23 order withdrawn January 23, 2017
Opinion filed January 23, 2017
from the Circuit Court of Peoria County, No. 09-CF-684; the
Hon. David A. Brown, Judge, presiding.
Michael J. Pelletier and John M. McCarthy, of State Appellate
Defender's Office, of Springfield, for appellant.
Brady, State's Attorney, of Peoria (Justin A. Nicolosi,
of State's Attorneys Appellate Prosecutor's Office,
of counsel), for the People.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion. Justices O'Brien and Lytton
concurred in the judgment and opinion.
HOLDRIDGE, PRESIDING JUSTICE
1 The defendant, William A. Malone, appeals from the
dismissal of his postconviction petition, arguing that
postconviction counsel provided unreasonable assistance by
failing to amend the postconviction petition or withdraw as
3 The defendant was convicted of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(1) (West 2008)), home invasion
(720 ILCS 5/12-11(a)(2) (West 2008)), aggravated robbery (720
ILCS 5/18-5(a) (West 2008)), and failure to register as a sex
offender (730 ILCS 150/10 (West 2008)). He was sentenced,
respectively, to natural life imprisonment, 30 years'
imprisonment, 30 years' imprisonment, and 10 years'
imprisonment. The home invasion, aggravated robbery, and
failure to register as a sex offender sentences would all run
concurrent and would be consecutive to the sentence for
aggravated criminal sexual assault. On appeal, this court
affirmed his convictions, reduced his aggravated robbery
sentence to 15 years, and vacated a DNA testing fee.
People v. Malone, 2012 IL App (3d) 100425-U, ¶
4 The defendant subsequently filed a pro se
postconviction petition, claiming that (1) his rights were
violated when the State filed multiple counts charging the
same crime under different theories, and home invasion was a
lesser included offense of aggravated robbery; (2) one of the
jurors worked at the same hospital as the victim and another
knew the judge; (3) the prosecutor made improper comments to
discredit the defendant and improperly vouched for the
State's witnesses; and (4) he was not eligible for a
natural life sentence because his prior sex convictions were
for criminal sexual abuse.
5 The trial court appointed counsel to represent the
defendant, and the State filed a motion to dismiss, arguing
that none of the issues the defendant raised in his pro
se petition had merit. Postconviction counsel did not
amend the defendant's postconviction petition nor add any
affidavits or any other supporting documentation. At the
hearing on the State's motion to dismiss, the State chose
to rest on the arguments contained in its motion to dismiss.
Postconviction counsel stated that he disagreed with the
argument set forth in the State's motion to dismiss, but
would also stand on the arguments set forth in the pro
se postconviction petition. The defendant made a
statement at the hearing on the motion to dismiss, which
expounded on his argument about the prosecutor's improper
comments and potential bias of the jurors. The trial court
gave the defendant the opportunity to submit further
documentation of his claims should he so choose. It does not
appear from the record that the defendant submitted any
further documentation. The trial court took the matter under
advisement and ultimately granted the State's motion to
dismiss. Postconviction counsel filed a Rule 651(c)
certificate. Ill. S.Ct. R. 651(c) (eff. Feb. 6, 2013).
7 On appeal, the defendant argues that postconviction counsel
provided unreasonable assistance as counsel's
representation amounted to representation "in name
only." Specifically, the defendant argues that
postconviction counsel should have either amended the