from the Circuit Court of Macon County, No. 08-CF-1805; the
Hon. Hugh Finson, Judge, presiding.
E. Chadd, Patricia Mysza, and Aliza R. Kaliski, of State
Appellate Defender's Office, of Chicago, for appellant.
Scott, State's Attorney, of Decatur (Patrick Delfino,
David J. Robinson, and John M. Zimmerman, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Justice Harris concurred in the judgment and
1 Following a June 2011 bench trial, the trial court
convicted defendant, Emerson T. Burns, of first degree murder
(720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). In July 2011, the
court sentenced him to 50 years in prison. In December 2013,
following the denial of his direct appeal, defendant pro
se filed a postconviction petition. In October 2016, the
State filed a motion to dismiss defendant's amended
postconviction petition, which the trial court granted.
2 Defendant appeals, arguing that the trial court erred by
dismissing his petition at the second stage of proceedings
because he made a substantial showing that his trial counsel
rendered ineffective assistance by refusing to let him
testify at trial. In the alternative, defendant argues this
court should remand for further proceedings because his
postconviction attorneys failed to comply with Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
3 The State concedes that defendant's postconviction
attorneys failed to comply with Rule 651. We accept this
concession and remand for further second-stage postconviction
proceedings. We also direct the trial court to provide
defendant new postconviction counsel who shall have leave to
amend and to add supporting documentation, as counsel deems
necessary, in support of defendant's claims.
4 I. BACKGROUND
5 In December 2008, the State charged defendant with three
counts of first degree murder in connection with the death of
six-month-old A.S. (born June 8, 2008). In June 2011,
defendant's case proceeded to a bench trial, and the
trial count found him guilty of first degree murder and
sentenced him to 50 years in prison. Defendant appealed, and
this court affirmed. People v. Burns, 2012 IL App
(4th) 110670, ¶ 23, 981 N.E.2d 503.
6 In December 2013, defendant pro se filed a
petition for postconviction relief under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)),
alleging (1) appellate counsel was ineffective "by not
raising key issues on direct appeal" and (2) the trial
court abused its discretion "by reaching a verdict by
drawing a conclusion from incompetent evidence." In
March 2014, the trial court advanced the petition to the
second stage of proceedings after the court failed to rule on
the petition within 90 days as required by the Act.
Id. § 122-2.1. After permitting defendant's
initially appointed counsel to withdraw, the trial court in
December 2015 appointed new counsel to represent defendant.
7 In August 2016, defendant, through postconviction counsel,
filed an amended petition, alleging trial counsel provided
ineffective assistance by (1) failing to present evidence to
rebut the State's theory that whoever bit A.S. also
killed her and (2) not allowing defendant to testify at trial
despite his request to do so. In that petition, defendant
also alleged that appellate counsel provided ineffective
assistance. Defendant attached his affidavit to the petition,
in which he averred as follows:
"1. I informed my trial counsel, Ms. Karen Root, right
before my trial that I wanted to testify in my own defense.
2. Ms. Root told me I 'would get eighty years' if I
did testify and that I 'would probably get forty