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People v. Waldrop

November 10, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANDREW A. WALDROP, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 94-CF-1492. Honorable James T. Doyle, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

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 People v. Waldrop, No. 2--97--1119 (1999) (unpublished order under Supreme Court Rule 23). He appeals the dismissal of his post-conviction petition, arguing that his post-conviction 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 post-conviction petition alleging ineffective assistance of counsel, abuse of judicial authority, and prosecutorial misconduct. Defendant later filed two amended post-conviction petitions, in which he additionally alleged that he was unlawfully 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 circuit court clerk to provide counsel with the records. Counsel subsequently filed an amended post-conviction 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)). The State argued that defendant's claims were without merit and were barred under res judicata and waiver. Counsel then filed another amended petition, which included additional case law. After arguments, the trial court dismissed the amended petition, defendant filed a notice of appeal, and the court appointed the Office of the State Appellate Defender as counsel.

Defendant now argues that the certificate filed by his post-conviction counsel did not comply with Rule 651(c). The attorney certified that he read all the records of proceedings; that he read the entire common-law record; that, in the amended petition, he raised issues that had not previously been asserted; 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 petitioner either 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 Rule 651(c) and that the dismissal of his post-conviction petition should be reversed.

To ensure that the complaints of a prisoner are adequately presented, the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2002)) contemplates that the attorney appointed 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 constitutional contentions to the court. People v. Richmond, 188 Ill. 2d 376, 381 (1999). Consequently, Rule 651(c), which governs appeals from post-conviction proceedings, provides in relevant part:

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

Along with its appellate brief, the State moved to supplement the record with an additional certificate prepared by post-conviction counsel. In the supplemental certificate, post-conviction counsel stated in part: "[I]n the course of representing defendant, ANDREW WALDROP, in the presentation of his post conviction proceedings ***, I consulted with the defendant by mail, to ascertain his contentions of a deprivation of constitutional right." Defendant objects to the State's motion 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 to the record on appeal where there are material omissions or inaccuracies or if the record is otherwise insufficient 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 impeach or contradict the contents of the record. Miller, 190 Ill. App. 3d at 989. The interpretation of a supreme 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 the State to supplement the record on appeal with a Rule 651(c) certificate. In Harris, the supreme court held that, where the record did not contain a Rule 651(c) certificate and where the judgment otherwise 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 the record with a Rule 651(c) certificate during the appeal. E.g., People v. Yarbrough, 210 Ill. App. 3d 710, 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 record if 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 post-conviction 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 present case are distinguishable from those in Harris. He contends that, in Harris and its progeny, the State was allowed to supplement the record where no Rule 651(c) certificate was ever filed. However, in this case, because a certificate was filed with the trial court, defendant asserts that the State's attempt to 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 the additional certificate contradicts the established record.

We disagree with defendant's claim that post-conviction counsel's supplemental Rule 651(c) certificate contradicts the first certificate. On the contrary, we conclude that the supplemental certificate remedies a material omission from the existing record--the fact that post-conviction counsel consulted with defendant about his claims that he was deprived of his constitutional rights. The remaining statements in post-conviction counsel's certificate are the same as those in the ...


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