2020 IL App (1st) 180029-U
Ill. App. Ct.2020Background
- Defendant Tyreach Stone was convicted of armed robbery with a firearm and sentenced to 27 years (12-year term + 15-year firearm enhancement). This court affirmed on direct appeal.
- Stone filed a pro se postconviction petition alleging, among other claims, ineffective assistance of trial counsel for failing to investigate and call material witnesses (notably Brenda Green) and to obtain video evidence; he attached two affidavits of his own but not any affidavit from Green.
- The trial court advanced the petition to second-stage and appointed postconviction counsel, who filed a Rule 651(c) certificate stating she consulted with Stone and made no amendments because none were necessary; counsel did not obtain Green’s affidavit or amend the pro se petition.
- The State moved to dismiss, arguing the petition lacked required affidavits from identified witnesses and was otherwise waived or without merit; the trial court granted dismissal.
- On appeal Stone argued postconviction counsel failed to comply with Illinois Supreme Court Rule 651(c) by not attempting to obtain Green’s affidavit or explaining its absence, thereby foreclosing consideration of his ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed postconviction counsel complied with Rule 651(c) by failing to obtain/attach affidavit from witness Brenda Green or explain its absence | Counsel’s Rule 651(c) certificate creates a presumption of compliance; the petition and Stone’s affidavits adequately presented claims | Counsel abdicated duties by standing on an unamended, facially deficient petition and failing to attempt to obtain Green’s affidavit or to amend/explain | Counsel’s failure to attach or explain absence of Green’s affidavit rebutted the presumption of compliance; remand for new counsel and second-stage proceedings |
| Whether an affidavit from the proposed witness is required for an ineffective-assistance claim when that witness is the sole source of exculpatory evidence | An affidavit is not strictly required where other record evidence suffices to assess the claim (per Dupree) | Where the proposed witness is the only source of exculpatory evidence, an affidavit is required to show the testimony exists and would be favorable | Because Green was the sole source of the new evidence, her affidavit (or explanation for its absence) was necessary; absence was fatal to consideration of the claim without counsel’s remediation |
| Whether the defendant’s own affidavits or the existing record made Green’s affidavit unnecessary | The pro se affidavits and record could be used to evaluate the claim and render a witness affidavit unnecessary | Stone’s affidavits do not show whether Green’s testimony existed or would be favorable; only Green’s affidavit could supply that proof | The court followed Dupree/Enis/Thompkins reasoning: defendant’s affidavit alone was insufficient where the proposed witness is the only source of the new evidence |
| Whether the petition could be dismissed on waiver/merits despite counsel’s alleged inadequate representation | State: claims were waived or meritless and dismissible on the record | Stone: inadequate counsel prevented proper presentation and could not allow dismissal for waiver | The court did not reach merits; because of counsel’s Rule 651(c) failure remand was required regardless of asserted waiver or merits |
Key Cases Cited
- People v. Dupree, 2018 IL 122307 (supreme court holding that a witness affidavit is not always required but is necessary where the proposed witness is the sole source of new exculpatory evidence)
- People v. Enis, 194 Ill. 2d 361 (2000) (trial counsel’s failure to investigate/call a witness must be supported by affidavit from the proposed witness)
- People v. Johnson, 154 Ill. 2d 227 (1993) (postconviction counsel has duty to attempt to obtain affidavits from named witnesses to shape claims)
- People v. Suarez, 224 Ill. 2d 37 (2007) (error to dismiss petition where postconviction counsel provided inadequate representation; Rule 651(c) obligations explained)
- People v. Thompkins, 161 Ill. 2d 148 (1994) (defendant’s affidavit insufficient without affidavits from proposed alibi witnesses)
- People v. Perkins, 229 Ill. 2d 34 (2007) (postconviction counsel must attempt to overcome procedural bars to adequately present claims)