postconviction proceedings begin when a defendant files a petition in the circuit court which, among other requirements, sets forth the respects in which petitioner's constitutional rights were violated. 725 ILCS 5/122-2 (West 2020). The Act requires that the petition "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." Id.; People v. Johnson, 401 Ill.App.3d 685, 691 (2010). The purpose is to show that the allegations in the petition can be objectively or independently corroborated. People v. Delton, 227 Ill.2d 247, 254 (2008). The affidavits and exhibits accompanying the petition "must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition's allegations." Id.
¶ 28 At the first stage, the trial court independently reviews and assesses the petition within 90 days of its filing, and it must dismiss the petition if it determines that the petition "is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2020). If the court concludes that the petition is not frivolous or patently without merit, or if it fails to act on the petition within 90 days of its filing, the petition advances to the second stage. Id. § 122-4.
¶ 29 At the second stage, the court may appoint counsel to represent an indigent defendant, and appointed counsel may amend the pro se postconviction petition. People v. Boclair, 202 Ill.2d 89, 100 (2002). The State may then file a motion to dismiss the postconviction petition. 725 ILCS 5/122-5 (West 2020). "If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still part of the second stage." People v. Addison, 2021 IL App (2d) 180545, ¶ 24 (quoting People v. Wheeler, 392 Ill.App.3d 303, 308 (2009)). At this stage, the trial court may not engage in any fact-finding because all well-pleaded facts that are not rebutted by the record are accepted as true. People v. Childress, 191 Ill.2d 168, 174 (2000). The petition and any accompanying documentation must make a substantial showing of a constitutional violation in order to survive dismissal, and, if it does, it proceeds to the third stage for an evidentiary hearing. People v. Hansen, 2011 IL App (2d) 081226, ¶ 18.
¶ 30 There is no constitutional right to the assistance of counsel in the context of postconviction proceedings, as the right is wholly statutory. Addison, 2021 IL App (2d) 180545, ¶ 25. Postconviction petitioners are entitled only to the level of assistance provided by the Act, which provides for reasonable assistance of counsel. People v. Greer, 212 Ill.2d 192, 204 (2004). To ensure that postconviction petitioners receive a reasonable level of assistance under the Act, Rule 651(c) imposes specific duties on postconviction counsel. People v. Moore, 2018 IL App (2d) 170120, ¶ 33. It requires counsel to consult with the defendant to ascertain his or her contentions of deprivation of constitutional rights, examine the trial record, and amend the pro se petition as necessary to adequately present the petitioner's claims. People v. Nitz, 2011 IL App (2d) 100031, ¶ 18. Compliance with the rule is mandatory and may be shown by a certificate filed by postconviction counsel. Addison, 2021 IL App (2d) 180545, ¶ 25. Counsel's duty is to ensure that the defendant's constitutional claims of merit "will be properly recognized, developed and articulated in the post-conviction proceedings." People v. King, 39 Ill.2d 295, 297 (1968). The record must show that postconviction counsel complied with Rule 651(c). People v. Lander, 215 Ill.2d 577, 584 (2005). The filing of a Rule 651 certificate creates a rebuttable presumption that counsel provided reasonable assistance. People v. Custer, 2019 IL 123339, ¶ 32. However, the filing of such a certificate is not conclusive of compliance and may be rebutted by the record. People v. Schlosser, 2012 IL App (1st) 092523, ¶ 33 ("Counsel cannot fulfill his Rule 651(c) duties simply by filing a certificate if he has not provided adequate assistance"). Where the presumption is triggered, the defendant bears the burden of overcoming the presumption. People v. Profit, 2012 IL App (1st) 101307, ¶ 19. Moreover, noncompliance with Rule 651(c) may not be excused as harmless error (People v. Suarez, 224 Ill.2d 37, 51 (2007)) and "a defendant is not required to make a positive showing that his counsel's failure to comply with Rule 651(c) caused prejudice" (Nitz, 2011 IL App (2d) 100031, ¶ 18).
¶ 31 Defendant acknowledges that, on April 6, 2021, his postconviction counsel filed a certificate pursuant to Rule 651(c), wherein he certified that he consulted with defendant in person to ascertain his contentions of deprivation of constitutional rights, examined the record of the trial proceedings, and made amendments to the pro se postconviction petition as necessary for an adequate presentation of defendant's contentions. As a result, there is a rebuttable presumption that counsel provided reasonable assistance during second-stage proceedings under the Act. Custer, 2019 IL 123339, ¶ 32. A defendant may overcome the presumption of reasonable assistance by demonstrating that counsel failed to substantially comply with the requirements of Rule 651(c). People v. Jones, 2011 IL App (1st) 092529, ¶ 23; People v. Richardson, 382 Ill.App.3d 248, 257 (2008).
¶ 32 Here, defendant argues that the record affirmatively demonstrates that counsel provided unreasonable representation and failed to fulfill his duties as mandated by Rule 651(c). In addition to "counsel's egregious seven-year delay in filing the amended petition," defendant argues that his counsel failed to satisfy his obligations under the rule by failing to attempt to obtain the requisite affidavit from Doss. We agree.
¶ 33 As noted, defendant attached to his pro se petition an affidavit he executed stating that, following his murder conviction, he and Doss rode together on an IDOC bus, where Doss promised that he would tell the truth about lying at defendant's trial. Defendant also attached an affidavit from his mother, in which she averred that she received a letter from Doss stating that he was tricked into making false statements against defendant and that he was willing to tell the truth to help free defendant. A letter purportedly written by Doss to defendant's mother was also attached to defendant's petition. It stated that "those people tricked [him] good," and that, upon his own release from prison, he would let defendant's attorney know that his "entire statement and testimony" were coerced, and he would "do everything in [his] power to right [his] wrong." More than six years after defendant filed his pro se petition, postconviction counsel filed an amended petition for postconviction relief and reattached the letter and affidavits as support. The amended petition included neither an affidavit from Doss nor an explanation for its absence.
¶ 34 In moving to dismiss, the State argued pertinently that the amended petition did not make a substantial showing of a constitutional violation because the attached evidence, including Doss's letter and the affidavits executed by defendant and his mother, were insufficient to warrant a third-stage evidentiary hearing. The State stressed that section 122-2 of the Act requires that a postconviction petition attach "affidavits, records, or other evidence supporting its allegations or state why the same are not attached," and argued that, in the absence of an affidavit executed by Doss containing specific facts as to what his testimony would be, defendant failed to identify the source, character, and availability of the alleged evidence supporting the allegations raised in the petition.
¶ 35 In response to the State's argument, postconviction counsel took the position that an affidavit from Doss was unnecessary "as long as there is some other evidence supporting its allegations." Counsel asserted that "[statements made by Doss to Petitioner and Petitioner's mother constitute such other evidence." Counsel also highlighted Doss's testimony regarding defendant's statement that he knew Rankin's gun was out of ammo when defendant shot Johnson, and argued that, "[w]ith recanted or changed testimony" from Doss, the result of the trial would have been different. At the hearing on the State's motion to dismiss, postconviction counsel stated that the witness was available to corroborate defendant's claim. He also reiterated his belief that an affidavit from Doss was unnecessary because the affidavits from defendant and his mother constituted sufficient evidentiary support to make a substantial showing of a constitutional violation. Postconviction counsel was incorrect.
¶ 36 Under the Act, the defendant "bears the burden of making a substantial showing of a constitutional violation." People v. Shaw, 2019 IL App (1st) 152994, ¶ 19 (quoting People v. Hall, 217 Ill.2d 324, 334 (2005)). The petition and any accompanying documentation must make a substantial showing of a constitutional violation in order to survive dismissal and, if it does, it proceeds to the third stage for an evidentiary hearing. Hansen, 2011 IL App (2d) 081226, ¶ 18. "An evidentiary hearing will be held only where the allegations of the postconviction petition make a substantial showing that the defendant's constitutional rights have been violated and the petition is supported by affidavits, records, or other evidence or explains why these items are not attached." People v. Waldrop, 353 Ill.App.3d 244, 249 (2004) (citing People v. Treadway, 245 Ill.App.3d 1023, 1025 (1993)).
¶ 37 While Doss's unnotarized letter perhaps would have been sufficient under first-stage proceedings to demonstrate a factual basis showing that the allegations in the petition were capable of independent or objective corroboration, it was insufficient for second-stage proceedings. "In most cases where [an ineffective assistance of trial counsel] claim is raised, without an affidavit, there can be no way to assess whether the proposed witness could have provided evidence that would have been helpful to the defense." People v. Dupree, 2018 IL 122307, ¶ 34.
¶ 38 The State maintains that appointed counsel's failure to obtain an affidavit from Doss is insufficient to rebut the presumption triggered by the filing of the Rule 651(c) certificate that counsel provided reasonable assistance. It stresses that, concerning counsel's duty to obtain and submit affidavits, our supreme court has stated that, "[i]n the ordinary case, a trial court ruling upon a motion to dismiss a [postconviction] petition which is not supported by affidavits or other documents may reasonably presume that [postconviction] counsel made a concerted effort to obtain affidavits in support of the [postconviction] claims, but was unable to do so." People v. Johnson, 154 Ill.2d 227, 241 (1993). The State apparently attempts to avail itself of the presumption because, without citation to the record, it asserts that "post-conviction counsel was unable to procure a notarized affidavit from Ronald Doss himself." It continues that, notwithstanding postconviction counsel's inability to obtain the affidavit, counsel "provided a detailed account of his efforts to present a viable claim[,] *** including obtaining notarized affidavits from defendant, defendant's mother[,] and a letter from Doss to defendant's mother." Both of these assertions are affirmatively rebutted by the record.
¶ 39 Concerning the latter assertion, none of the actions outlined in the "detailed account of [postconviction counsel's] efforts" to obtain Doss's affidavit were undertaken by counsel. Rather, each of the items that the State contends were "obtain[ed]" by postconviction counsel predate counsel's appointment. The affidavits of defendant and his mother, as well as the letter Doss purportedly sent to defendant's mother, were all obtained by defendant, as evidenced by the attachment of these documents to defendant' s pro se postconviction petition that he filed in May 2013. Doss's letter to defendant's mother bears a date of October 11, 2008, defendant's mother's affidavit was sworn on May 3, 2012, and defendant's affidavit was sworn on July 11, 2013. All of these documents predate postconviction counsel's August 13, 2014, appointment, which makes plain that counsel took none of the efforts related to Doss's purported recanted testimony as outlined in the amended postconviction petition. Instead, it appears counsel simply reattached to the amended postconviction petition those documents that defendant had already attached to his pro se petition, which defendant had filed more than six years earlier.
¶ 40 Regarding the former assertion, the record flatly rebuts the presumption that counsel attempted to obtain from Doss evidentiary support for defendant's claim. Under analogous circumstances, reviewing courts have held that counsel failed to render reasonable assistance where the record positively rebuts the presumption that counsel made a concerted effort to obtain the necessary affidavits. See Johnson, 154 Ill.2d at 241; Waldrop, 353 Ill.App.3d at 250-51. In Johnson, our supreme court determined that postconviction counsel failed to comply with Rule 651(c) because counsel admitted in court and filed an affidavit that established that he made no effort to obtain affidavits from the witness that the defendant expressly identified in his pro se postconviction petition. Johnson, 154 Ill.2d 227, 241. The court stated that, where counsel made no effort to obtain affidavits from witnesses who were known to him, he fell short of the requirements of Rule 651(c). It stated that, counsel was obligated to, at a minimum, attempt to obtain evidentiary support for the claims raised in the postconviction petition. Id. at 245. Waldrop is also instructive. There, this court held that postconviction counsel did not provide reasonable assistance and failed to comply with Rule 651(c) where the record showed that he erroneously believed that he had no duty to seek an affidavit from a witness identified in defendant's pro se postconviction petition. Waldrop, 353 Ill.App.3d at 250. In other words, the record "flatly contradicted" the presumption that counsel made a concerted effort to obtain an affidavit in support of defendant's claim. Id. We also rejected counsel's assertion that defendant's verification, alone, was sufficient. Id.; See also People v. Urzua, 2021 IL App (2d) 200231, ¶ 84 (rejecting argument that, because the witness signed an "affidavit" under penalty of perjury, it did not need to be notarized).
¶ 41 Here, like in Johnson and Waldrop, the record demonstrates postconviction counsel's mistaken belief that an affidavit from Doss-a witness who purportedly was coerced by the state and wished to recant his entire testimony-was unnecessary. Counsel made the assertion during the hearing on the State's motion to dismiss, as well as in defendant's response to the State's motion to dismiss, where he argued that the amended petition "need not have an affidavit" from Doss because it was supported by affidavits from defendant and his mother, as well as Doss's letter. The State responds that defendant misconstrues appointed counsel's assertion, and instead views the statement as "appropriately conveying that, where efforts to obtain an affidavit prove unsuccessful, other evidence may be used to support the claim." The State's position ignores that counsel explicitly stated at the hearing on the State's motion to dismiss that "[t]he witnesses are available and can corroborate the affidavits." See People v. Johnson, 154 Ill.2d 227, 239 (noting that affidavits that accompany a postconviction petition must identify, with reasonable certainty, the sources, character, and availability of alleged evidence supporting a postconviction petitioner's allegations).
¶ 42 Further, counsel made no assertion that he attempted to contact Doss or obtain an affidavit from him, and likewise provided no explanation for not having done so during the more than six-year period in which defendant' s pro se postconviction petition languished. The failure to obtain an affidavit from Doss was fatal to defendant's claim because, without it, the circuit court could not determine whether a substantial showing of a constitutional violation could be made. As noted by defendant, the court found that the issue "fail[ed] on its face" due to the lack of an affidavit. Rather than fulfilling his duties under Rule 651(c) to amend defendant's pro se petition as necessary to adequately present defendant's claim, postconviction counsel extinguished the issue by failing to support it with the pertinent affidavit. The State asserts that the absence of an affidavit from Doss was "of no consequence because it was not the basis of the trial court's dismissal of the petition." This contention, too, is belied by the record. In dismissing the amended petition, the court explained:
"The issues about actual innocence, they are not properly supported by affidavit. I have no idea what Mr. Doss would say, no one does. He writes a letter, apparently to the
defendant's mother, talking about-uhm-that he lied; we don't know what he lied about, we don't know what he would say if he were to come to testify again. The other affidavits supported by family members are insufficient for that purpose, so I find that issue fails on its face."
¶ 43 Doss's trial testimony, including that defendant allegedly admitted to him that he believed that Rankin's gun was out of bullets, was devastating to defendant's self-defense claim. See People v. Sanders, 2021 IL App (5th) 180339, ¶ 68 (stating that a defendant's confession is "probably the most probative and damaging evidence that can be admitted against him"). The State highlighted Doss's recorded statement, which he acknowledged making at trial, as evidence of defendant's state of mind at the time of the shooting. During closing arguments, the State referred to Doss's recorded statement, which undermined defendant's self-defense claim. Specifically, the prosecutor stated: "This defendant knew after *** Rankin fired that gun that he was out of bullets, and he jumped up and says that and then he chased him. Why wouldn't he chase him? He knew he was out of bullets, that's why he chased him." If Doss was available, it was incumbent upon appointed counsel to attempt to procure his affidavit detailing in what respects he provided false testimony and outlining what his truthful testimony would be if called to testify again. Because the record demonstrates that appointed counsel erroneously believed that an affidavit from Doss was unnecessary-especially where counsel represented to the court that Doss was available to support defendant's allegations-his failure to seek an affidavit from Doss fell short of the requirements of Rule 651(c) and constituted unreasonable assistance of postconviction counsel.
¶ 44 It is well established that noncompliance with the rule cannot be excused even if the petition contains no meritorious issue, nor will it be excused as harmless error. Suarez, 224 Ill.2d at 51. Defendant also need not show that he suffered prejudice as the result of counsel's noncompliance. Nitz, 2011 IL App (2d) 100031, ¶ 18. This is so because "the limited right to counsel under the Act cannot be fully realized when postconviction counsel does not adequately fulfill his or her duties under the rule." Addison, 2021 IL App (2d) 180545, ¶ 30. Counsel must demonstrate compliance with the rule regardless of the viability of the petitioner's claims. Id. In light postconviction counsel's failure to comply with Rule 651(c), "the appropriate remedy is to remand the matter to the circuit court for further second-stage proceedings, regardless of whether the claims raised in the petition had merit." Urzua, 2021 IL App (2d) 200231, ¶ 89 (citing Suarez, 224 Ill.2d at 47-48).
¶ 45 III. CONCLUSION
¶ 46 For the above reasons, we reverse the judgment of the circuit court of Kane County and remand the matter for defendant to replead his postconviction petition with the appointment of new counsel and compliance with Rule 651(c).
¶ 47 Reversed and remanded.