By:  Kimberly Glasford

Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) generally requires postconviction trial counsel to file a certificate stating that she has fulfilled her duties to the defendant under that rule. In People v. Smith, 2022 IL 126940, the supreme court considered whether substitute counsel in a postconviction proceeding must show Rule 651(c) compliance where the defendant’s original counsel in the same proceeding has already filed a certificate. The answer is no.

The right to counsel in postconviction proceedings is statutory (725 ILCS 5/122-4 (West 2018)), not constitutional, and a defendant is entitled to only reasonable assistance. To further the reasonable assistance of counsel, Rule 651(c) states:

“The record *** shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner *** to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

Postconviction counsel’s filing of a Rule 651(c) certificate creates a rebuttable presumption that the defendant received reasonable assistance.

 In Smith, the defendant’s original postconviction counsel filed a Rule 651(c) certificate, creating a presumption of reasonable representation. Counsel also filed a response to the State’s motion to dismiss the petition. Before the hearing on the State’s motion, however, substitute counsel was appointed. She did not file her own Rule 651(c) certificate.

The supreme court observed that while Rule 651(c) requires appointed counsel to investigate and properly present a defendant’s pro se contentions, the defendant’s substitute counsel was not appointed to represent a pro se litigant; rather, the defendant’s original counsel had already determined that no amendments were needed to shape defendant’s pro se petition. The two attorneys played significantly different roles given that substitute counsel needed only to argue the motion.

The court also found that requiring substitute counsel to file a Rule 651(c) certificate would waste resources. Specifically, original counsel took almost 16 months to fulfill her Rule 651(c) duties, and the State took a year to review the defendant’s petition and file a motion to dismiss. If substitute counsel were required to perform the duties stated in Rule 651(c), she would be starting over and could potentially file a modified petition. This would in turn mean that the State would be starting over.

Accordingly, the supreme court held that substitute counsel was not required to file her own Rule 651(c) certificate.

In reaching that determination, the court stressed that even where a presumption of reasonableness has arisen due to the filing a Rule 651(c) certificate, a defendant may nonetheless pursue a claim that counsel’s representation was unreasonable. Yet, the defendant in Smith had not argued that either of his postconviction attorneys failed to provide reasonable assistance.

Following Smith, substitute counsel generally need not file a Rule 651(c) certificate if prior counsel has already done so. Still, Smith does not prevent substitute counsel from filing a certificate where she has taken the steps enumerated in the rule. In that instance, substitute counsel should consider filing her own certificate for good measure, particularly where counsel anticipates that the defendant will later challenge the adequacy of postconviction representation.