Court of Appeals of Illinois, First District, Third Division
23 order filed September 29, 2016
23 order withdrawn November 7, 2016
Rehearing denied November 7, 2016
from the Circuit Court of Cook County, No. 07-CR-00750; the
Hon. Thomas P. Fecarotta, Jr., Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Kate E. Schwartz,
of State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, John E. Nowak, and Brian K. Hodes, Assistant
tate's Attorneys, of counsel), for the People.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Pucinski
concurred in the judgment and opinion.
1 Defendant Kevin Wallace appeals from the second-stage
dismissal of his amended petition for relief under the
Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et
seq. (West 2012). Defendant contends, for the first time
on appeal, that his negotiated concurrent sentences for first
degree murder and arson are void because relevant statutes
mandate consecutive sentences. He argues that he may
challenge his sentence at any time under the void sentence
rule and that our supreme court's recent abolishment of
that rule in People v. Castleberry, 2015 IL 116916,
cannot be applied retroactively to his case. Defendant also
contends that postconviction counsel provided unreasonable
assistance for failing to attach relevant evidence to his
petition and failing to amend the petition to overcome a
procedural bar. We affirm.
2 I. BACKGROUND
3 Following the death of defendant's father, Ronald
Wallace, defendant was charged with 18 counts of first degree
murder, two counts of aggravated arson, one count of
residential arson, one count of armed robbery, and one count
of robbery. On February 25, 2008, defendant entered a
negotiated guilty plea to one count of first degree murder
and one count of residential arson with concurrent 40-year
and 10-year sentences, respectively. During the hearing on
the negotiated plea, the trial court asked the defendant if
he understood the nature of the charges and the rights he was
relinquishing by pleading guilty. Defendant answered
affirmatively to each question. The trial court also asked
defendant, "Are you under the influence of any drugs or
alcohol at this time?" He replied, "No, sir."
Following the State's recitation of a stipulated factual
basis, the court accepted defendant's guilty plea and
sentenced him to the agreed upon concurrent sentences.
Defendant did not file a motion to withdraw his guilty plea
and did not file a direct appeal.
4 Defendant filed a pro se postconviction petition
pursuant to the Act on July 10, 2013. In the petition,
defendant alleged, inter alia, that his plea was
"the result of his mental condition and psychological
pressure, " that he "was not reasoning properly for
a plea, " and that he was "under psychotropic
medication treatment" and had been "on psychotropic
medications since the age of 13." He further alleged
that his trial counsel was constitutionally ineffective for
failing to investigate "the mental health and drug's
[sic] abuse issue." Defendant attached
supporting affidavits from Keith Wallace and Dorothy Wallace
to his petition. Keith averred that defendant had been
"on and off of several different psychotropic
medications since before his incarceration" and
"during the year of his trial, [defendant] often sounded
over-medicated and unable to carry on a conversation. During
court appearances [defendant] seemed unaware and
disconnected." Dorothy averred that defendant was on
"Ritilon" [sic] as a child and saw a
psychiatrist when he was older. She was "not sure
exactly what he was on, but they tried several different ones
that didn't seem to help him." Defendant
subsequently refiled his petition and newly attached various
medical records from his incarceration, dating from 2011 to
5 The trial court docketed defendant's petition on August
30, 2013, and appointed an attorney to represent him.
Postconviction counsel filed a certificate pursuant to
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) on
December 5, 2013. In the certificate, counsel asserted that
she had consulted with defendant by phone and letter to
ascertain his contentions, examined the "report of
proceedings and relevant documents" concerning
defendant's plea and sentencing, and examined
defendant's petition and the documents attached to it.
She also asserted that she had reviewed documents in
defendant's file and attached those relevant to her
certificate. The attached documents included two orders by
the trial court directing a hospital and correctional center
to release defendant's medical records, subpoenas to the
hospital and correctional center, and a transcript from court
proceedings prior to defendant's plea. The transcript
reflects that defendant was not present in court due to ...