People v. Bass
116 N.E.3d 413
Ill. App. Ct.2019Background
- In 2010 Aubrey Bass was arrested after officers saw him discard a bag containing individually wrapped rocks later testing positive for cocaine; he was convicted of possession with intent to deliver and sentenced to 12 years.
- Bass filed a pro se postconviction petition claiming trial counsel was ineffective for failing to file pretrial motions (including to quash/suppress) and for not calling witnesses (Duenes/Duenas and Shines) who would say Bass had permission to be on the premises.
- The trial court advanced the petition to second-stage; the public defender was appointed and investigated, interviewed three witnesses (including the two named), but was unable to obtain affidavits to support the claims.
- Postconviction counsel filed a Rule 651(c) certificate stating he consulted with Bass, reviewed the record, and interviewed identified witnesses; he declined to amend the pro se petition.
- The State moved to dismiss for failure to substantiate claims and lack of merit; the court granted the motion and dismissed the petition. Bass appealed only arguing he received unreasonable assistance of postconviction counsel under Rule 651(c).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Bass) | Held |
|---|---|---|---|
| Whether postconviction counsel provided the "reasonable assistance" required under the Post-Conviction Act and Rule 651(c) | Counsel complied with Rule 651(c): consulted client, reviewed record, investigated witnesses; filed certificate; presumption of reasonable assistance stands | Counsel failed to provide reasonable assistance by not amending the petition or securing affidavits to cure facial defects | Court held counsel provided reasonable assistance; dismissal affirmed |
| Whether counsel’s failure to obtain or attach affidavits required amendment of the petition | The absence of affidavits reflected counsel’s investigation results; not every petition can be cured by amendment | Failure to add affidavits or explain their absence left petition facially deficient and counsel unreasonable | Court held counsel reasonably investigated and could decline to amend when evidence was unavailable |
| Whether counsel was obligated to move to withdraw under People v. Greer when investigation showed claims lacked support | Greer permits withdrawal when, after Rule 651(c) compliance, counsel concludes claims are frivolous; but withdrawal does not entitle petitioner to new appointed counsel | Bass contends counsel should have moved to withdraw so new counsel could be appointed or different procedure followed | Court rejected obligation to withdraw here; withdrawal would not guarantee new counsel and standing on the petition is an acceptable alternative |
| Appropriate remedy if counsel failed Rule 651(c) duties | The State argued no such failure occurred; dismissal proper | Bass sought reversal for ineffective assistance of postconviction counsel and remand | Court affirmed dismissal; Bass failed to rebut presumption of reasonable assistance |
Key Cases Cited
- People v. Greer, 212 Ill. 2d 192 (Ill. 2004) (postconviction counsel may withdraw after Rule 651(c) compliance if petition is frivolous; withdrawal does not assure appointment of successor counsel)
- People v. Lander, 215 Ill. 2d 577 (Ill. 2005) (postconviction petitioners advancing to second stage are entitled to appointed counsel and a reasonable level of assistance)
- People v. Pendleton, 223 Ill. 2d 458 (Ill. 2006) (Rule 651(c) duties require consultation, record review, and, when necessary, amendment of pro se petitions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (established standard for ineffective assistance of counsel; referenced to contrast constitutional vs. statutory reasonable-assistance standards)
- People v. Hardin, 217 Ill. 2d 289 (Ill. 2005) (describing reasonable assistance as legislative grace, a lesser standard than Strickland)
- People v. Hodges, 234 Ill. 2d 1 (Ill. 2009) (first-stage postconviction pleading standard is liberal; borderline cases should proceed)
- People v. Owens, 139 Ill. 2d 351 (Ill. 1990) (discussed reasonable assistance requirement in postconviction context)
- People v. Suarez, 224 Ill. 2d 37 (Ill. 2007) (appellate review is de novo of Rule 651(c) compliance and trial court dismissals)
- People v. Norton, 203 Ill. App. 3d 571 (Ill. App. 1990) (once counsel fulfills Rule 651(c) and determines petition cannot be amended, entitlement to appointed counsel ends)