from the Circuit Court of the 10th Judicial Circuit, Peoria
County, Illinois, Circuit No. 09-CF-684 Honorable David A.
Brown, Judge, Presiding.
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: (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 their motion to
dismiss. Postconviction counsel stated that they 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
postconviction petition or moved to withdraw as counsel if he
found the petition to be meritless.
8 A defendant's right to postconviction counsel is wholly
statutory, and, under the Post- Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2010)), a petitioner
is only entitled to reasonable assistance of counsel.
People v. Mason, 2016 IL App (4th) 140517, ¶
19. Reasonable assistance of postconviction counsel is
premised on counsel's compliance with Illinois Supreme
Court Rule 651(c). Id. Rule 651(c) provides that
postconviction counsel must file a certificate stating:
"that the attorney has consulted with petitioner by
phone, mail, electronic means or in person to ascertain his
or her 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." Ill. S.Ct. R. 651(c)
(eff. Feb. 6, 2013).
9 Here, postconviction counsel did not amend the
defendant's pro se postconviction petition.
Neither the State nor the defendant's postconviction
counsel presented oral arguments at the hearing on the
State's motion to dismiss, both solely relying on the
arguments in their written documents. Postconviction counsel
filed a Rule 651(c) certificate, which stated that he
consulted with the petitioner, examined the record, and made
any necessary amendments to the petition.
10 The defendant contends that postconviction counsel should
have amended the pro se petition. Postconviction
counsel, however, is not required to amend a defendant's
pro se postconviction petition. People v.
Pace, 386 Ill.App.3d 1056, 1062 (2008). Ethical
obligations prevent counsel from doing so if the claims are
frivolous. Id. If the claims are frivolous,
postconviction counsel has the option of standing on the
allegations in the pro se petition or to withdraw as
counsel. Id. Further, the defendant does not make
any recommendation as to how counsel could have improved the
petition, other than stating that counsel did not attach any
affidavits supporting the claims. "[T]here is no showing
of the existence of any facts or evidence on which such
affidavits could have been founded. Absent a showing of
available material for supporting affidavits, a failure to
present affidavits obviously cannot be considered a neglect
by the attorney." People v. ...