April 2016 Illinois Criminal Case List DUI | Appeal Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.​​​People v. Kibbons Is this a conflict of interest? Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution. However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea. Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d). While that motion was filed while the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and we have no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless). Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal. Go to case. Sex Case | Other Cries Was it error for the judge to admit other crimes evidence from other patients?​People v. Arze Defendant was a family physician convicted of aggravated criminal sexual assault for forcibly having sexual intercourse with a patient during treatment. The trial judge observed that the women at issue were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other types of treatments. Each incident occurred when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women on an examination table. In 1 Illinois, however, our legislature has chosen to provide a limited exception to this general rule of inadmissibility for other­crimes evidence intended to show the defendant’s propensity to commit crimes.” “If a defendant is tried on one of the enumerated sex offenses, section 115­7.3(b) of the Code [citation] allows the State to introduce evidence that the defendant also committed another of the specified sex offenses.” Our supreme court has upheld the constitutionality of section 115­7.3. In this case, all the victims had the same relationship to defendant, i.e., the doctor­patient relationship. The evidence demonstrated that the women were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other treatments. Each incident occurred in defendant’s examination rooms, when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women who were on an examination table. The fact that this victim alleged forced sexual intercourse, while the two other crimes victims alleged lesser forms of sexual misconduct, is insufficient to conclude that the trial judge abused her discretion. Finally, the case lays the proper procedure for a court to follow when a defendant is asking for medical records of a victim. Go to case. Evidence | 115‐10 Statement | Sex Case Defendant is convicted on two counts of predatory criminal sexual assault based on the child’s testimony and her 115­10 statement. ​People v. Johnson The child testified that her father licked his fingers and inserted them into her private part. In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration. The 115­10 statement is substantive so defendant was properly convicted on both counts. In Crawford, the Court dispensed with the “amorphous notions of ‘reliability’ ” that governed the Roberts Court’s confrontation clause analysis. Instead, the Court held that, regardless of a statement’s reliability, the confrontation clause bars the admission of any out­of­court statement that is “testimonial,” unless (1) the statement’s declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination. Therefore any case law before Crawford suggesting that 115­10 statements need to be narrowly construed are now rejected. Section 115­10 requires the trial court to “find[]” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115­ 10(b)(1). The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail. The court merely tracked the language of the statute and that was found to be sufficient. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 2 Evidence | Other Crimes | Domestic Violence Case Other crimes of a domestic nature are admissible in a general crime that is motivated by domestic violence. ​People v. Nixon In this trial for aggravated discharge of a firearm and being an armed habitual criminal other crimes evidence of a domestic nature was admitted. The case involved defendant taking shots at the tires of the car of his ex girlfriend and mother to his two children. The victim had fled to Wisconsin and the state had jail phone calls indicating the defendant had something to do with the victim being unavailable for trial. Nonetheless, the State is allowed to admit evidence that defendant had shot her before and also is allowed to admit her hearsay statement of the incident where her tires were shot. Other­crimes evidence is admissible to prove propensity as provided in sections 115­7.3, 115­7.4, and 115­20 of the Code (725 ILCS 5/115­ 7.3, 115­7.4, 115­20 (West 2012)). See Ill. R. Evid. 404(b). The trial court also found that evidence of the 2006 shooting was admissible as propensity evidence pursuant to section 115­7.4 of the Code (725 ILCS 5/115­7.4 (West 2012)), which allows the admission of other­crimes evidence in domestic­violence cases. Section 103(3) of the Act defines “domestic violence” as “abuse.” 750 ILCS 60/103(3). “Abuse,” in turn, is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/103(1). Contrary to defendant’s argument, the evidence surrounding the charged offenses establishes that the 2012 shooting constituted an act of domestic violence as that term is defined in the Act. First, the car shooting shooting constituted “physical abuse.” For purposes of section 115­7.4 of the Code (725 ILCS 5/115­7.4), “physical abuse” includes “knowing or reckless use of physical force” as well as “knowing or reckless conduct which creates an immediate risk of physical harm” (750 ILCS 60/103(14). The car shooting constituted knowing or reckless conduct creating an immediate risk of physical harm because the gun was fired in the direction of the house which had people in it. See People v. Garcia, 407 Ill. App. 3d 195, 201­02 (2011) (discussing harm created by act of firing bullets in the direction of an occupied building). Therefore, it constituted “physical abuse” as defined in the Act. Defendant’s conduct on the day of the shooting also constituted “harassment” as that term is defined in the Act. “Harassment” is “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the [victim].” Here, the evidence presented at trial clearly established that defendant’s conduct in the hours leading to the car shooting subjected the victim to “harassment.” The evidence of the 2006 shooting established defendant’s continuing animosity toward her, his intent to harm her, and a motive—defendant’s desire to assert control over his relationship with her. Additionally, The doctrine of forfeiture by wrongdoing is a common­law doctrine. People v. Hanson, 238 Ill. 2d 74, 96 (2010); People v. Peterson, 2012 IL App (3d) 100514­B, ¶ 20. Under this doctrine, “one who obtains the absence of a witness by wrongdoing April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 3 forfeits the constitutional right to confrontation.” The Illinois Supreme Court has also recognized that the doctrine serves both as an exception to the hearsay rule and to extinguish confrontation claims. Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Ill. R. Evid. 804(b)(5) When the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and the intent to procure the unavailability of the declarant. The telephone conversations between defendant and others show a concerted effort on the part of defendant and others to ensure that the victim did not testify or appear in court. Go to case. Trial | Batson Challenge Trial court properly accepted race neutral reasons for excluding minority jury members. People v. Shaw Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury. The State said that when the question came up could you find the defendant guilty, there was a juror with a long pause, there was a look, the Court actually had to repeat the question. In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant’s cousins and nieces. In addition, the State noted her boyfriend had pending cases and was represented by the public defender’s office. The trial court found that defendant has not shown purposeful discrimination. The Court found that the prosecutor was credible and that the prosecutor’s demeanor did not show discriminatory intent, but merely showed strategic decisions. Furthermore, the reviewing court found the trial court was justified in finding that both jurors demonstrated demeanor that exhibited the basis for the strike by the prosecutor. Go to case. Trial | Sufficiency of the Evidence Out of control 2 year old rescues defendant from a conviction for contributing to the delinquency of a child. ​People v. Gharrett Defendant was at the SOS office so his newlywed could change her name. When his 2 year old step daughter ran into the back office, defendant followed to retrieve her. On his way out he snatches a bundle of cash and checks in a desk drawer. It’s all on video. He is convicted of 12 April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 4 years for burglary and 10 years for contributing to the delinquency of a child. A person commits contributing to the criminal delinquency of a child when they, a person 21 years of age or older, “with the intent to promote or facilitate the commission of an offense solicits, compels or directs a minor in the commission of the offense that is *** a felony when the minor is under the age of 17 years ***.” 720 ILCS 5/12C­30(b)(i). The video shows defendant leaning in to talk to the child. The state argued he told her to run toward the office, which allowed defendant to enter the office and commit a theft without raising the suspicions of the SOS employees. The kid was basically running around everywhere. Previously, she wandered all over the SOS building and, in particular, into the office without any prompting from defendant. Given that context, the evidence was insufficient to prove beyond a reasonable doubt that the child’s running to the office area was the result of defendant’s directing her to do so. Additionally, lay witness opinion testimony was admitted that allowed a witness to describe what was depicted in the video. Namely that defendant was carrying an object in his right hand that was “consistent with the pile or wad of cash and checks”. Go to case. Trial | Shackling | Sex Case | Other Crimes Shackling of defendant during bench trial in this child sex case leads to reversal.​People v. Williams In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977). A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury. Here, there is no indication that the trial court conducted a Boose analysis before keeping the defendant in shackles during his trial. Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary. Reversal is required because this was a close case and there is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court. Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which we can remand for a more complete record, we reverse and remand for a new trial. Also, this child is allowed to testify in the judge’s chambers which could also have been a problem. 725 ILCS 5/115­11 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 5 finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony. Go to case. Defense | Compulsion No ineffective assistance of counsel for failing to instruct the jury on compulsion. ​People v. Orasco This was a murder and attempt murder conviction. It’s robbery in the victim’s home and they are executed to prevent them from calling the police. Female victim, however, does not die as the bullet remains lodged in her head. Defendant claimed in his police interview that the codefendant made him do it, by pointing the gun at him and threatening to kill him if he tried to run or told police. Trial strategy focused on claiming elements of accountability were not met then pivoted to an argument that defendant only acted out of fear for his own life. The affirmative defense of compulsion is available when a defendant has committed criminal acts under a reasonable belief that death or great bodily harm would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/7­11. Here, counsel’s failure to tender an instruction did not prejudice defendant. The evidence did not establish that defendant committed the acts constituting any of his offenses under threat of great bodily harm or death. Further, any potential compulsion arose from the fault of defendant. Finally, Defendant failed to withdraw from the criminal enterprise when he had the perfect opportunity to do so. Go to case. Gun | Armed Habitual Conviction Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction. P​eople v. Sanderson The Code defines “forcible felony” as follows: “[T]reason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 6 203 Ill. 2d 187, 196 (2003). But the defendant need not actually inflict physical injury. Additionally,because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death. Accordingly, the court held that every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute. A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that under the particular facts of this case, the defendant contemplated the use of force and was willing to use it. Defendant’s conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony. None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force. Go to case. Procedure | Conflict of Interest | Corrupt Judge Postconviction petition alleging corrupt trial judge is dismissed. ​People v. Gacho The trial judge conducting this murder trial actually was convicted of accepting bribes. However, defendant’s case was not a “fixed” case. The gist of the claim was that a codefendnat paid the judge $10,000 for a not guilty in his case. If true that meant the judge could not be fair in defendant’s case. Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair. In sustaining the dismissal of this postconviction petition the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant’s story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up. If the judge possessed a pecuniary interest in the outcome of the defendant’s trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently. The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge’s pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant’s case. A defendant must still “who alleges that his trial judge’s corruption violated his right to a fair trial must establish (1) a ‘nexus’ between the judge’s corruption or criminal conduct in other cases and the judge’s conduct at [the defendant’s] trial; and (2) actual bias resulting from the judge’s extrajudicial conduct.” See the dissent for a strong counter argument. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 7 Procedure | Statute of Limitations Does the statute of limitations bar a charge of violation of bail bond when defendant is apprehended 18 years later?​People v. Casas No it doesn’t. Defendant was on the lamb for 18 years for a drug case. He came back and was arrested, sentenced to 20 years on the drug thing, and then charged with violation of his 1996 bail bond. 720 ILCS 5/32­10(a). Most felony offenses must be charged “within 3 years after the commission of the offense.” 720 ILCS 5/3­5. A continuing offense tolls the three­year limitations period as follows: “When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed.” 720 ILCS 5/3­8. According to the State, the limitations period was tolled when the offense was initially committed, and began to run once defendant was taken into custody. This court said that the legislature intended that, like escape, violation of bail bond would be treated as a continuing offense. Like escape, wherever else the bail­bond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody. People v. Grogan, 197 Ill. App. 3d 18 (1st Dist. 1990) was wrong. Any other ruling would give defendant an unmerited winful in that it would encourage a defendant “to remain in hiding until the three­year statute of limitations had expired” and the underlying case itself could be weakened. Go to case. Procedure | Speedy Trial What happens when defendant demands a trial within 120 days but continues to file motions? ​People v. Lilly Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro se motion filing. “For purposes of a speedy­trial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.” Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance. Here, a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney’s unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, an agreed continuance tolls the speedy trial period. An express agreement to a continuance on the record is an affirmative act attributable to the defendant. Defendant failed to promptly repudiate defense counsel’s actions. Indeed, defendant responded that it was “fine” when the trial court told defendant that the April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 8 motion for bond reduction would be heard the following week. Although defendant was saying he wanted his 120, he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him. Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant’s motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial. Further, the court could not construe defendant’s subsequent statement that he wanted to “use [his] 120” as an objection to the continuance. Section 103­5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling. “Defendant’s contention illustrates what the Cordell court sought to prevent, the use of section 103­5(a), not as a shield to protect defendant’s right to a speedy trial, but as a sword to defeat his conviction.” Go to case. Procedure | Krankel Hearing After remand, trial judge gets to the bottom of Defendant’s K​rankel​complaint even though trial counsel was in Mexico.​People v. Willis This case was sent back to the trial level so the judge could conduct a Krankel hearing, otherwise the murder conviction stands. Once set back, defendant told the judge his trial attorney was ineffective because he did not ask for a lesser included instruction on second degree murder or involuntary manslaughter. The trial court denied a new trial or an appointment of new counsel because he found this decision to be a matter of trial strategy. This time record showed that the court fully considered Defendant’s pro se claim of ineffective assistance by discussing the claim with him, and evaluating the claim based on its knowledge of defense counsel’s performance and the insufficiency of the claim on its face. Although, trial counsel filed a motion on his own ineffectiveness for not securing a witness. The defendant did not bring up that issue when the trial court finally gave him a chance to bring up his complaints. Thus, the trial judge met his Krankel obligations. Go to case. Sentencing | Life Sentence This discretionary life sentence for 17 year old defendant stands. ​People v. Walker April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 9 Defendant shot a cab driver in the back of the head with a sawed off shotgun in 1984. He was sentenced to a discretionary life sentence. Defendant’s 2013 postconviction petition was denied because the trial court found that the original trial court had considered defendant’s youth and other relevant factors before sentencing. The trial court also declined to extend Miller to defendant’s case, reasoning that Miller applies to mandatory life sentences, not discretionary ones. First, the petition was untimely. Reviewing court did not agree that this strand of argument has only been available to criminal defendants since the Supreme Court decided Miller. A juvenile’s relative lack of fault, in comparison to their adult counterpart, is not an intellectual breakthrough that came to light solely in the wake of Miller. Second, Miller only says no mandatory life sentences for juveniles. Trial courts must consider the youth’s age. This was a discretionary life sentence were the judge followed the mandates of Miller. The facts of the case matter. Leon Miller was a lookout during a robbery which he played no part in planning, had approximately one minute to contemplate his decision to participate, and never handled a gun in the course of the offense. He was “the least culpable offender imaginable.” This defendant was the triggerman. He planned his acts before deliberately putting them into action. The murder was horribly mutilating to the body of the victim, and was performed cold­bloodedly without any provocation, real or imagined, on the part of the victim. Go to case. Sentencing | Fines | Postconviction | 2‐1401 Petition Trial court vacated fines and fees after defendant files a civil 2­1401 petition. ​People v. Hible Here, both parties challenge the entry of fines by the circuit clerk for the first time on appeal. People v. Castleberry, 2015 IL 116916, does not prevent the court from vacating the fines imposed by the circuit clerk in this case. Fines imposed by the circuit clerk are still void. The clerk possesses no power or jurisdiction to render a judgment, but only to enter it under the express or implied order of the judge, in the exercise of judicial power. The judgment rendered by him is, therefore, unauthorized and void. While the circuit court has original jurisdiction, jurisdiction for sentencing is limited to the judge. The circuit clerk is prohibited from entering judgment. This court has held the clerk of court is a nonjudicial officer and has no power to impose sentences or levy fines. Therefore, under a section 2­1401 petition, void judgments can be challenged beyond the two­year time limit. A void judgment is one entered without jurisdiction and can be challenged at any time or in any court, either directly or collaterally. The reviewing court has jurisdiction to address this issue for the first time on appeal. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 10 Sentencing | Fines Reviewing court vacates more fines imposed by the circuit clerk.​People v. Strong Defendant got 4 years for DWLS. The trial court made no mention of fines, stating only that “judgment enters for costs of prosecution.” Similarly, the court made no mention of fines in its written sentencing order. Then, a fines and fees sheet featuring 20 monetary assessments imposed against defendant appeared in the record. $150 of the listed “assessments” are in fact fines that must be vacated. They were: a $20 Violent Crime Victims Assistance Fund assessment, a $50 court systems fee, a $10 arrestee’s medical costs fund assessment, a $15 State Police Operations Assistance Fund assessment, a $15 drug court fee, a $30 Children’s Advocacy Center assessment, and a $10 State Police Services Fund assessment. Each of the assessments identified by defendant is, indeed, a fine. See People v. Johnson, 2015 IL App (3d) 140364, (appendix). Fines imposed by circuit clerks are “void from their inception.” Go to case. Postconviction | Sex Case A strictly statutory error does not rise to the level of a constitutional error. ​People v. Rademacher In his postconviction petition defendant argued that the trial court deprived him of his constitutional right to a fair sentencing hearing when it considered in aggravation evidence unsupported by the record. Specifically, defendant contended that the crimes were committed in the parsonage, which does not constitute a “place of worship” under the aggravating factors statute. 730 ILCS 5/5­5­3.2(a)(11). He was a youth minister. This argument failed because it was not of sufficient constitutional dimension. There must be a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both. Any such error is one created solely by statute. Defendant here allowed his victims to spend the night at his house, which was property owned by the church. He proceeded to perform sexual acts on the victims in that house before taking them to church the next morning. That the trial court reasonably cited this pattern of behavior in aggravation does not offend either the federal or state constitution. Any purported error was only committed insofar as the facts of defendant’s case do not line up with the language and definitions set forth in subsection (a)(11) of the aggravating factors statute. 730 ILCS 5/5­5­3.2(a)(11). In other words, but for the existence of that statute, there could be no claim of error. Accordingly, the issue raised by defendant is one of statutory construction, and is not an issue of constitutional deprivation. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 11 Postconviction Dismissal of this postconviction petition was improper.​People v. Russell He is saying his postconviction counsel failed to provide him with a reasonable level of assistance in that he failed to amend one of his postconviction claims in order to avoid dismissal on the basis of waiver. Specifically, defendant argues that the claim that the trial court erred in admitting evidence of other crimes and prior bad acts should have been amended to claim that the waiver of the claim was due to ineffective assistance of appellate counsel. Rule 651(c) requires that appointed postconviction counsel make any amendments that are necessary for an adequate presentation of petitioner’s contentions. It is considered routine for postconviction counsel to amend the petition to allege ineffective assistance of counsel. The failure of postconviction counsel to make this routine amendment, which contributed directly to the dismissal of the petition without an evidentiary hearing, rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). Further, a defendant is not required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused prejudice. People v. Ross, 2015 IL App (3d) 130077, ¶ 15. Instead, where postconviction counsel failed to fulfill the duties of Rule 651(c), remand is required, regardless of whether the claims raised in the petition had merit. Postconviction counsel’s noncompliance with Rule 651(c) may not be excused on the basis of harmless error. Dismissal of petition is reversed and Defendant is allowed new counsel. Go to case. Postconviction Trial court was correct to dismiss the 2­1401 petition. P​eople v. Rolfe The proof of service, attached to his petition, states only that it was placed the prison mail system to be mailed to the clerk of the circuit court. The proof of service says nothing, one way or the other, about serving the petition on the State. He argues the petition is unripe for adjudication until 30 days pass after service of the petition on the State pursuant to Illinois Supreme Court Rule 105, and he represents he has not yet served the petition on the State. The supreme court explained that, as the appellant, the defendant “ha[d] the burden to present a sufficiently complete record such that the court of review [could] determine whether there was the error claimed by the appellant.” Without a record affirmatively showing the claimed error, a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 12 court of review would presume the trial court followed the law. “To serve as a basis for [the] defendant’s contention of error, [the proof of service had to] affirmatively establish that [the] defendant mailed his petition via some means other than certified or registered mail.” It did not do so, so this dismissal was proper. See People v. Carter, 2015 IL 117709. The silence of the record is not the affirmative showing of error required of an appellant. Defendant never asked the trial court to reconsider its decision on the ground that he had not yet served the State. See 735 ILCS 5/2­1203(a). Any section 2­1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 13