People v. HotwagnerPeople v. Hotwagner
- Reporters:
- , , ,
- Before:
- S. Gene Schwarm, Judy L. Cates, Richard P. Goldenhersh
Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶ 1 I. FACTS
¶ 2 Following a domestic incident that occurred in October 2007, the defendant, John Hotwagner, was charged in Lawrence County case number 07-CF-152, with two counts of aggravated criminal sexual assault (
¶ 3 In March 2008, the defendant appeared pro se at his final pretrial conference and pled guilty to count II in exchange for a 12-year sentence and the State‘s dismissal of counts I and III. When discussing the terms of the plea agreement, then-State‘s Attorney Patrick Hahn advised the trial court that he and the defendant had reached the agreement after talking outside the courtroom. Noting that Cunningham had recently withdrawn, Hahn further advised that he had asked the defendant if he wanted a court-appointed attorney or if he wanted to speak with him and that the defendant had advised that he wanted to speak with him. Hahn did not, however, indicate who had initiated the conversation or the plea negotiations. Before entering his plea, the defendant was admonished pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) and waived his right to counsel in open court.
¶ 4 In September 2009, the defendant filed a pro se petition for relief pursuant to the Post-Conviction Hearing Act (the Act) (
¶ 5 The defendant‘s pro se petition included an affidavit from inmate Tyler Newlin, who indicated that he had been outside the courtroom along with the defendant and had witnessed the encounter between the defendant and Hahn. Newlin maintained that he had “witnessed the State[‘]s Attorney, Mr. Patrick Hahn[,] approach [the defendant] and inform him that his attorney had ‘quit.’ ” According to Newlin‘s affidavit, Hahn had “then made the following statement in a threatening tone[:] ‘You can take the 12 years today, or I will give you 20 years next week at trial.’ ” Newlin further asserted that the defendant had not been “allowed the chance to consult with [an attorney] before going to trial and accepting the State‘s offer.”
¶ 6 In March 2010, the trial court appointed attorney Matthew Hartrich to represent the defendant on his postconviction petition. In June 2010, Hartrich filed an amended petition on the defendant‘s behalf. The amended petition incorporated by reference “all of the allegations” in the defendant‘s pro se petition and specifically alleged the following:
“The State‘s Attorney spoke with [the defendant] without his attorney being present and obtained the guilty plea with [the defendant] without his attorney being present, which violated [the defendant‘s] right to counsel.
U.S. Const., amend. VI ,XIV ;Ill. Const. 1970, art. I, sec. 8 .”
¶ 7 In July 2010, Hartrich filed a certificate attesting that he had complied with the requirements of Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Hartrich specifically certified that he had “consulted with the [defendant] in person to ascertain his contentions of deprivation of constitutional rights,” had “examined the trial court file and report of proceedings of the plea of guilty,” and had “made any amendments to the petition filed pro se that [were] necessary for an adequate presentation of [the defendant‘s] contentions.”
¶ 8 In September 2010, following a hearing, the trial court granted the State‘s motion to dismiss the defendant‘s amended petition for postconviction relief and thus denied the defendant an evidentiary hearing on his underlying claims. When dismissing the amended petition, the trial court noted that when entering his guilty plea, the defendant had been “offered appointed counsel, and he waived his right to appointed counsel.”
¶ 9 The defendant subsequently appealed the trial court‘s dismissal of his amended postconviction petition. Citing People v. Card, 188 Ill. App. 3d 213 (1989), the defendant argued that the trial court erred in dismissing the petition because he had made a substantial showing that the State had violated his sixth amendment right to counsel by “contacting him directly and negotiating a guilty plea with him.”
¶ 11 In November 2012, the trial court granted Hartrich leave to withdraw and entered an order appointing Abbey Brian as third-stage postconviction counsel. In April 2013, the cause proceeded to an evidentiary hearing, where the following evidence was adduced.
¶ 12 The defendant testified that he was 44 years old and was incarcerated at the Centralia Correctional Center. Following his October 2007 arrest, the defendant was initially represented by court-appointed attorney Vaughn, but the defendant‘s family later hired Cunningham to represent him. Cunningham appeared with the defendant at his preliminary hearing in November 2007 and at his formal arraignment in December 2007. The defendant stated that when he appeared for his final pretrial conference in March 2008, he had not spoken with Cunningham since December 2007 and had not received word that Cunningham had withdrawn his representation. The defendant further stated
¶ 13 When cross-examined, the defendant testified that Hahn had “ambushed” him by approaching him in the hallway and basically saying, “[E]ither take this deal or we‘re going to slam you.” The defendant stated that he had been unaware that Cunningham was no longer his attorney until Hahn had informed him that such was the case. The defendant acknowledged that while he was incarcerated following his arrest, he had spoken with Cunningham over the telephone. He testified that after December 2007, however, “every time [he] would call [Cunningham‘s] office[,] nobody would answer.”
¶ 14 The defendant acknowledged that he knew that he had the right to have an appointed attorney present when he spoke with Hahn and had not requested one. The defendant explained that he had “felt like [Hahn‘s offer] was a one-time deal” and that having an attorney appointed “was the furthest thing from [his] mind at the time.” The defendant indicated that he and Hahn had spoken for less than five minutes and that when he brought up the plea agreement that Cunningham had allegedly negotiated, Hahn had said something about it being “bullshit.” The defendant claimed that Hahn had “played on [his] emotions” and had “caught [him] at a bad time.” The defendant testified that Newlin had been with him when Hahn had approached him and that some correctional officers had also been present. The defendant indicated that he had been “on parole” when he was charged in the present case and that his parole had been revoked as a result of the charges.
¶ 15 The defendant acknowledged that he had agreed to the terms of his plea agreement in open court and had not stated that he had been ambushed or that he wanted an attorney appointed to represent him. The defendant further acknowledged that when entering his plea, he had understood the trial court‘s admonishments, had waived his right to an attorney, and had confirmed, among other things, that he had not been threatened, forced, or coerced into entering his plea.
¶ 16 On redirect, the defendant testified that when Hahn approached him in the hallway, Hahn had “[b]asically” said, “[Y]our lawyer quit on you. You could take this 12 years today[,] or I am going to give you 20 or better next week.” The defendant further testified that he had not had “any opportunity to process this information” and had not
¶ 17 On recross, the defendant acknowledged that he knew that count II was a Class X felony with a statutory sentencing range of 6 to 30 years. He also acknowledged that on prior occasions, he had entered guilty pleas to other felony charges. The defendant testified that in the present case, however, he “didn‘t even realize what [had] happened until after the fact.” On further redirect, the defendant stated that he had never previously represented himself when entering a plea of guilty.
¶ 18 Hahn testified that he was the Lawrence County State‘s Attorney from 2004 through 2008. Hahn stated that he remembered the defendant “for several reasons” and recalled that “the nature of the [defendant‘s] crime was pretty bad.” Hahn indicated that in addition to the charges that had been filed in Lawrence County, the defendant had also been charged in Clark County with offenses arising from the same incident. Hahn further indicated that the defendant had pled guilty to the charges in Clark County sometime prior to March 2008.
¶ 19 With respect to the events that led to the entry of the defendant‘s March 2008 guilty plea, Hahn testified that although the cause was set for a final pretrial conference, he had anticipated that in light of Cunningham‘s recent withdrawal, the defendant “would either ask for an attorney or advise the [c]ourt that he wanted additional time to hire an attorney.” Hahn testified that as he was walking through the hallway towards the courtroom, however, the defendant, who “was there with [Department of Corrections] personnel,” had politely asked to speak with him. At that point, Hahn asked the
¶ 20 Hahn testified that he did not recall having any specific dealings with Cunningham in the present case. Hahn indicated that based on prior experiences, however, he had learned that if he wanted to try to negotiate with Cunningham, “it was generally best for [Cunningham] to initiate the negotiations,” which Cunningham often did “on the eve of trial.” Hahn further indicated that he and Cunningham had never discussed a deal by which the defendant would plead guilty to a charge of battery and “everything else would be dismissed.” Hahn testified that there was “no doubt in [his] mind that [the defendant had] initiated the discussion” in the hallway and had “asked to speak with [him].” Hahn testified that “that‘s when [he had] asked [the defendant] if he wanted to have an attorney appointed first, and he said no, he wanted to get it over with.”
¶ 21 When cross-examined, Hahn acknowledged that he knew that the defendant was no longer represented by counsel when they negotiated their plea agreement. Hahn did
¶ 22 During closing arguments, Brian maintained, among other things, that it was “clear that the State [had] initiated the contact here.” Brian further suggested that “the fact that the conversation [even] occurred” was a violation of the defendant‘s right to counsel. The State countered that “it was the [d]efendant who [had] initiated the discussion with Mr. Hahn and not the reverse.” Referencing Card, the State argued that the defendant had thus waived his right to counsel. The State also suggested that before continuing their conversation, Hahn had “protect[ed] himself in a sense” by confirming that the defendant did not want to have an attorney appointed to represent him. Stating that the defendant was “not a person of feeble mind,” the State also emphasized that the defendant acknowledged that he had understood the rights that he was “giving up” by entering his plea. Noting that there was “a contradiction between the two witnesses” regarding who had initiated the plea bargaining, the trial court subsequently took the matter under advisement.
¶ 23 In October 2013, the trial court entered a written order denying the defendant‘s amended postconviction petition. In its order, the trial court noted, among other things,
“Based upon all of the evidence presented at the third[-]stage hearing together with the transcripts of previous hearings in this case, and based upon the demeanor of the witnesses, this court finds that Defendant‘s version of the colloquy in the hallway *** is not credible. The court finds that Defendant *** initiated the discussion with State‘s Attorney Hahn in the hallway and requested to talk to him and that Mr. Hahn only engaged him in discussions concerning a plea after he ascertained that Defendant, having been informed that he had [the] right to speak to an attorney or have a public defender appointed rather than talk to Mr. Hahn, expressed his intent to talk to Mr. Hahn about a possible plea.
From the context and circumstances, it is apparent to the court that Defendant *** was aware previous to the time of this colloquy that Attorney Cunningham no longer represented him. It is also apparent from the testimony and circumstances that Defendant affirmatively engaged State‘s Attorney Hahn in discussion in order to negotiate with him. Thus Defendant‘s Sixth Amendment rights to representation by counsel were not violated by this conversation and negotiation.
Furthermore, at the time the plea was taken, Defendant was again informed of his right to persist in a plea of not guilty and have an attorney appointed to
represent him and repeatedly stated his intent to waive the right to an attorney and enter into the plea agreement. Moreover, it was apparent to this court at the time the plea was taken, from Defendant‘s answers in the course of the court taking the plea and waivers and from Defendant‘s demeanor that he freely, knowingly and voluntarily waived his right to counsel and other rights of defense.”
Brian subsequently filed the defendant‘s timely notice of appeal.
¶ 24 II. DISCUSSION
¶ 25 The defendant argues that his cause must be remanded for a new evidentiary hearing with new postconviction counsel because Brian failed to provide him with the reasonable level of assistance required under the Act. The defendant specifically maintains that Brian‘s representation was deficient in that she failed to cite controlling law in support of the defendant‘s claim that the State violated his sixth amendment right to counsel, failed to use available evidence to bolster the defendant‘s testimony as to when he learned that Cunningham was no longer his attorney, failed to call Newlin as a corroborating witness, and “filed a certificate after the hearing which indicated confusion as to the basics of the Act and her role in representing [the defendant].” For the reasons that follow, we disagree.
¶ 26 A. The Post-Conviction Hearing Act
¶ 27 The Act sets forth a procedural mechanism through which a defendant can claim that “in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.”
¶ 28 At the first stage, the trial court independently assesses the defendant‘s petition, and if the court determines that the petition is “frivolous” or “patently without merit,” the court can summarily dismiss it.
¶ 29 If a petition is not dismissed at the first stage, it advances to the second stage, where an indigent petitioner can obtain appointed counsel and the State can move to dismiss it.
¶ 30 At the third stage, a defendant has the burden of proving a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 472-73 (2006). “An
¶ 31 “Following an evidentiary hearing where fact-finding and credibility determinations are involved, the trial court‘s decision will not be reversed unless it is manifestly erroneous.” People v. Beaman, 229 Ill. 2d 56, 72 (2008). This standard recognizes that “we must give great deference to the trial court‘s factual findings because the trial court stands in the best position to weigh the credibility of the witnesses.” In re Floyd, 274 Ill. App. 3d 855, 867 (1995); see also Coleman, 183 Ill. 2d at 384 (noting that “the post-conviction trial judge is able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a ‘position of advantage in a search for the truth’ which ‘is infinitely superior to that of a tribunal where the sole guide is the printed record’ ” (quoting Johnson v. Fulkerson, 12 Ill. 2d 69, 75 (1957))). “A ruling is manifestly erroneous if it contains error that is clearly evident, plain, and indisputable.” People v. Hughes, 329 Ill. App. 3d 322, 325 (2002).
¶ 32 As previously indicated, “[a]n indigent defendant is entitled to appointed counsel in postconviction proceedings if the petition is not summarily dismissed as frivolous or
¶ 33 B. Strickland v. Washington
¶ 34 In People v. Albanese, 125 Ill. 2d 100 (1988), the supreme court adopted the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), for determining whether a criminal defendant was denied effective assistance of trial counsel under both the state and federal constitutions. People v. Chatman, 276 Ill. App. 3d 619, 622 (1995). To succeed on a claim of ineffective assistance of counsel under the Strickland standard, a defendant must show that counsel‘s performance fell below an objective standard of reasonableness and that counsel‘s deficient performance resulted in prejudice. People v. Ross, 229 Ill. 2d 255, 260 (2008); People v. Shaw, 186 Ill. 2d 301, 332 (1998). “Further, in order for a defendant to establish that he suffered prejudice, he must show a reasonable probability that, but for counsel‘s deficient performance, the result of the proceedings would have been different.” People v. Burt, 205 Ill. 2d 28, 39 (2001). “Because a defendant must establish both a deficiency in counsel‘s performance and prejudice resulting from the alleged deficiency, failure to establish either proposition will be fatal to the claim.” People v. Sanchez, 169 Ill. 2d 472, 487 (1996).
¶ 36 C. The Defendant‘s Claims
¶ 37 Because trial counsel and postconviction counsel serve different roles, because a postconviction petitioner has “already been stripped of the presumption of innocence,” and because the right to postconviction counsel is not constitutionally required, the reasonable level of assistance required under the Act is not coextensive with the level of assistance required under Strickland. People v. Owens, 139 Ill. 2d 351, 364-65 (1990); People v. Gully, 243 Ill. App. 3d 853, 863-64 (1993). The Act does “not guarantee that [a petitioner] will receive the same level of assistance that the Constitution guarantees to defendants at trial.” Owens, 139 Ill. 2d at 364; see also People v. Davis, 388 Ill. App. 3d 869, 884 (2009) (noting that a defendant “is not constitutionally entitled to the effective assistance of counsel at a postconviction proceeding” but is rather entitled to a “reasonable level of assistance“). ”Strickland is thus not applicable” or at least “not
¶ 38 1. Failure to Cite Controlling Law
¶ 39 The defendant argues that Brian “failed to cite controlling law” in support of her argument that the State violated the defendant‘s sixth amendment right to counsel. See People v. Kelly, 2012 IL App (1st) 101521, ¶¶ 31, 32, 40 (holding that postconviction counsel failed to provide a reasonable level of assistance where counsel failed to cite “controlling Supreme Court precedent,” failed to present the defendant‘s arguments in appropriate legal form, allowed the defendant‘s petition to languish for years, and made comments indicating that counsel “either lacked basic knowledge of the Act or fundamentally misunderstood it“). The controlling precedent in the present case was Card, however, and the defendant concedes that his cause was remanded for an evidentiary hearing to determine whether there was a constitutional violation under Card. Nevertheless, citing Boyd v. Dutton, 405 U.S. 1 (1972), the defendant suggests that Brian
¶ 40 2. Failure to Bolster the Defendant‘s Claims Regarding Counsel‘s Withdrawal
¶ 41 On February 8, 2008, Cunningham filed his notice and motion to withdraw with the trial court and certified that on February 7, 2008, he had forwarded copies of the same to the defendant at the defendant‘s prison address. Cunningham did not, however, include the defendant‘s inmate number in the prison address listed on the filed notice. In
¶ 42 On appeal, the defendant suggests that Brian should have used the incomplete address on Cunningham‘s notice to corroborate the defendant‘s testimony that he never received the notice. The defendant specifically claims that Brian “never pointed out the address error in the [n]otice” and “failed to use the incomplete address on the February 2008 [n]otice to corroborate [his] testimony that he did not receive the [n]otice.” These claims, however, are somewhat misleading, if not belied by the record.
¶ 43 When Brian argued that the defendant had previously been unaware that Cunningham had withdrawn, the trial court asked her about the notice that Cunningham had allegedly mailed to the defendant on February 7, 2008. In response, Brian referenced the defendant‘s testimony that he had not received the notice and then stated the following:
“I believe you also see in your file marked March 5, 2008, is a returned envelope. The Circuit Clerk‘s mail never got to [the defendant] either. So, I think it‘s clear from the testimony and from the returned mail that [the defendant] never
got any notice of hearing or any notice of his attorney withdrawing and had no idea that was going to be happening at all.”
Later, when the trial court again inquired about the notice that “was supposedly mailed on February 7, 2008,” Brian stated the following:
“Well, we have to go by his testimony, your Honor, that he never received any letters or any mail or anything, correspondence, from Mr. Cunningham as he testified to. And I just want to point out that [the] letter was returned showing that the Circuit Clerk tried to mail him a letter to what they thought was his address. The same thing could have happened to Mr. Cunningham. He filed a notice. He filed a certificate of service. It could have well been returned to Mr. Cunningham just like the Circuit Clerk‘s letter was returned.”
¶ 44 Although Brian did not specifically point out that the circuit clerk‘s mailing had not included the defendant‘s correct inmate number or that the address listed on Cunningham‘s notice had not included an inmate number at all, both documents were before the court, and the deficiencies are apparent when viewed in light of Brian‘s arguments. Contrary to the defendant‘s intimations on appeal, Brian thus used the evidence to corroborate his testimony that he had not received the notice.
¶ 45 We note that the trial court ultimately determined that the defendant‘s testimony regarding his encounter with Hahn was not credible and that “[f]rom the context and circumstances,” it was “apparent to the court” that the defendant had been aware that Cunningham was no longer representing him when he initiated the plea discussions with Hahn. Moreover, although the defendant suggests that his underlying claim “hinged” in
¶ 46 3. Failure to Call Newlin as a Corroborating Witness
¶ 47 The defendant asserts that Brian‘s “most egregious oversight” was her failure to call Newlin as a corroborating witness “despite the fact that he was named in the pro se petition and had already provided an affidavit.” The defendant intimates that had Newlin testified, there is a reasonable probability that the outcome of the evidentiary hearing would have been different. “Counsel‘s decision whether to present a particular witness is
¶ 48 “It is well established that decisions concerning whether to call certain witnesses for the defense are matters of trial strategy left to the discretion of trial counsel.” People v. Banks, 237 Ill. 2d 154, 215 (2010); see also People v. Negron, 297 Ill. App. 3d 519, 538 (1998) (“Decisions concerning which witnesses to call at trial and what evidence to present are matters of trial strategy, and cannot form the basis for a claim of ineffective assistance of counsel unless a strategy is so unsound that counsel can be said to have entirely failed to conduct any meaningful adversarial testing.“). It is strategically sound for counsel to not call a witness whose testimony would be of “questionable value” (People v. Guest, 166 Ill. 2d 381, 400 (1995)) or whose testimony could potentially harm a defendant‘s case (Marshall, 375 Ill. App. 3d at 677; People v. Smado, 322 Ill. App. 3d 329, 335 (2001); People v. Peterson, 248 Ill. App. 3d 28, 41 (1993)).
¶ 49 Here, Newlin and the defendant were fellow inmates in March 2008, and according to the Illinois Department of Corrections’ website, Newlin has been convicted of numerous felony offenses in Lawrence County. See Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 430 (2007) (noting that a court can take judicial notice of information posted on the Illinois Department of Corrections’ official website). In No. 07-CF-78, he was convicted of attempted burglary; in No. 08-CF-22, he was convicted of domestic battery; in No. 09-CF-85, he was convicted of burglary; in No. 10-
¶ 50 “The trial court has discretion to allow a party to impeach a witness with that witness‘s prior conviction for a felony or other crime involving dishonesty if that conviction, or the witness‘s release date from prison, was within 10 years.” People v. Collins, 366 Ill. App. 3d 885, 897 (2006). “Additionally, the Illinois Supreme Court has found that a defense attorney properly may choose not to interview or call a witness who could be subject to severe impeachment.” Smado, 322 Ill. App. 3d at 335 (citing Guest, 166 Ill. 2d at 400). With these considerations in mind, not calling Newlin as a corroborating witness was “understandable” and “well within defense counsel‘s permissible latitude.” Peterson, 248 Ill. App. 3d at 41. As a matter of strategy, Brian could have reasoned that Newlin‘s testimony would have had negligible value or might have backfired to the detriment of the defendant‘s case. In any event, “that another attorney with the benefit of hindsight would have proceeded differently” does not demonstrate that Brian‘s representation was objectively unreasonable. Dobbs, 353 Ill. App. 3d at 827.
¶ 51 The defendant is also unable to demonstrate that there is a reasonable probability that the result of the evidentiary hearing would have been different had Newlin testified. As noted, when denying the defendant‘s amended petition, the trial court determined that the defendant‘s version of what had occurred in the hallway outside the courtroom was simply “not credible.” The defendant‘s intimation that the trial court would have found otherwise had Newlin testified is speculation that is insufficient to establish prejudice
¶ 52 4. Brian‘s Rule 651(c) Certificate
¶ 53 “Supreme Court Rule 651(c) imposes specific obligations on postconviction counsel to assure the reasonable level of assistance required by the Act.” People v. Lander, 215 Ill. 2d 577, 584 (2005).
“Rule 651(c) requires that the record show counsel has: (1) consulted with the defendant either by mail or in person to ascertain his claims of deprivation of constitutional rights; (2) examined the record of the trial court proceedings; and (3) made any amendments to the pro se petition necessary for an adequate presentation of the defendant‘s contentions. [Citation.] Compliance with the duties set forth in Rule 651(c) is mandatory [citation], and may be shown by a certificate filed by postconviction counsel. [Citation.] The failure to file a certificate showing compliance with Rule 651(c) is harmless error if the record demonstrates that counsel adequately fulfilled the required duties.” Id.
¶ 54 In May 2013, approximately a month after the evidentiary hearing, Brian filed a certificate stating the following:
“I, Abbey M. Brian, Attorney at Law, hereby certify that on November 28, 2012, I was appointed by the Circuit Court of Lawrence County, Illinois[,] to represent the Defendant, JOHN HOTWAGNER, in regard to a Petition for Post-
Conviction Relief filed pursuant to 730 ILCS 5/5-8-1 [sic], further, I certify that after my appointment on behalf of Defendant in said cause[,] I took numerous actions required by statute. First, Counsel has reviewed all of the contents of the court file and ha[s] investigated the Defendant‘s contentions of error[,] and, in addition, I have read all transcripts from the sentencing hearing and the appellate court and have personally corresponded with the Defendant by mail and met with the Defendant in person and advised the Defendant as to his legal rights pursuant to both relevant statutes of the State of Illinois relating to Post-Conviction Relief.”
¶ 55 On appeal, noting that Brian‘s certificate fails to affirm that she ever “consulted” with the defendant about his underlying claim, the defendant argues that the certificate fails to demonstrate that Brian complied with the requirements of Rule 651(c). Because the defendant‘s claim of constitutional deprivation was ascertained long before her appointment, however, there was no need for Brian to have “consulted” with the defendant for purposes of Rule 651(c).
¶ 56 Rule 651(c) recognizes that “[t]o ensure that the complaints of a prisoner might be adequately presented, the [Act] contemplates that the attorney appointed to represent an indigent petitioner will ascertain the basis of the petitioner‘s complaints, shape those complaints into appropriate legal form[,] and present the prisoner‘s constitutional contentions to the court.” People v. Johnson, 154 Ill. 2d 227, 237-38 (1993). However, “Rule 651(c) does not require third-stage counsel to duplicate the efforts of second-stage counsel.” Marshall, 375 Ill. App. 3d at 683.
¶ 58 Lastly, pointing to the certificate‘s incorrect statutory citation and ambiguous reference to “both relevant statutes,” the defendant intimates that Brian‘s certificate suggests that she was generally incompetent to represent him. The defendant contends
¶ 59 As previously noted, “[t]he failure to file a certificate showing compliance with Rule 651(c) is harmless error if the record demonstrates that counsel adequately fulfilled the required duties.” Lander, 215 Ill. 2d at 584. It follows that filing a poorly-drafted certificate is harmless error if the record demonstrates that counsel was otherwise competent and fulfilled her required duties. Moreover, “[i]n reviewing a claim of ineffective assistance of counsel, a court must consider defense counsel‘s performance as a whole and not merely focus upon isolated incidents of conduct.” People v. Max, 2012 IL App (3d) 110385, ¶ 65.
¶ 60 Here, Brian‘s certificate suggests that it was drafted from or based on a previously filed certificate from a case involving a sentencing issue. It further suggests that in light of what Hartrich had already done as second-stage counsel, Brian was uncertain as to what she needed to certify. As discussed above, the only Rule 651(c) requirement that was arguably relevant under the circumstances was that she examine the transcript of the trial court proceedings. She indicated, however, that in addition to familiarizing herself
¶ 61 III. CONCLUSION
¶ 62 We reject the defendant‘s argument that his cause must be remanded for a new evidentiary hearing with new postconviction counsel because Brian failed to provide him with the reasonable level of assistance required under the Act. That another attorney with the benefit of hindsight would have handled the case differently does not establish that her representation was deficient. See Dobbs, 353 Ill. App. 3d at 827. Further, we again note that the trial court‘s denial of the defendant‘s amended petition ultimately turned on
¶ 63 Affirmed.