People v. Malone
74 N.E.3d 24
| Ill. App. Ct. | 2017Background
- William A. Malone was convicted of aggravated criminal sexual assault (natural life sentence), home invasion, aggravated robbery (reduced on direct appeal), and failure to register as a sex offender; sentences for the latter three run concurrent and consecutive to the sexual-assault sentence.
- Malone filed a pro se postconviction petition alleging multiplicity/lesser-included error, juror bias, prosecutorial misconduct, and ineligibility for a natural-life sentence due to prior convictions being sexual abuse rather than sexual assault.
- The trial court appointed postconviction counsel; the State moved to dismiss. Counsel did not amend Malone’s pro se petition or submit affidavits; counsel filed a Rule 651(c) certificate and stood on the pro se petition at the dismissal hearing.
- The court gave Malone an opportunity to present further documentation; Malone spoke at the hearing but did not submit additional materials. The trial court granted the State’s motion to dismiss.
- Malone appealed, arguing postconviction counsel provided unreasonable assistance by failing to amend the petition or withdraw if counsel believed the petition frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postconviction counsel provided reasonable assistance under Rule 651(c) | Counsel complied with Rule 651(c); the certificate creates a presumption of compliance | Counsel was "in name only" — failed to amend petition or withdraw when claims meritless | Counsel provided reasonable assistance; certificate unrebutted, so dismissal affirmed |
| Whether counsel was required to amend the pro se petition | No; counsel not required to amend frivolous claims and may stand on the petition | Counsel should have amended to improve presentation or attach supporting affidavits | Counsel not required to amend absent grounds; defendant offered no showing of available supporting affidavits |
| Whether counsel was required to withdraw if claims were frivolous | Withdrawal is permitted but not compelled when claims are frivolous | Counsel should have withdrawn to allow defendant to proceed pro se or present additional evidence | Withdrawal is discretionary; standing on the petition is an acceptable alternative |
| Whether Shortridge controls (where counsel confessed State's motion) | Distinguishable because counsel there conceded dismissal | Malone relied on Shortridge to show inadequate assistance | Shortridge is distinguishable because counsel here did not confess the motion to dismiss |
Key Cases Cited
- People v. Pace, 386 Ill. App. 3d 1056 (Ill. App. Ct. 2008) (postconviction counsel not required to amend frivolous pro se claims and may stand on petition or withdraw)
- People v. Stovall, 47 Ill. 2d 42 (Ill. 1970) (failure to present affidavits not neglect absent showing that supporting facts exist)
- People v. Vasquez, 356 Ill. App. 3d 420 (Ill. App. Ct. 2005) (counsel not required to conduct a fishing expedition for evidence outside the record)
- People v. Greer, 212 Ill. 2d 192 (Ill. 2004) (Act does not prevent withdrawal of counsel; withdrawal allowed but not mandatory when claims frivolous)