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2021 IL App (5th) 200105-U

NO. 5-20-0105

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 10-CF-1013 ) TERRY J. MORGAN SR., ) Honorable John J. O’Gara and ) Honorable Stephen P. McGlynn, Defendant-Appellant. ) Judges, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Cates and Vaughan concurred in the judgment. ORDER ¶ 1 Held: Because we conclude that, for the reasons explained herein, postconviction

counsel in this case did not provide the defendant with a reasonable level of assistance at the second stage of proceedings, we affirm in part and vacate in part the circuit court of St. Clair County’s October 31, 2018, second-stage order, and remand for further second-stage proceedings with new counsel. We affirm the trial court’s unchallenged March 10, 2020, order, which followed a third-stage evidentiary hearing on some of the defendant’s postconviction claims.

¶ 2 The defendant, Terry J. Morgan Sr., appeals the order of the circuit court of St. Clair

County that dismissed, at the second stage of proceedings, the majority of his amended petition

for postconviction relief. He does not contest the circuit court’s subsequent order that denied,

following a third-stage evidentiary hearing, the remainder of his petition. For the following

NOTICE

This order was filed under

Supreme Court Rule 23 and is

not precedent except in the

limited circumstances allowed

under Rule 23(e)(1).

NOTICE Decision filed 12/02/21. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

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reasons, we affirm in part, vacate in part, and remand for further second-stage proceedings with

new counsel.

¶ 3 I. BACKGROUND

¶ 4 The defendant was charged by indictment with first degree murder for the death of his

neighbor, Rolandus Carter, following a physical altercation between the two men. The matter

proceeded to trial by jury on January 7, 2013. After the close of evidence and the instruction

conference, defense counsel asked for time to confer with the defendant. Thereafter, the defendant

pleaded guilty, the jury was discharged, and a sentencing hearing was scheduled. On March 4,

2013, the defendant was sentenced to 29 years in the Illinois Department of Corrections.

¶ 5 On April 7, 2014, the defendant filed a verified petition for postconviction relief pursuant

to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) alleging that he had

been denied his constitutional right to the effective assistance of counsel. Included in his numerous

claims of ineffective assistance of counsel was an allegation that he had asked counsel to file a

motion to withdraw his guilty plea and that counsel refused to do so. On April 11, 2014, the trial

court summarily dismissed the defendant’s postconviction petition. The defendant’s motion to

reconsider was denied, and he appealed. On appeal, the State conceded that summary dismissal

was improper, and because we agreed, we reversed the summary dismissal and remanded for

second-stage proceedings. People v. Morgan, No. 5-14-0247 (2017) (unpublished summary order

under Illinois Supreme Court Rule 23(c)).

¶ 6 On remand, postconviction counsel was appointed to assist the defendant. On August 7,

2017, the trial court granted postconviction counsel leave to file an amended petition. On October

31, 2017, postconviction counsel filed the amended petition and accompanying exhibits. In the

petition, postconviction counsel claimed that the defendant (1) “was denied due process and equal

protection” under the federal and state constitutions because the judge who oversaw his trial and

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subsequent sentencing, Michael N. Cook, was involved in criminal activity at the time of the

defendant’s trial and sentencing, a fact of which the defendant was not apprised at the time, despite

the State’s knowledge of it, which constituted a Brady1 violation on the part of the State, and

(2) received ineffective assistance of counsel because the defendant’s trial/plea counsel “coerced”

the defendant into pleading guilty, failed to inform the defendant of a previous plea offer from the

State of 20 years’ imprisonment, was unprepared for trial in that he was not aware that there had

been a grand jury indictment in this case, mishandled the questioning, prior to trial and at trial, of

State’s witness Frederick D. Wooten (who was the brother of the victim in this case) to such an

extent that the defendant was left with no support for “either second degree murder or self-defense”

as strategies at trial, failed to pursue a self-defense strategy on the basis of other facts presented by

the defendant to trial/plea counsel, and refused, two days after the defendant pleaded guilty, to file

a motion to withdraw the defendant’s guilty plea, telling the defendant that it was too late to do so.

Also within the amended petition, with regard to the allegations involving Judge Cook’s criminal

activities, the defendant asserted that (1) “[t]he ongoing federal investigation, as well as Judge

Cook’s ongoing drug use, so infected the proceedings, including the plea and the sentencing, that

the [defendant] could not possibly be given his constitutionally granted right to a fair trial,” and

(2) had he “known about the investigation or *** been given information that would have led him

to believe that Judge Cook was under federal investigation or was otherwise addicted to heroin or

controlled substances, he would have requested that Judge Cook be substituted for cause.”

¶ 7 On August 14, 2018, the State filed a motion to dismiss the amended petition, in which the

State maintained, inter alia, that the defendant’s contentions in the amended petition amounted to

1Brady v. Maryland, 373 U.S. 83 (1963), which holds, inter alia, that a due process violation occurs

if the State withholds evidence from a defendant that is favorable to the defendant and is material to guilt or sentencing.

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mere “conclusory statements,” rather than the specific, supported factual allegations necessary to

move forward, and that, with regard to the allegations of ineffective assistance of trial/plea counsel,

the defendant suffered no prejudice as a result of the alleged deficiencies. A hearing on the motion

was held on October 31, 2018, before the Honorable Stephen P. McGlynn. The State presented

argument consistent with its motion to dismiss. Postconviction counsel, on the other hand, argued

that the defendant’s “position all along was this was self-defense,” and that it was only when Judge

Cook denied the defense’s request for a jury instruction on second degree murder that the

defendant agreed to plead guilty. With regard to the allegations involving Judge Cook’s criminal

activities and the federal investigation thereof, he argued that the defendant’s “due process rights

were violated because the State didn’t tell him about this federal investigation.” He cited “Brady

v. Maryland” and other cases and reiterated his contention that “the State had *** a duty” to inform

the defendant of the investigation. He thereafter presented argument with regard to a number of

the ineffective assistance of counsel allegations in the amended petition, but, with regard to the

remaining such allegations, stated that he would allow thoses allegations to “speak for

themselves.”

¶ 8 Following the arguments of the parties, Judge McGlynn ruled that, with respect to the

claims involving Judge Cook’s criminal activities, he did not believe “there could be a per se rule

that if you were aware that a judge is *** under investigation, a confidential investigation, that you

have a duty to alert a defendant about that investigation.” He added, “There may be a duty on the

[State’s] part if it notices evidence of impairment of a judge during the conduct of the trial to take

some affirmative steps with respect to that.” However, he added that in this case, “the transcript

does not *** show anything that suggests that if Judge Cook was under the influence, it was

adversely affecting his decisions or the way he conducted the trial.” He further stated that he could

not “assume that a defendant in a criminal case would automatically reject a judge if he’s told ***

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that judge might party with heroin or cocaine. Maybe, the defendant would think *** that judge

might be more lenient towards me, or *** may impose lesser sentences.”

¶ 9 He then stated, “I do think you’re entitled to an evidentiary hearing on the discussions with

respect to when you were *** alerted as to an offer of twenty years and whether your plea at the

time was coerced.” Judge McGlynn thereafter paused his ruling to ask two additional questions.

First, he asked if “a self-defense argument was advanced at trial?” Counsel for the State answered

that he believed a self-defense argument was attempted, but that “Judge Cook ruled that the six

factor test for self-defense had not been met and rejected the defense’s request.” Postconviction

counsel did not interject to clarify that self-defense was never offered, and that it was a second

degree murder instruction that Judge Cook denied. Second, Judge McGlynn asked if the defendant

testified at trial. Instead of answering, postconviction counsel asked the defendant, “Did you

testify?” The defendant answered, “No.” Judge McGlynn then reiterated his ruling with regard to

the evidentiary hearing. Also on October 31, 2018, Judge McGlynn entered a written order that

reflected his oral ruling, granting the State’s motion to dismiss as to all issues other than the issue

of when the defendant learned of the 20-year plea offer and whether, therefore, his plea was

“coerced” as a result of that issue.

¶ 10 Following a number of delays, on January 14, 2020, the evidentiary hearing was held

before the Honorable John J. O’Gara. The defendant testified that prior to his trial, he and his trial

counsel agreed to a strategy of “second degree murder” in defense of the first degree murder charge

faced by the defendant. The defendant testified that “[o]nce the second degree proposal was

denied” by Judge Cook, the defendant and his counsel met privately, during a recess, and counsel

told the defendant that if the trial continued, the defendant would “get sixty years.” The defendant

testified that ultimately he asked counsel what counsel would do if he were in that situation, and

that counsel advised him to accept the State’s offer of a sentencing cap of 40 years. He testified

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that he did not want to accept the offer, and wanted to continue with his trial, because he “believed

that this was the jury for [him] and they would see that it was not premeditated, this was second

degree.” He testified that when Judge Cook thereafter asked the defendant if the defendant had

been “coerced” into taking the plea, he answered no, because he “didn’t know what coerced

means.” He testified that even though he did not want to accept the plea, he told Judge Cook that

he did want to accept it, because trial/plea counsel had told him to tell Judge Cook that he wanted

to accept the plea. He also testified that he was never told by trial/plea counsel, prior to trial, that

the State had offered him a 20-year plea deal, although he was told by different previous counsel—

who did not represent him at trial—that he “could cop out to 20 years.” He testified that neither

counsel told him there was an offer from the State. He testified that if he had known, before the

trial, that there was a 20-year offer from the State, he would have taken it. He testified that

immediately after pleading guilty, he “[d]idn’t know what to do,” but that “[t]hree days after [he]

accepted the plea,” he asked counsel to file a motion to withdraw his plea. The defendant testified

that counsel told the defendant that he “couldn’t because it was too late.” He testified that he

believed he had good grounds to withdraw his plea, because he “wanted to go through with” his

trial, and that he did not understand what he was doing when he entered the plea. He testified that

he did not know how to file his own motion to withdraw his plea. On cross-examination, the

defendant agreed that he never told Judge Cook that he was being coerced, or that he did not

understand what he was doing when he accepted the plea offer. He further agreed that, at that point,

he knew the jury was not going to be instructed as to second degree murder, and that, therefore,

“it was first degree murder or not guilty, there was no in between.”

¶ 11 The other witness who testified at the defendant’s evidentiary hearing was the defendant’s

trial/plea counsel. He testified that in preparation for trial, he met “numerous” times with the

defendant and talked with the defendant’s family about the case. He testified that he also talked to

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the victim’s brother, who “would not provide” a written statement but who “did provide answers

to questions in regards to the—what happened.” He testified that he made “numerous” attempts to

secure a plea agreement with the State “looking at potentially eight or ten years,” but that never

happened. He testified that he “explained to [the defendant] and his family that we would not most

likely be able to present a self-defense because of the fact that there was—he had possession of

the weapon, the other—the victim had not, and the numerous stab wounds and their locations.” He

added, “I did talk to them and I tried to look at getting a second degree charge, wherein you could

attempt to use self-defense as a defense, or at least he believing that it was in self-defense. In fact,

we carried that all the way through the trial.” He testified that the weekend prior to the trial, the

State offered a 20-year plea deal, which he conveyed to the defendant. He testified that the

defendant stated that he wanted to go to trial. He testified that the defendant “said that if it didn’t—

the trial didn’t go right, then he would look at trying to take their deal. And I cautioned him that

most likely once we began the trial, the [State] would not go any longer with the twenty years

recommendation.” He testified that he also told the defendant’s wife of the 20-year deal, and the

defendant’s refusal to take it, and that she agreed to talk to the defendant about the matter.

¶ 12 Counsel testified that the defendant looked “shocked and surprised” when Judge Cook

denied their request for a second degree murder instruction. He testified that during the recess that

followed, he “explained to him that there would be no second degree instruction given, that the

issue now was strictly first degree murder with looking at twenty to sixty years. We talked about

it for several minutes, and then [the defendant] asked about going back to the [State] and trying to

get a recommendation for 20 years.” He testified that he approached the State, “and they would

not do the 20 years” but “would be willing to make a recommendation with a cap of 40 and we

would be allowed to plead for 20.” He testified that he explained this to the defendant, who “agreed

to do that.” When asked about the defendant’s idea of seeing how the trial went, then trying to take

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the 20-year deal if it went badly, he testified that he “explained to him very strongly that the State

was not going to do that, that they had said that that offer was only good up till the day of trial.”

¶ 13 When asked about the decision to ask for a recess to talk to the defendant, counsel testified

again as to how shocked the defendant looked when Judge Cook denied his reqest for a second

degree murder instruction, and added that he believed he needed to speak privately with the

defendant because “our whole basis was not self-defense where he would be found not guilty, but

our whole basis was, hopefully, being able to get a conviction for second degree, which would

have had a much lighter sentence than first degree.” He testified that thereafter he explained “that

we could still ask for the 20, which is what the State had said they would be willing to give to

begin with, but that they would not seek more than 40 years. And after some more thought on it,”

the defendant “agreed to take the offer.” He testified that at no point in his representation of the

defendant did he believe that the defendant did not know what was going on, or did not understand

their trial strategy. He testified that the defendant asked him why Judge Cook denied their request

for a second degree murder instruction, and that he told the defendant that he thought Judge Cook

believed “that the evidence showed that [the defendant] could have backed away without the use

of a—of the weapon, and there was no evidence that the victim at any time had—had had the

weapon as opposed to” the defendant.

¶ 14 With regard to the plea negotiations, counsel testified that the defendant “would always

push me to get a much lower sentence, *** he felt that the sentence of 20 years was too long and

outrageous and *** he wanted a much lower sentence.” He testified that “about three days after

the plea” agreement was entered into, the defendant sent him a letter stating that the defendant was

satisfied with counsel’s representation but wanted “to withdraw his plea and get the same jury back

and try the case with the same jury, which again I—I felt that there was no basis, and none was

offered to me, of what I could think of as a valid basis for withdrawing a plea that he knowingly

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gave, and I did not feel it was proper to file any kind of a frivolous motion.” He further testified

that he never told the defendant that the defendant would be sentenced to 60 years in prison, only

that the sentencing range was between 20 and 60 years.

¶ 15 After counsel testified, the parties presented their arguments. At the conclusion of the

arguments, Judge O’Gara asked a number of clarifying questions. He noted that with regard to

“the question of getting a second degree instruction, *** we all know that you’re entitled to an

instruction with any evidence however slight, allows you to get an instruction on second degree

murder.” He then asked, “And even if that—even with that low burden, it failed, at least in Judge

Cook’s eyes, to justify the giving up the instruction for second degree murder. Right?” Neither

party responded. At the conclusion of the hearing, Judge O’Gara took the matter under advisement.

¶ 16 On March 10, 2020, Judge O’Gara entered a written order in which he denied the

defendant’s amended petition and explained his reasons therefor. He found, inter alia, that

trial/plea counsel’s testimony was “far more credible” than the testimony of the defendant, and

that the defendant had not shown that he was “coerced” into pleading guilty, or that he was not

told of the 20-year plea offer prior to trial. He also found that the defendant had suffered no

prejudice as a result of counsel’s failure to file a motion to withdraw the defendant’s guilty plea.

This timely appeal followed. Additional facts will be provided below, as necessary to understand

the defendant’s contentions on appeal.

¶ 17 II. ANALYSIS

¶ 18 On appeal, the defendant raises two claims of error with regard to the second-stage

proceedings on remand from our previous order in this case. First, the defendant contends that new

second-stage proceedings are required in this case because the defendant’s “appointed counsel

failed to comply with [Illinois] Supreme Court Rule 651(c) and rendered unreasonable

representation.” In the alternative, the defendant contends that if this court finds that appointed

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postconviction counsel did provide reasonable representation at the second-stage proceedings that

took place in this case, we also should find that at those proceedings the defendant made a

substantial showing of a constitutional violation that warranted a third-stage evidentiary hearing.

In particular, he contends that a third-stage evidentiary hearing is required with regard to his

trial/plea “counsel’s lack of diligent preparation and [counsel’s] deficient representation.” The

defendant does not contest Judge O’Gara’s March 10, 2020, rulings with regard to the issues upon

which a third-stage evidentiary hearing already has been held.

¶ 19 We begin our analysis by setting forth some of the general principles of law that are

relevant to the defendant’s first claim of error. At the first stage of postconviction proceedings, the

circuit court reviews the petition independently and determines whether the petition is frivolous or

patently without merit. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. If the petition clears

that hurdle, it advances to the second stage, at which point the defendant has the right to counsel.

Id. Counsel may file an amended petition, and the State may file a motion to dismiss or an answer.

Id. At this stage, the defendant bears the burden of making a substantial showing of a constitutional

violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). To do so, the allegations in the petition

must be supported by the record in the case or by affidavits that accompany the petition. Id.

Nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to

require a third-stage evidentiary hearing. Id. However, if the petition’s allegations are based upon

matters of record, no extrinsic evidence may be required. Id. At the second stage, all well-pleaded

facts that are not positively rebutted by the record must be taken as true for purposes of the State’s

motion to dismiss. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). As a result, at a second-stage

hearing on a motion to dismiss, the trial court is foreclosed from engaging in any fact finding.

People v. Begay, 2018 IL App (1st) 150446, ¶ 32. If the petition makes a substantial showing of a

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constitutional violation, it will be advanced to the third stage, which ordinarily involves a fact-

finding evidentiary hearing on the defendant’s claims. Wallace, 2018 IL App (5th) 140385, ¶ 27.

¶ 20 The source of the defendant’s right to counsel at the second stage of proceedings is

statutory rather than constitutional, and as a result, the level of assistance guaranteed is not the

same as the level of assistance constitutionally mandated at trial or on direct appeal; instead, the

level of assistance required is reasonable assistance. Id. ¶ 29. To provide reasonable assistance,

postconviction counsel is required to perform the three duties set forth in Illinois Supreme Court

Rule 651(c) (eff. July 1, 2017). Id. ¶ 30. Counsel must (1) consult with the defendant to determine

the claims the defendant wants to raise, (2) examine the appropriate portions of the record, and

(3) make any amendments to the petition that are necessary in order to adequately present the

defendant’s claims to the circuit court. Id. Counsel is not required to file an amended petition in

every case—only in those in which amendments are necessary to adequately present the

defendant’s claims. Id. Counsel may choose to stand on the defendant’s unamended petition if it

adequately presents the defendant’s claims. Id. Moreover, counsel is under no obligation to amend

a petition to advance claims that lack merit. Id.

¶ 21 The filing, by postconviction counsel, of a certificate of compliance with Rule 651(c)

creates a rebuttable presumption that counsel has provided the statutorily-required reasonable level

of assistance. Id. ¶ 31. We review de novo the question of whether counsel provided the reasonable

level of assistance required. Id. If we determine that postconviction counsel failed to provide

reasonable assistance, we will remand for further proceedings on the petition, with new counsel to

be appointed to represent the defendant on remand. Id. ¶ 53. If new counsel investigates the claims

raised by the defendant and concludes that they are frivolous and patently without merit, despite

the circuit court’s initial finding to the contrary, new counsel must file a motion to withdraw that

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comports with the requirements spelled out by the Illinois Supreme Court in People v. Kuehner,

2015 IL 117695. Id.

¶ 22 As we undertake our de novo review of whether postconviction counsel provided

reasonable assistance, we are mindful of the fact that substantial compliance with Rule 651(c) is

sufficient. See, e.g., People v. Profit, 2012 IL App (1st) 101307, ¶ 18. We also are mindful of the

fact that the presumption of reasonable assistance that arises with the filing of a Rule 651(c)

certificate may be rebutted by the record. People v. Russell, 2016 IL App (3d) 140386, ¶ 10. The

failure to make a routine amendment, such as an amendment adding a claim of ineffective

assistance of appellate counsel in order to prevent the dismissal of a petition on the basis of waiver,

is an example of conduct on the part of postconviction counsel that rebuts the presumption of

reasonable assistance. Id. ¶ 11. Moreover, there is no requirement that a defendant make a positive

showing that counsel’s failure to comply with Rule 651(c) caused prejudice, because if

postconviction counsel failed to fulfill the duties of Rule 651(c), remand is required, regardless of

whether the claims raised by the defendant in the petition had merit. Id. ¶ 12. Likewise, counsel’s

failure to comply with the rule will not be excused on the basis of harmless error, because a

reviewing court will not engage in speculation as to whether the circuit court would have dismissed

the petition at the second stage had counsel complied with the rule. Id.

¶ 23 As we consider whether postconviction counsel provided reasonable assistance, we also

are mindful of the fact that the purpose of Rule 651(c) is to ensure that postconviction counsel

shapes the defendant’s pro se claims into appropriate legal form and thereafter presents those

claims to the circuit court. People v. Jones, 2016 IL App (3d) 140094, ¶ 28. To effectuate that

purpose, Rule 651(c) requires a showing that postconviction counsel took whatever steps were

necessary to secure the adequate representation of the defendant’s claims. Id. We are guided by

the proposition that if postconviction counsel does not adequately complete the duties mandated

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by Rule 651(c), the statutory right to reasonable assistance cannot be fully realized. Id. With regard

to the duty to amend, the failure to provide reasonable assistance as to this duty may, under certain

circumstances, rise to the level of an impermissible “total failure of representation” that amounts

to postconviction counsel representing a defendant “in name only.” People v. Turner, 187 Ill. 2d

406, 415 (1999). With regard to harmless error, in Turner, the Illinois Supreme Court reiterated

that if a reviewing court determines that “counsel essentially did nothing to shape the [pro se]

claims into the appropriate legal form,” the defendant “must be given an opportunity to replead

[the defendant’s] postconviction petition with the benefit of reasonable assistance of counsel.” Id.

at 416-17. To not afford the defendant this opportunity on remand with new counsel is essentially

to “render the appointment of counsel in post-conviction proceedings nothing but ‘an empty

formality.’ ” Id. at 417 (quoting People v. Garrison, 43 Ill. 2d 121, 123 (1969)).

¶ 24 As we turn to this case, we are mindful as well of the holding of our colleagues in the First

District, in People v. Profit, 2012 IL App (1st) 101307, ¶¶ 19, 29-30, that one of the ways by which

a defendant may meet the defendant’s burden to rebut the presumption created by the filing of a

Rule 651(c) certificate—and therefore may show that the defendant did not receive reasonable

assistance of counsel because counsel failed to substantially comply with the rule, by failing to

make necessary amendments to the pro se petition—is to identify the amendments that should

have been made to the petition by counsel, but were not made. However, we do not believe that

Profit stands for the proposition that this is the only way by which a defendant may rebut the

aforementioned presumption. See, e.g., People v. Kirk, 2012 IL App (1st) 101606, ¶¶ 33-36 (noting

that Profit was factually distinguishable, and did not preclude a finding for other reasons—

including on the basis of postconviction counsel’s on-the-record conduct—that the defendant had

met his burden to rebut the presumption of compliance with Rule 651(c)).

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¶ 25 For the following reasons, we agree with the defendant that he did not receive reasonable

assistance of postconviction counsel in this case, and that, accordingly, further second-stage

proceedings with new counsel are required. The defendant contends that postconviction counsel’s

performance was unreasonable because counsel (1) “failed to supply available evidentiary support

for [the defendant’s] claims regarding former Judge Cook,” (2) “failed to cite the proper legal basis

for this same claim,” and (3) acted in a manner, on the record, that rebuts his certification that he

examined the trial record. We begin with the latter contention. The defendant seeks support for

this contention from the fact that counsel failed to sign the amended petition, and from the fact that

at the hearing on the State’s motion to dismiss, (1) counsel asked the defendant whether the

defendant testified at trial, rather than answering the question himself, and (2) when counsel for

the State asserted that he believed a self-defense argument was attempted at trial, but that Judge

Cook did not allow it, postconviction counsel did not interject to clarify that self-defense was never

offered, and that it was a second degree murder instruction that Judge Cook denied.

¶ 26 We agree with the State that the first two errors complained of with regard to this

contention—failure to sign the amended petition, and asking the defendant whether the defendant

testified at trial—are not the type of errors that can, without much more, sustain a claim of

unreasonable assistance of postconviction counsel. Although we do not condone the failure of an

attorney to sign a pleading, we believe that such an oversight can happen even in the midst of

otherwise excellent representation. Likewise, we do not believe that the fact that postconviction

counsel asked the defendant whether the defendant testified at trial necessarily shows that counsel

did not have an adequate command of the facts in this case; it is equally possible that counsel was

momentarily confused or unsure, and wanted to confirm the fact with the defendant before

presenting it, as true, to Judge McGlynn.

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¶ 27 However, we cannot agree with the State that equally innocuous is the fact that when

counsel for the State asserted that he believed a self-defense argument was attempted at trial, but

that “Judge Cook ruled that the six factor test for self-defense had not been met and rejected the

defense’s request,” postconviction counsel did not interject to clarify that self-defense was never

offered, and that it was a second degree murder instruction that Judge Cook denied. Postconviction

counsel’s silence on this matter epitomizes his failure, during the second stage of proceedings, to

provide reasonable assistance to the defendant by shaping the defendant’s allegations into

appropriate legal form in an effort to ensure that Judge McGlynn understood the nexus between

the various allegations in the amended petition and how trial/plea counsel’s inadequacies, as

alleged in the amended petition, led the defendant directly into what he termed a “coerced” plea

agreement. On appeal, the State attempts to minimize postconviction counsel’s silence by arguing

that it is clear from the record that postconviction counsel knew that self-defense was never

offered, and that it was a second degree murder instruction that Judge Cook denied. This is true,

but it misses the point: what was vital was not what postconviction counsel knew about the case,

but what he presented to Judge McGlynn about the case, so that Judge McGlynn could make an

informed decision with regard to which claims should advance to a third-stage evidentiary hearing.

¶ 28 The extent and ramifications of postconviction counsel’s failure to provide reasonable

assistance because he failed to shape the defendant’s allegations into appropriate legal form, and

failed to vigorously assert the merits of the amended petition to Judge McGlynn at the hearing on

the State’s motion to dismiss and thereafter, are apparent when one examines the defendant’s

contention, in this appeal, that an evidentiary hearing was required on the defendant’s claim that

his trial/plea counsel mishandled the questioning, prior to trial and at trial, of State’s witness

Frederick D. Wooten (who was the brother of the victim in this case) to such an extent that the

defendant was left with no support for “either second degree murder or self-defense” as strategies

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at trial. As explained in detail below, this allegation was vital to showing the nexus between all of

the allegations in the amended petition and to supporting the argument that counsel’s failure led

directly to what is alleged to be an involuntary, “coerced” guilty plea. Also as explained below,

postconviction counsel never argued this point to Judge McGlynn at all, and did not present it

adequately in the amended petition.

¶ 29 In paragraph 11 of the amended petition, postconviction counsel alleged the following:

“During the trial, trial counsel cross-examined [the State’s] witness Frederick D. Wooten,

brother of the alleged victim, Rolandus Carter. During cross-examination, trial counsel

attempted to impeach Mr. Wooten by getting him to admit that during a meeting with trial

counsel at Mr. Wooten’s house, Mr. Wooten admitted to trial counsel that just prior to the

alleged incident, Rolandus Carter took his shirt off and he went out the back door. [At

trial,] Mr. Wooten refused to admit this. Because trial counsel failed to bring with him a

witness to the meeting with Mr. Wooten, and there was nobody to testify about Mr.

Wooten’s statement to trial counsel, the court sustained the [S]tate’s objection to allowing

trial counsel to impeach Mr. Wooten with this line of questioning.”

In the same paragraph of the amended petition, postconviction counsel further alleged the

following:

“Had this evidence been admitted, it would have shown that Mr. Carter was the aggressor

and would have supported a finding of either second degree murder or self-defense. Trial

counsel’s failure to bring a witness with him to the meeting with Mr. Wooten, or to

otherwise record the conversation was ineffective and but for said actions, the outcome of

the [defendant’s] proceedings would have been different.”

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In paragraph 13 of the amended petition, postconviction counsel alleged that “[b]ecause of the

ineffectiveness of trial counsel as described above, [the defendant] had no confidence in his trial

counsel and believed he had no other choice but to plead guilty.”

¶ 30 On appeal, the defendant points out that trial/plea counsel’s failures with regard to Wooten

are significant because, in his opening statement at trial, counsel asked the jury (and Judge Cook,

to the extent that Judge Cook would later be asked to rule on the defendant’s request for a second

degree murder instruction) to consider, with regard to the altercation between the defendant and

the victim that led to the victim’s death, “But what happened? What provoked the fight? What

provoked what did happen? You’re going to hear witnesses and you’re going to hear a little bit

different—[the defendant] did not just on a whim go out and stab Mr. Carter.” Counsel thereafter

stated, “And you’re going to hear testimony from Mr. Wooten, Mr. Carter’s brother, that they had

gone to the store and actually had come back and that Mr. Carter presumed to take off his shirt and

go out the back door of his house to the back yard of [the defendant] and was raising a ruckus,

demanding that he come out and fight and provoking him.” Later in his opening statement, counsel

asserted, “This is what you’re going to be asked to look at and to decide whether or not there was

sufficient provocation for what happened, provocation committed by Mr. Carter.” Still later in the

opening statement, he reiterated, “Was there this provocation that resulted in this? And that’s what

we ask you to look for and to keep an open mind about.”

¶ 31 However, as the defendant notes on appeal, Wooten did not give the promised testimony

at trial, but instead “directly contradicted counsel’s assertions,” when Wooten acknowledged that

he had spoken to trial/plea counsel prior to trial, but “asserted that he did not tell counsel that

Carter took off his shirt and went out the back door.” The defendant reiterates that “because

counsel had no witnesses present during the interview and no recorded or written statement, [Judge

Cook] sustained the State’s objection to his continued attempt to impeach Wooten.” The defendant

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contends that “[c]ounsel’s first unreasonable error was interviewing Wooten alone, without an

investigator or other potential witness, and not taking appropriate steps to record or document the

interview,” because, according to the defendant, “[p]rofessional standards dictate that counsel

bring a third party to such an interview.” The defendant contends that “counsel then compounded

the error by crafting a defense—and announcing it to the jury in opening statements—that

depended on Wooten testifying consistently with his out-of-court statements to counsel.” As the

defendant points out, “Wooten was the brother of the deceased and testified for the State,” which

means that “[c]ounsel had no reason to presume that Wooten’s testimony would be helpful to the

defense or consistent with his private and undocumented comments to counsel.” The defendant

further contends that “[c]ounsel’s conduct also suggests that he did not understand either that he

would be unable to impeach Wooten or that he could not argue that impeachment as substantive

evidence.” The defendant cites legal authority in support of his position that trial/plea counsel was

ineffective due to his handling of Wooten.

¶ 32 The State responds to the handling of Wooten by arguing on appeal that trial/plea counsel

would “not expect the victim’s brother to say anything helpful about the man who murdered his

brother or derogatory about his brother’s final minutes,” and that therefore counsel “could not

reasonably anticipate the need for corroboration.” The State adds that “[i]n any case, the only thing

defense counsel wanted to bring out was that Mr. Carter took off his shirt and went outside,” and

posits that this testimony and other testimony about provocation was provided by the defendant’s

wife, and thus would have been cumulative. The State’s argument, however, does not at all address

how counsel’s mishandling of Wooten directly led to counsel’s failure to deliver the testimony he

promised to the jury, and to Judge Cook, in his opening statement, which was testimony from the

victim’s own brother, not the defendant’s wife, that supported the defendant’s theory of second

degree murder due to provocation by the victim.

19

¶ 33 At the trial, in January 2013, the State objected to the defendant’s proposed jury instruction

on second degree murder. The State supported its objection with two cases, People v. Lauderdale,

2012 IL App (1st) 100939, and People v. Ingram, 409 Ill. App. 3d 1 (2011). Judge Cook stated

that he had reviewed the two cases. Significantly, Lauderdale—the case argued the most heavily

by the State to Judge Cook, and the case upon which Judge Cook appears to have based his ruling

that “the defendant’s conduct was out of all proportion to the provocation, if any, which the victim

brought onto the defendant, that stabbing the defendant—or stabbing the victim six times was out

of all proportion to a fist fight”—involved the question, within the context of an ineffective

assistance of counsel claim, of a possible “serious provocation” defense as a mitigating factor to

be considered in sentencing on an attempted murder conviction (2012 IL App (1st) 100939, ¶¶ 20-

34), not the question, at issue before Judge Cook, of the threshold amount of evidence required for

a jury to be instructed on second degree murder due to provocation. In fact, the Lauderdale court

never discussed or analyzed the specific question of when a second degree murder jury instruction

is required to be given, as the case involved a bench trial. Id. ¶¶ 3, 17, 20-34. However, Ingram

did involve jury instructions, and the Ingram court correctly noted the general rule that a defendant

is entitled to have a jury instructed on any legally recognized defense theory having some basis in

the evidence, such as second degree murder defenses involving serious provocation or an

unreasonable belief in self-defense. 409 Ill. App. 3d at 19-21. It appears, therefore, that Judge

Cook relied upon the standard cited in Ingram for his ruling “that the factors for mutual combat,

there’s not been evidence to show that those are present.”

¶ 34 Thus, for postconviction counsel to have provided reasonable assistance by ensuring that

the defendant’s allegations in the amended petition were in appropriate legal form—indeed, for

the ineffective assistance of counsel claim related to the handling of Wooten to have had any legal

viability at all, and therefore for its inclusion in the amended petition to be anything more than “an

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empty formality” (Turner, 187 Ill. 2d at 417)—postconviction counsel was required to allege and

argue, inter alia, that, with regard to the prejudice the defendant suffered as a result of trial/plea

counsel’s ineffectiveness, counsel’s failure to deliver the promised testimony from Wooten—that,

inter alia, the victim “was raising a ruckus, demanding that [the defendant] come out and fight and

provoking him” (emphasis added)—led directly to counsel’s inability to convince Judge Cook that

there was, as required by Ingram, at least some basis in the evidence to support a second degree

murder instruction based upon provocation, which in turn led directly to the defendant’s entire trial

strategy being foreclosed and the defendant believing that he had no option but to abandon the trial

and plead guilty.

¶ 35 However, at the hearing on the State’s motion to dismiss, postconviction counsel did not

make any argument with regard to the Wooten issue at all. It was among the issues that

postconviction counsel stated would “speak for themselves.” The problem, however, is that the

Wooten allegations could not “speak for themselves” on the basis of only what was included in

the amended petition, because the petition does not mention trial/plea counsel’s opening statement

promises to the jury and to Judge Cook, does not tie them or anything else at trial to counsel’s

mishandling of Wooten and Judge Cook’s subsequent denial of the request for a second degree

murder instruction, and does not tie that denial to the collapse of his defense strategy and his

subsequent belief that he had no option but to abandon the trial and plead guilty. Indeed, the latter

point is referenced in the amended petition only in postconviction counsel’s rather general

statement in paragraph 13 that “[b]ecause of the ineffectiveness of trial counsel as described above,

[the defendant] had no confidence in his trial counsel and believed he had no other choice but to

plead guilty.”

¶ 36 Accordingly, although postconviction counsel included the Wooten claim in the amended

petition, he did not present it to Judge McGlynn, orally or in writing, in a manner that reasonably

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could be said to be in appropriate legal form. Just as Judge Cook was left to rule on the defendant’s

request for a second degree murder instruction without the benefit of the testimony that trial/plea

counsel promised in his opening statement that Wooten would deliver, Judge McGlynn was left to

rule on postconviction counsel’s ineffective assistance of counsel claim related to counsel’s

handling of Wooten without any coherent context for understanding the significance of that claim

to the defendant’s overall “coercion” argument. Not surprisingly, Judge McGlynn did not

specifically discuss the Wooten allegations, at the hearing or in his subsequent written order, at

all.

¶ 37 Postconviction counsel failed to provide reasonable assistance in other ways as well. With

regard to the defendant’s claims related to Judge Cook’s illegal activities, at the hearing on the

State’s motion to dismiss, Judge McGlynn articulated three bases for rejecting these claims, stating

that (1) he did not believe “there could be a per se rule that if you were aware that a judge is ***

under investigation, a confidential investigation, that you have a duty to alert a defendant about

that investigation,” although “[t]here may be a duty on the [State’s] part if it notices evidence of

impairment of a judge during the conduct of the trial to take some affirmative steps with respect

to that”; (2) in this case, “the transcript does not *** show anything that suggests that if Judge

Cook was under the influence, it was adversely affecting his decisions or the way he conducted

the trial”; and (3) Judge McGlynn could not “assume that a defendant in a criminal case would

automatically reject a judge if he’s told *** that judge might party with heroin or cocaine,” because

“[m]aybe, the defendant would think *** that judge might be more lenient towards me, or ***

may impose lesser sentences.”

¶ 38 As to the final of these three bases, postconviction counsel did not, at the hearing or

thereafter, argue to Judge McGlynn that, as described above, within the amended petition, with

regard to the allegations involving Judge Cook, the defendant asserted that had he “known about

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the investigation or *** been given information that would have led him to believe that Judge

Cook was under federal investigation or was otherwise addicted to heroin or controlled substances,

he would have requested that Judge Cook be substituted for cause.” Postconviction counsel failed

to further argue that accordingly there was no reason for Judge McGlynn to make any kind of

assumption in this case, and that, to the contrary, Judge McGlynn was required, at the second stage

of proceedings, to take the defendant’s assertion that he would have asked that Judge Cook be

substituted for cause as true, unless Judge McGlynn found that the assertion was not well-pled or

was positively rebutted by the record (see e.g., Pendleton, 223 Ill. 2d at 473), neither of which

Judge McGlynn found.

¶ 39 As to the second of these three bases—Judge McGlynn’s statement that in this case, “the

transcript does not *** show anything that suggests that if Judge Cook was under the influence, it

was adversely affecting his decisions or the way he conducted the trial”—postconviction counsel

failed to argue, at the hearing or thereafter, that Judge McGlynn’s conclusion was the result of

improper fact-finding at the second stage of proceedings. See, e.g., id.; Begay, 2018 IL App (1st)

150446, ¶ 32 (at a second-stage hearing on a motion to dismiss, the trial court is foreclosed from

engaging in any fact finding). In the amended petition, postconviction counsel alleged that,

inter alia, “[t]he ongoing federal investigation, as well as Judge Cook’s ongoing drug use, so

infected the proceedings, including the plea and the sentencing, that the [defendant] could not

possibly be given his constitutionally granted right to a fair trial.” Judge McGlynn was required,

at the second stage of proceedings, to take this allegation as true unless he found that it was not

well-pled or that it was positively rebutted by the record (see id.), neither of which Judge McGlynn

found.

¶ 40 With regard to this point, postconviction counsel further failed to argue, at the hearing or

thereafter, that even if it were proper to make such a factual determination at the second stage of

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proceedings on the amended petition, Judge McGlynn’s determination did not provide an adequate

basis to dismiss all of the defendant’s claims regarding Judge Cook. Those claims, as alleged in

the amended petition, were that “[t]he ongoing federal investigation, as well as Judge Cook’s

ongoing drug use, so infected the proceedings, including the plea and the sentencing” that the

defendant’s right to fair proceedings was violated (emphases added), whereas Judge McGlynn’s

factual determination referenced only one “transcript,” not multiple transcripts, and referenced

only how Judge Cook’s drug use affected “the way he conducted the trial,” not how the ongoing

federal investigation (presumably meaning Judge Cook’s knowledge, or possible suspicion, of it)

did or did not affect the trial, and not how either affected the sentencing, rather than the trial, of

the defendant.

¶ 41 Finally, the first basis advanced by Judge McGlynn for his rejection of the claims involving

Judge Cook’s illegal activity was that he did not believe “there could be a per se rule that if you

were aware that a judge is *** under investigation, a confidential investigation, that you have a

duty to alert a defendant about that investigation,” although “[t]here may be a duty on the [State’s]

part if it notices evidence of impairment of a judge during the conduct of the trial to take some

affirmative steps with respect to that.” On appeal, the defendant claims that the legal theory

advanced by postconviction counsel in the amended petition encompassed only a claim of a Brady

violation and therefore was flawed and legally insufficient, but that if postconviction counsel had

shaped the defendant’s claim into appropriate legal form, as he was required to do to provide

reasonable assistance of counsel, he would have alleged that Judge Cook’s illegal activity was

“material to the question of [Judge] Cook’s bias and the fairness of [the defendant’s] trial, plea,

and sentencing proceedings.” The State posits on appeal that postconviction counsel’s amended

petition theory did encompass a more broad and general due process claim, such as that suggested

by the defendant on appeal. We do not believe that the record supports the State’s assertion, but

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even assuming, arguendo, that the State is correct about the scope of the theory advanced in the

amended petition, it is undeniable that postconviction counsel failed, at the hearing and thereafter,

to argue a more broad and general due process claim that would have precluded Judge McGlynn

from dismissing the claim on the basis that he did, which was that he did not believe a Brady type

of duty existed in this case. Indeed, postconviction counsel’s specific argument to Judge McGlynn

consisted instead of his assertion that the defendant’s “due process rights were violated because

the State didn’t tell him about this federal investigation.” He cited “Brady v. Maryland” and other

cases and reiterated his contention that “the State had *** a duty” to inform the defendant of the

investigation. He did not present any argument to support a more broad and general due process

claim of the type raised by the defendant’s counsel on appeal.

¶ 42 III. CONCLUSION

¶ 43 In light of the foregoing, as well as other infirmities pointed out by the defendant’s

appellate counsel in various sections of the defendant’s briefs on appeal, we conclude that

postconviction counsel failed to provide reasonable assistance to the defendant in this case.

Accordingly, we grant the defendant the relief he requests on appeal, which is additional second-

stage proceedings with new counsel. We note, however, that because the defendant has not

challenged Judge O’Gara’s March 10, 2020, rulings following the third-stage evidentiary hearing

that has already taken place—and because we are aware of no legitimate grounds upon which the

defendant could challenge Judge O’Gara’s rulings—we limit the second-stage proceedings on

remand to those not adjudicated by Judge O’Gara’s March 10, 2020, order. Accordingly, we affirm

Judge McGlynn’s October 31, 2018, order to the extent that it allowed the third-stage evidentiary

hearing on the matters later adjudicated by Judge O’Gara, and we affirm Judge O’Gara’s March

10, 2020, order. We vacate the remainder of Judge McGlynn’s October 31, 2018, order, and

remand for further second-stage proceedings with new counsel, which includes the opportunity for

25

new counsel to file a second amended petition or other pleadings deemed necessary by counsel

and not inconsistent with Judge O’Gara’s March 10, 2020, ruling.

¶ 44 October 31, 2018, order affirmed in part and vacated in part; cause remanded for further

second-stage proceedings with new counsel; March 10, 2020, order affirmed.