text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John Carlos BOOSE, Defendant-Appellee.
    No. 2-17-0016
    Appellate Court of Illinois, Second District.
    Opinion filed March 28, 2018
    Joseph P. Bruscato, State's Attorney, of Rockford (Patrick Delfino, Lawrence M. Bauer, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Michael J. Pelletier, Thomas A. Lilien, and Andrew Smith, of State Appellate Defender's Office, of Elgin, for appellee.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Defendant, John C. Boose, was charged with six counts of first-degree murder ( 720 ILCS 5/9-1(a)(1), (a)(2) (West 2014) ) in connection with the death of his wife, Regina Boose. Defendant moved to quash a search warrant and to suppress evidence seized as a result of the execution of the warrant. Defendant pointed out that the items to be seized, as described in the warrant, would have pertained to the investigation of a drug offense. The officers who executed the warrant seized items related to the investigation of the death of the victim, but those items were not described in the warrant. The Winnebago County circuit court denied the motion to quash and suppress. However, defendant moved to reconsider and the trial court granted the motion. The State appeals. We affirm.

¶ 2 The warrant was obtained by Jeff Schroder, a detective with the Rockford Police Department. Schroder prepared a complaint for a search warrant and an accompanying affidavit. The complaint stated as follows:

"I, Detective Jeff Schroder being first duly sworn on oath, say that certain instruments, articles or things, which may constitute evidence of Violation of the Illinois Controlled Substances Act and/or Violation of the Cannabis Control Act are located within the described place situated in the County of Winnebago, State of Illinois, to wit:
That such instruments, articles or things, are more particularly described as follows: Cocaine, Cannabis, United States currency, narcotic paraphernalia, including but not limited to plastic baggies, zip lock bags, and/or paper folds, scales, grinders or mixing devices, spoons, pots, pans, kitchen utensils, kitchen appliances, any instruments or devices used to cook or process cocaine, straws, glass tubes, syringes, pipes and powders used to adulterate cocaine, pagers, safes, binoculars, intercom systems, two way radios, scanners, cellular telephones, video cameras, firearms and ammunition, broom handles, bludgeons, wooden handles, extension cords, ropes, belts, any binding agents [,] records (both written and recorded) and computer hardware and software describing names, quantities of currency and narcotics sold, purchased or possessed, and any documents listing the name of the person or persons who receive mail or who own or rent the premises, or any clothing or personal effects indicating who resides at the premises, or who was in possession of any of the above mentioned items, or who rents, owns, or otherwise controls the premises located at 2204 Van Wie Avenue, Rockford, Illinois .
That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein." (Emphases added and in original.)

¶ 3 The affidavit indicated, inter alia , that at 10 a.m. on January 30, 2015, two Rockford police officers were dispatched to Rockford Memorial Hospital. The officers learned that the victim had been taken to the hospital and was deceased. One of the officers met with the victim's seven-year-old granddaughter, who lived with defendant and the victim at their home at 2204 Van Wie Avenue. She told the officer that, the previous night, she saw defendant beat the victim with a broom. The officers met with two deputy coroners, who took them to the trauma room where the victim's body was located. The deputy coroners showed the officers various injuries that the victim had sustained, including bruises, abrasions, and lacerations to her nose, forehead, and forearm. The victim's granddaughter was later interviewed by a detective. She told the detective that she saw defendant beat the victim numerous times in the head, face, legs, arms, stomach, and back with a broom.

¶ 4 The warrant, which was signed by Judge Steven L. Nordquist, stated, in pertinent part:

"Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place, to wit: The premises located at 2204 Van Wie Avenue, Rockford, Illinois * * *.
* * *
YOU ARE HEREBY COMMANDED to execute this search warrant * * * by searching the premises herein described and seizing the instruments, articles or things herein described, if found therein * * *." (Emphases in original.)

¶ 5 The warrant's description of the items to be seized was identical to the complaint's description of items that would be relevant to the investigation of a drug offense. However, the warrant did not include the following items listed in the complaint that were germane to the investigation of the victim's death: "broom handles, bludgeons, wooden handles, extension cords, ropes, belts, [and] any binding agents." In his motion to quash and suppress, defendant argued that the warrant was defective because the affidavit did not establish probable cause to seize the items listed in the warrant. No witnesses testified at the hearing on the motion. In denying the motion, the trial court stated that the warrant "contains incorporation language 'whereas a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described premises.' " The court reasoned that

"by incorporating and cross referencing the Complaint for Search Warrant and Affidavit a valid search warrant is set forth. So when read together with the Complaint for Search Warrant, which incorporates the Affidavit and includes the particularized homicide related items seized at 2204 Van Wie, the Search Warrant is valid."

Finding that Schroder had both "signed and submitted the Search Warrant" and participated in the search, the court reasoned that "there was no confusion, no possibility of error and no room for discretion in determining the property to be searched and seized."

¶ 6 Defendant moved to reconsider, arguing that there was no evidence that Schroder had executed the warrant. The trial court held an evidentiary hearing on the motion to reconsider. Schroder was among the witnesses who testified at the hearing. Schroder testified that Sergeant Joe Stevens of the Rockford Police Department briefed several detectives about the incident at 2204 Van Wie Avenue. Stevens asked Schroder if he would obtain a search warrant for the premises at that address. Schroder prepared the complaint for a search warrant, the affidavit, and the warrant itself. After Judge Nordquist signed the warrant, Schroder advised Stevens that he had obtained the warrant. Schroder proceeded to the scene and left the warrant there. Schroder did not leave the complaint or the affidavit at the scene. There were several officers at the scene. Schroder did not notify them of the contents of the warrant and he did not search the premises. Stevens gave him another assignment and he left.

¶ 7 In granting the motion to reconsider, the trial court reasoned as follows:

"[T]he detectives who conducted the search did so with no particularized description of the items to be searched. In addition there is no evidence that the affidavit prepared by Detective [Schroder] was attached to the search warrant dropped off at defendant's residence. The Court finds that in the absence of Detective [Schroder] under these circumstances, the detectives on the scene transformed the search warrant into a general search warrant, which is a violation of the defendant's Fourth Amendment rights. * * *
When * * * issuing its initial ruling from this Court's prospective [sic ], Detective [Schroder] was the common thread between the supporting the [sic ] affidavit, complaint for search warrant, the search warrant, and the execution of the search warrant * * *. Without Detective [Schroder] present to execute the search warrant, there was room for confusion. There was room for discretion as to the property to be seized."

¶ 8 Upon review of a ruling on a motion to suppress, the trial court's findings of fact are entitled to great deference, and we will reverse those findings only if they are against the manifest weight of the evidence. People v. Jarvis , 2016 IL App (2d) 141231, ¶ 17, 405 Ill.Dec. 211, 58 N.E.3d 18. The trial court's legal conclusion whether to suppress the evidence is subject to de novo review. Id. "To be valid, a search warrant must state with particularity the place to be searched and the persons or things to be seized." People v. Garcia , 2017 IL App (1st) 133398, ¶ 41, 412 Ill.Dec. 135, 74 N.E.3d 1058. This requirement is designed to "prevent the use of general warrants that would give police broad discretion to search and seize." People v. Burmeister , 313 Ill. App. 3d 152, 158, 245 Ill.Dec. 903, 728 N.E.2d 1260 (2000).

¶ 9 The State challenges the analysis the trial court employed in granting defendant's motion to reconsider. As noted, the trial court reasoned that "in the absence of Detective [Schroder] * * * the detectives on the scene transformed the search warrant into a general search warrant which is a violation of the defendant's Fourth Amendment rights." According to the State, "[t]he trial court's reasoning and analysis is incorrect because it focused on the execution of the warrant, rather than the warrant itself." The State cites People v. Turnage , 162 Ill. 2d 299, 205 Ill.Dec. 118, 642 N.E.2d 1235 (1994), in which the defendant sought to suppress evidence obtained as a result of his arrest pursuant to an invalid warrant. The Turnage court observed that "the appropriate analysis where an officer arrests a suspect based upon a warrant obtained by someone else is to determine whether there is a valid warrant at the source." Id. at 312, 205 Ill.Dec. 118, 642 N.E.2d 1235.

¶ 10 The State argues that the warrant was, indeed, valid. It is undisputed that the complaint for the warrant, and the accompanying affidavit, established probable cause to search for and seize evidence of the offense of first-degree murder. It is also undisputed that the warrant sufficiently described the place to be searched. However, the items to be seized, as described on the face of the warrant, did not relate to the murder investigation. On its face, the warrant described items that would be relevant to the investigation of a drug-related offense. According to the State, it is apparent that the warrant was prepared on a computer and that Schroder mistakenly cut and pasted boilerplate language used in warrants to search for evidence of drug offenses. The State maintains that the inclusion of this language was a "technical error best described as a scrivener's error" and that it did not invalidate the entire warrant. According to the State, the valid portion of the warrant may be severed from the invalid description of the items to be seized.

¶ 11 The obvious problem with that analysis is that severing the invalid portion of the warrant from the remainder would simply leave the warrant without any description of the items to be seized. We would be left with a general warrant running afoul of the fourth amendment. To overcome this problem, the State argues that the warrant incorporated the complaint by reference and that the complaint, in turn, incorporated the affidavit by reference. In support of this argument, the State cites People v. Fragoso , 68 Ill. App. 3d 428, 25 Ill.Dec. 138, 386 N.E.2d 409 (1979), in which there was a question as to whether a warrant sufficiently described the place to be searched. The Fragoso court stated that, in determining whether a warrant is valid, we may look to the affidavit for the warrant "where the affidavit is attached to the warrant, incorporated by reference , or as is the case here, where the officer who signed and swore to the affidavit also executed the search warrant." (Emphasis added.) Id. at 433, 25 Ill.Dec. 138, 386 N.E.2d 409.

¶ 12 The State's position is that incorporation by reference is sufficient to satisfy the fourth amendment's particularity requirement, even if the incorporated document does not accompany the warrant. Citing Groh v. Ramirez , 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), defendant responds that the incorporated document must accompany the warrant. Groh noted that "most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant." (Emphasis added.) Id. at 557-58, 124 S.Ct. 1284. However, in cases decided after Groh , United States Courts of Appeals have reached differing conclusions on the question of whether an affidavit must accompany a warrant. Compare Millender v. County of Los Angeles , 620 F.3d 1016, 1026 (9th Cir. 2010) (court could not consider whether affidavit narrowed the scope of warrant where there was no evidence that affidavit either was physically attached to the warrant or accompanied the warrant on the search), rev'd on other grounds sub nom. Messerschmidt v. Millender , 565 U.S. 535, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012), with United States v. Hurwitz , 459 F.3d 463, 472-73 (4th Cir. 2006) ("We see nothing in the Constitution requiring that an officer possess or exhibit, at the time of the search, documents incorporated into a warrant as an additional safeguard for the particularity requirement.").

¶ 13 We need not decide whether incorporation of a document by reference is sufficient in itself or whether the document must also accompany the warrant. Here, the warrant simply did not incorporate the complaint by reference. The warrant's only reference to the complaint was the following language: "Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place * * *." Similar language has been held to be insufficient to incorporate by reference a complaint into a search warrant. In People v. Staes , 92 Ill. App. 2d 156, 157-58, 235 N.E.2d 882 (1968), the warrant proclaimed " 'ON THIS DAY Donald T. Shaw COMPLAINANT HAS SUBSCRIBED and sworn to a complaint for search warrant before me.' " The Staes court held that "[i]n the case before us the warrant did not expressly adopt the description in the complaint for search warrant." Id. at 162, 235 N.E.2d 882. Similarly, here, the warrant did not expressly adopt the complaint's description of the items to be seized. Instead, it merely acknowledged the complaint before expressing a different description of the items to be seized. We will not "use the mere fact that the police requested a warrant to search [for particular items] to infer that the issuing judge found probable cause to authorize a search [for those items], despite the sheer absence of any language to that effect in the warrant itself." People v. Mabry , 304 Ill. App. 3d 61, 66-67, 237 Ill.Dec. 824, 710 N.E.2d 454 (1999) ; cf. People v. Siegwarth , 285 Ill. App. 3d 739, 741, 743, 220 Ill.Dec. 965, 674 N.E.2d 508 (1996) (defendant's substantial rights were not impaired by seizure of cannabis, cash, and a triple-beam scale pursuant to warrant that left the space to list items to be seized blank, but directed officers to seize " 'related paraphernalia which have been used in the commission of, or which constitute evidence of the offense of Unlawful Possession of Cannabis' ").

¶ 14 The dissent maintains that the mere reference to the complaint was sufficient to incorporate the complaint into the warrant. The dissent does not attempt to distinguish Staes . Instead the dissent stresses that Staes is "an approximately 50-year-old case." Infra ¶ 26. According to the dissent, our analysis should be guided by the United States Supreme Court's more recent decision in Groh and by cases that interpret Groh. Although Staes is far from a new case, that alone does not diminish its precedential value. Moreover, having invoked Groh , the dissent does not suggest either that Staes is inconsistent with Groh or that Groh supports the State's case. As for cases interpreting Groh , the dissent looks out of state to a Louisiana decision- State v. Maxwell , 2009-1359 (La. App. 1 Cir. 5/10/10), 38 So.3d 1086 -that distinguished Groh . Maxwell is neither precedential ( In re A.C. , 2016 IL App (1st) 153047, ¶ 47, 403 Ill.Dec. 811, 54 N.E.3d 952 ) nor persuasive. The Maxwell court upheld a search pursuant to a warrant that did not describe with particularity the items to be seized, holding in part that the warrant "refer[red] back" to the affidavit containing a list of items to be seized. Maxwell , 2009-1359, at 9, 38 So.3d 1086. Referring to a document is not the same as incorporating the document by reference. Moreover, because the Maxwell court did not recite that actual language of the warrant, it is difficult to compare that case with this one.

¶ 15 The State finally argues that, even if the officers who executed the warrant were merely assuming that the warrant was valid, they had the right to make such an assumption. In support of this argument, the State cites Whiteley v. Warden , 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). The State notes that Whiteley states, "police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause." Id. at 568, 91 S.Ct. 1031. The State ignores the very next sentence, which states, "Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Id. Accordingly, the argument is unpersuasive.

¶ 16 The dissent contends that, because there was no police misconduct in this case, the exclusionary rule should not apply. "The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Illinois v. Gates , 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Here, the State has raised only the latter issue. It would be unfair to decide this case in the State's favor on the basis of an argument not raised in this appeal and to which defendant has had no opportunity to respond. In People v. Givens , 237 Ill. 2d 311, 343 Ill.Dec. 146, 934 N.E.2d 470 (2010), our supreme court observed:

" 'In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. [Citation.] But as a general rule, "[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." [Citation.] As cogently explained:
"[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do * * *." [Citation.]' "
Id. at 323-24, 343 Ill.Dec. 146, 934 N.E.2d 470 (quoting Greenlaw v. United States , 554 U.S. 237, 243-44, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ).

¶ 17 For the foregoing reasons, the judgment of the circuit court of Winnebago County is affirmed.

¶ 18 Affirmed.

Justice Jorgensen concurred in the judgment and opinion.

Justice Spence dissented, with opinion.

¶ 19 JUSTICE SPENCE, dissenting:

¶ 20 I respectfully dissent. Although I agree with the majority that the warrant did not state with particularity the items to be seized, the complaint for a search warrant and the affidavit did describe those items. I believe that the warrant sufficiently incorporated the complaint by reference and that the complaint in turn incorporated the affidavit. Moreover, I do not believe that the errors made here are of the type that should result in suppressing otherwise admissible evidence of murder.

¶ 21 The entire search-warrant paperwork consisted of five pages: a one-page complaint for a search warrant, a three-page affidavit accompanying the complaint, and a one-page search warrant. As noted by the majority, the one-page complaint for a search warrant began by listing certain items to be seized that would be pertinent to a narcotics investigation but not relevant to the murder investigation that Detective Schroder was conducting. See supra ¶ 2. In the middle of this list of narcotics evidence were the items that pertained to the murder investigation: "broom handles, bludgeons, wooden handles, extension cords, ropes, [and] belts." After listing those six items, the list of items common to drug dealing resumed, and the complaint then referred to "the premises located at 2204 Van Wie Avenue, Rockford, Illinois ." (Emphasis in original.) The complaint concluded with the language: "That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein."

¶ 22 The one-page search warrant provided the correct address. The list of items to be seized was identical to the list on the complaint for a search warrant, except that it did not contain the six items related to the murder investigation. The search warrant also contained language incorporating the complaint for a search warrant: "Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place."

¶ 23 The three-page affidavit accompanying the complaint and the search warrant clearly set forth the details that supported probable cause to search the premises, including the following: that police were called to Rockford Memorial Hospital regarding a deceased woman whom the fire department transported from her residence (2204 Van Wie Avenue, Rockford) to the hospital, that the seven-year-old granddaughter of the victim and defendant had witnessed defendant beating the victim with a broomstick and throwing her into the walls, that the victim had multiple abrasions and bruises about her body, that family members said that there had been "a lot of domestic violence" between the defendant and the victim, that the victim had been deceased for about eight hours, and that the coroner's office had conducted an autopsy of the victim and had "declared this incident a Murder."

¶ 24 The items that the police later collected pursuant to the search warrant included broom and mop heads and handles, hair, a leather belt, and bloody and ripped clothing. This evidence was consistent with the items described in the complaint and with the murder investigation.

¶ 25 Citing People v. Mabry , 304 Ill. App. 3d 61, 66-67, 237 Ill.Dec. 824, 710 N.E.2d 454 (1999), the majority argues that we will not "use the mere fact that the police requested a warrant to search [for particular items] to infer that the issuing judge found probable cause to authorize a search [for those items], despite the sheer absence of any language to that effect in the warrant itself." (Internal quotation marks omitted.) Supra ¶ 13. However, the State has argued that a warrant may incorporate a complaint and an affidavit, and the State's position is supported by case law. People v. Fragoso , 68 Ill. App. 3d 428, 433, 25 Ill.Dec. 138, 386 N.E.2d 409 (1979) (information in affidavit may be used to clarify the description in the warrant "where the affidavit is attached to the warrant, incorporated by reference, or * * * where the officer who signed and swore to the affidavit also executed the search warrant"). In my view, the language in the search warrant was sufficient to incorporate by reference the complaint, and the language in the complaint was sufficient to incorporate the affidavit. These documents, when read together and in context, were sufficient to satisfy the requirements imposed by the fourth amendment. Further, although Detective Schroder did not leave the complaint or the affidavit at the scene of the search, I agree with the reasoning of the cases that conclude that the Constitution does not impose such a requirement. See supra ¶ 12.

¶ 26 The majority cites an approximately 50-year-old case, People v. Staes , 92 Ill. App. 2d 156, 157-58, 235 N.E.2d 882 (1968), in holding that, even if incorporation by reference would have been possible here, the search warrant's language did not sufficiently incorporate the complaint. See supra ¶ 14. That case stated that the "complaint was [not] incorporated * * * by proper reference," without discussing precisely how the language was deficient. Staes , 92 Ill. App. 2d at 161, 235 N.E.2d 882. Moreover, I believe that, rather than relying so heavily on a decades-old case, our analysis should be guided by the United States Supreme Court's more recent discussion of this issue in Groh v. Ramirez , 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), and cases interpreting Groh .

¶ 27 In Groh , the issue was whether the search of a ranch was unreasonable under the fourth amendment because the warrant failed to particularly describe the items to be seized. Id. at 553, 124 S.Ct. 1284. In place of the items to be seized, the affiant had typed the description of the residence to be searched. Id. at 554-55, 124 S.Ct. 1284. The application for a search warrant was supported by a detailed affidavit. Id. at 554, 124 S.Ct. 1284. The documents were presented to a magistrate along with a search warrant, which the magistrate signed. Id. The United States Supreme Court found that the search was unreasonable because the search warrant failed to identify any items to be seized. The warrant also did not incorporate by reference the itemized list contained in the application. Id. at 557, 124 S.Ct. 1284.

¶ 28 Groh was distinguished by State v. Maxwell , 2009-1359 (La. App. 1 Cir. 5/10/10), 38 So.3d 1086, which is similar to the case before us. In Maxwell , the defendant's computer was seized after a computer repair shop found that it contained child pornography. Id. at 2. The police then seized additional computers from the defendant's residence, pursuant to a search warrant. Id. The defendant argued that the search warrant was defective because it failed to describe the items to be seized. Id. The trial court ultimately suppressed the evidence, based on Groh , finding that only a copy of the warrant and not the affidavit had been given to the defendant at the time of the search. Id . at 4.

¶ 29 The appellate court reversed the trial court's ruling. Id. at 12. It distinguished Groh , finding that the application of the exclusionary rule was never at issue in Groh , because no evidence was discovered during that search. Id. at 8. Importantly, Groh was a civil proceeding in which the owners of the ranch sued for civil damages against the federal and county law enforcement agents who searched their property. Id. at 8-9. The focus of Groh was whether an officer who conducted a search under those circumstances was entitled to claim that he was operating in good faith, so as to avoid civil liability. Id. The Maxwell warrant did not contain a description of items to be seized, but it did refer back to an affidavit that sufficiently described the items that were sought. Id. at 9. The court noted that the affidavit was later made available to the defendant. Id.

¶ 30 Although Maxwell is not controlling authority, I find its reasoning persuasive. See People v. Holt , 2013 IL App (2d) 120476, ¶ 10, 376 Ill.Dec. 223, 998 N.E.2d 933 (the decisions of foreign courts are not binding, but we may use them as persuasive authority where Illinois authority on point is lacking or absent). Like the warrant in Maxwell , the warrant in this case did not contain a description of the items to be seized related to the murder investigation, but it did refer back to Detective Schroder's complaint, which sufficiently described the items sought and incorporated a detailed affidavit, and the complaint and the affidavit were later made available to defendant.

¶ 31 Additionally, this is not a case where the exclusionary rule should be applied, as there was no police misconduct in this case. "Exclusion exacts a heavy toll on both the judicial system and society at large." Davis v. United States , 564 U.S. 229, 237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). "It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence." Id. The Court in Davis stated that, "[w]hen the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs." Id. at 238, 131 S.Ct. 2419. Conversely, when the police have an objectively reasonable good-faith belief that their conduct is lawful, exclusion is not warranted. Id. Davis referenced United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), where the Court held that the exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on a search warrant later held invalid. Davis , 564 U.S. at 238-39, 131 S.Ct. 2419. The Court stated that "[t]he error in such a case rests with the issuing magistrate, not the police officer, and 'punish[ing] the errors of judges' is not the office of the exclusionary rule." Id. at 239, 131 S.Ct. 2419 (quoting Leon , 468 U.S. at 916, 104 S.Ct. 3405 ).

¶ 32 Although Detective Schroder might have acted in haste, a sense of urgency in trying to obtain and execute a search warrant to seize the evidence in an apparent domestic murder is understandable. In trying to be efficient, Detective Schroder copied and pasted text from another search warrant. While this was perhaps careless, there is absolutely no evidence that he was reckless or that he in any way was indifferent to or flagrantly disregarded defendant's fourth amendment rights. Clearly, he was attempting to follow the law by drafting a search warrant. He set forth the relevant facts to establish probable cause. He specifically listed the items to be seized on one of the five pages comprising the complaint, affidavit, and search warrant. He included the correct address on multiple pages. He took the search warrant to a supervisor in the State's Attorney's office, who reviewed and approved it. He took it to a judge, who reviewed and approved it.

¶ 33 Should the errors have been detected? Of course. One would expect that the prosecutor and the judge would have observed the errors. But they did not. Now, with these facts, we have to ask whether they are of such a nature that they should result in the exclusion of the evidence recovered from the crime scene. "No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused." 725 ILCS 5/108-14 (West 2014) ; see also Mabry , 304 Ill. App. 3d at 64, 237 Ill.Dec. 824, 710 N.E.2d 454 ("an otherwise valid warrant will not be quashed due to technical errors not affecting the substantial rights of a defendant"). The mistakes here were essentially technical errors that should not result in the suppression of relevant and otherwise admissible evidence. I would reverse the trial court's ruling.

      On appeal, the State does not assert that the good-faith exception to the exclusionary rule applies. However, we should not overlook the body of law that set forth the purpose of the exclusionary rule.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnest Maurice BELL, Defendant-Appellant.
    No. 4-15-1016
    Appellate Court of Illinois, Fourth District.
    Filed March 30, 2018 Rehearing denied April 24, 2018
    Michael J. Pelletier, Patricia Mysza, and Ashlee Patterson, of State Appellate Defender's Office, of Chicago, for appellant.
    Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 Following a September 2015 bench trial, defendant, Earnest Maurice Bell, was convicted of two counts of unlawful delivery of a controlled substance within 1000 feet of a church, two counts of unlawful delivery of a controlled substance, one count of possession of a controlled substance with the intent to deliver within 1000 feet of a church, and one count of unlawful possession of a controlled substance with the intent to deliver and sentenced to three concurrent terms of 22 years' imprisonment. In October 2015, defendant filed a pro se motion alleging, in part, he was provided ineffective assistance by his trial counsel. At a December 2015 hearing, the trial court did not inquire into defendant's complaint about his counsel's performance.

¶ 2 Defendant appeals, arguing this court should (1) remand the matter because the trial court failed to conduct an inquiry into his pro se posttrial claim of ineffective assistance of counsel; (2) remand for a new trial and fitness hearing because the court failed to sua sponte order, and/or his trial counsel provided ineffective assistance by failing to request, a fitness evaluation when a bona fide doubt existed as to his fitness at the time of trial; (3) remand for a new trial because his right to due process and his right to confront witnesses were violated when his trial was held without him; (4) reverse his convictions for possession with intent to deliver because the State failed to prove beyond a reasonable doubt he had either actual or constructive possession of the discovered drugs; and (5) reduce his sentence or remand for a new sentencing hearing because his sentence is excessive in light of his mental illness and history of drug addiction.

¶ 3 Under People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and its progeny, we remand the matter for the trial court to conduct an inquiry into defendant's pro se posttrial claim of ineffective assistance of counsel. As a result, we do not reach defendant's other claims.

¶ 4 I. BACKGROUND

¶ 5 A. Indictment

¶ 6 In June 2014, the State charged defendant by indictment with unlawful delivery of a controlled substance within 1000 feet of a church ( 720 ILCS 570/407(b)(2) (West 2012) ) (count I), unlawful delivery of a controlled substance (id. § 401(d) ) (count II), unlawful delivery of a controlled substance within 1000 feet of a church (id. § 407(b)(1) ) (count III), unlawful delivery of a controlled substance (id. § 401(c)(2) ) (count IV), unlawful delivery of a controlled substance within 1000 feet of a church (id. § 407(b)(1) ) (count V), unlawful delivery of a controlled substance (id. § 401(c)(2) ) (count VI), unlawful possession of a controlled substance with the intent to deliver within 1000 feet of a church (id. § 407(b)(1) ) (count VII), and unlawful possession of a controlled substance with the intent to deliver (id. § 401(c)(2) ) (count VIII). The State later nol-prossed counts I and II.

¶ 7 B. Bench Trial

¶ 8 On September 11, 2015, the trial court held a scheduled bench trial. Prior to commencing the trial, the court held a discussion on the record with defense counsel and the prosecuting attorney. Defendant was not present but rather remained in a holding cell. Defense counsel indicated defendant was "agitated," "very upset," and "expressed that he was going to hurt himself" because counsel was unwilling to present a defense that counsel found to have no basis in law. The court elicited comment from the supervising sergeant of court security, who explained defendant was "hitting the walls," "kicking the door," "demanding to go downstairs back to the jail," and "saying he's not coming into the courtroom." The court indicated it would recess to allow defense counsel to speak with defendant about his right to be present during trial.

¶ 9 After speaking with defendant, defense counsel returned to the courtroom, and the trial court continued a discussion on the record. Defendant remained in a holding cell. Defense counsel indicated he explained to defendant his right to be present at trial, to which defendant "repeatedly said he didn't understand and he intended to harm himself." Defense counsel noted defendant's agitation began that morning after counsel refused defendant's request to present a "police misconduct defense." The prosecutor noted defendant had not acted out in court previously and had no jail disciplinary reports. Defense counsel further noted defendant had "always been civil up until this morning." The supervising sergeant noted he witnessed defendant with defense counsel and saw defendant knot a shirt around his own neck and attempt to flush the shirt in a toilet. The court found it would be appropriate for it to take additional measures to explain to defendant, on the record, of his right to be present at trial.

¶ 10 The trial court convened a hearing outside the holding cell with defense counsel, the prosecuting attorney, defendant, a court reporter, and court security. The court explained to defendant why he was going to trial and his right to be present, to which defendant maintained he did not understand. Defendant asserted "[t]he police department is trying to set me up" and "trying to kill me." Defendant repeatedly stated he did not understand why he was being charged and why he was going to trial. Defendant then sat on the floor in the back of the holding cell and refused to answer the court's question about waiving his right to be present at trial. The court found defendant had been fully admonished regarding his right to be present during his trial and his inappropriate behavior constituted a waiver of that right.

¶ 11 Back in the courtroom, the trial court continued the discussion on the record. With respect to the need for a fitness hearing, the court noted it had "numerous occasions" to interact with defendant during the case. The court found it did not have a bona fide doubt as to defendant's fitness. It believed "defendant is simply being uncooperative, and for whatever reason[,] he has chosen to do so." Defense counsel noted he and defendant had communicated "very well" and defendant became agitated only after their disagreement that morning. Defense counsel believed defendant was "fit to stand trial," and he "detected nothing to indicate" defendant did not understand the questions posed from counsel or the court. The prosecutor also noted defendant had been "polite and respectful" when receiving discovery while previously pro se .

¶ 12 The trial court conducted defendant's bench trial in his absence. After the State presented its case in chief, the court requested defense counsel to again speak with defendant about being present and testifying. Defense counsel discussed the matter with the supervising sergeant, who discussed the matter with defendant and then related to defense counsel that defendant continued to refuse to appear in court. The defense rested without presenting any evidence.

¶ 13 Following closing arguments, the trial court found defendant guilty of counts III through VIII.

¶ 14 C. Sentencing

¶ 15 On September 28, 2015, the trial court held a sentencing hearing. Defendant appeared in custody with defense counsel. The court merged count IV into count III, count VI into count V, and count VIII into count VII. It then sentenced defendant to three concurrent terms of 22 years' imprisonment.

¶ 16 D. Motion To Reconsider Sentence

¶ 17 On September 30, 2015, defendant, through counsel, filed a motion to reconsider his sentence, which asserted the sentence was excessive.

¶ 18 E. Pro Se Motion

¶ 19 On October 1, 2015, defendant filed a pro se motion, titled "MOTION OF LEAVE APPEAL." In his motion, defendant alleged, in part, as follows:

"THE DEFENDANT WAS DENIED CONSTITUTION RIGHT 6TH AMENDMENT RIGHT TO PUBLIC FAIR TRAIL. EFFECTIVE ASSISTANCE OF COUNSEL ATTORNEY."

Defendant requested the trial court grant his motion and "RETRACT GUILTY VERDICT."

¶ 20 F. Hearing on Defendant's Motion To Reconsider

¶ 21 In December 2015, the trial court held a hearing on defendant's motion to reconsider. After considering the arguments presented, the court denied defendant's motion. The court did not conduct an inquiry into defendant's pro se complaint about his counsel's performance.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal, defendant argues this court should (1) remand the matter because the trial court failed to conduct an inquiry into his pro se posttrial claim of ineffective assistance of counsel; (2) remand for a new trial and fitness hearing because the court failed to sua sponte order, and/or his trial counsel provided ineffective assistance by failing to request, a fitness evaluation when a bona fide doubt existed as to his fitness at the time of trial; (3) remand for a new trial because his right to due process and his right to confront witnesses were violated when his trial was held without him; (4) reverse his convictions for possession with intent to deliver because the State failed to prove beyond a reasonable doubt he had either actual or constructive possession of the discovered drugs; and (5) reduce his sentence or remand for a new sentencing hearing because his sentence is excessive in light of his mental illness and history of drug addiction.

¶ 25 A. Jurisdiction

¶ 26 As an initial matter, the State asserts we are without jurisdiction to address defendant's arguments. The State first recites the posttrial events, noting, in part, (1) "defendant filed a pro se motion directed against the judgment that alleged a denial of his right to effective assistance of counsel," and (2) "the trial court did not dispose of defendant's pro se posttrial motion." The State then argues as follows:

"In these circumstances, the notice of appeal filed on December 23, 2015, was premature under [Illinois] Supreme Court Rule 606(b) [ (eff. Dec. 11, 2014) ]. [Record citation.] See [ People v. Willoughby , 362 Ill. App. 3d 480, 484-85, 298 Ill.Dec. 690, 840 N.E.2d 803, 807 (2005) ] (finding notice of appeal to be premature because motion for new trial was never disposed and no affirmative indication existed that the motion was abandoned apart from the filing of the notice of appeal). This court should not follow [ People v. Rucker , 346 Ill. App. 3d 873, 883-84, 280 Ill.Dec. 801, 803 N.E.2d 31, 38-39 (2003) ], which found that a pro se postjudgment motion 'had no effect' on jurisdiction where the pro se postjudgment motion failed to provide 'any supporting facts or specific claims of ineffectiveness.' The Supreme Court of Illinois disavowed Rucker by adopting the position that a defendant may make an 'express' claim of ineffective assistance of counsel in a pro se posttrial motion without including specific examples, factual allegations, or additional support. People v. Ayres , 2017 IL 120071, ¶¶ 9, 14, 16, 18, 22[ 417 Ill.Dec. 580, 88 N.E.3d 732]."

In effect, the State asserts, under Rule 606(b), defendant's notice of appeal was premature and this court lacks jurisdiction because the trial court has not disposed of defendant's pending pro se posttrial motion.

¶ 27 The State suggests the circumstances presented are similar to those in Willoughby . In that case, defense counsel filed a timely motion for a new trial, which the trial court failed to address. Willoughby , 362 Ill. App. 3d at 481, 298 Ill.Dec. 690, 840 N.E.2d 803. The Second District concluded, under Rule 606(b), the defendant's notice of appeal was premature and it lacked jurisdiction because the trial court had not disposed of the timely posttrial motion directed against the judgment. Id. at 482, 298 Ill.Dec. 690, 840 N.E.2d 803. In the instant case defendant, as opposed to defense counsel, filed the pending posttrial motion. The State fails to address the import of this distinction.

¶ 28 It has long been held a defendant has no authority to file pro se motions when he or she is represented by counsel. See People v. Handy , 278 Ill. App. 3d 829, 836, 216 Ill.Dec. 114, 664 N.E.2d 1042, 1046 (1996) ; People v. Neal , 286 Ill. App. 3d 353, 355, 221 Ill.Dec. 223, 675 N.E.2d 130, 131 (1996) ; People v. James , 362 Ill. App. 3d 1202, 1205, 299 Ill.Dec. 377, 841 N.E.2d 1109, 1113 (2006) ; People v. Hampton , 2011 IL App (4th) 100219, ¶¶ 11-13, 355 Ill.Dec. 425, 959 N.E.2d 1158. "A defendant has the right to proceed either pro se or through counsel; he has no right to some sort of hybrid representation whereby he would receive the services of counsel and still be permitted to file pro se motions." People v. Stevenson , 2011 IL App (1st) 093413, ¶ 30, 355 Ill.Dec. 857, 960 N.E.2d 739. A trial court should not consider pro se motions filed by defendants who are represented by counsel. Hampton , 2011 IL App (4th) 100219, ¶¶ 11-13, 355 Ill.Dec. 425, 959 N.E.2d 1158. The only exception is where a defendant's pro se motion is directed against his or her counsel's performance. Id. ¶ 12. That exception stems from a line of cases beginning with Krankel .

¶ 29 In Rucker , 346 Ill. App. 3d at 883, 280 Ill.Dec. 801, 803 N.E.2d 31, the First District stated it was tasked with determining "whether [the defendant's] pro se motion for reduction of sentence adequately raised an issue of ineffective assistance of counsel, in which case it would be an exception to the general rule that defendants are not entitled to file pro se motions while represented by counsel and, under Rule 606, would make the notice of appeal ineffective ." (Emphasis added.) The court found the defendant's motion failed to sufficiently raise an issue of ineffective assistance where it simply asserted he " 'had inadequate representation by counsel,' without providing any supporting facts or specific claims of ineffectiveness." Id. The court concluded: "Thus, [the defendant's] pro se motion for reduction of sentence had no effect on the notice of appeal under Rule 606, and we have jurisdiction." Id. at 884, 280 Ill.Dec. 801, 803 N.E.2d 31.

¶ 30 The State correctly points out our supreme court has disavowed Rucker to the extent it found an express claim of ineffective assistance alone is insufficient to raise an issue of ineffective assistance. See Ayres , 2017 IL 120071, ¶¶ 14-24, 417 Ill.Dec. 580, 88 N.E.3d 732. While the State broadly asserts we should not follow Rucker , it implicitly asserts we should accept the suggestion in Rucker indicating a pro se posttrial motion adequately raising a claim of ineffective assistance of counsel would make a notice of appeal ineffective under Rule 606(b) and divest this court of jurisdiction. We decline to do so.

¶ 31 "A reviewing court has an independent duty to consider issues of jurisdiction, regardless of whether either party has raised them." People v. Smith , 228 Ill. 2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053, 1058 (2008). Since Rucker was decided, no court has found a trial court's failure to dispose of a pro se motion adequately raising a claim of ineffective assistance renders a notice of appeal premature or ineffective. In fact, the opposite is true. In both People v. Patrick , 2011 IL 111666, ¶ 13, 355 Ill.Dec. 943, 960 N.E.2d 1114, and Ayres , 2017 IL 120071, ¶ 6, 417 Ill.Dec. 580, 88 N.E.3d 732, the defendants filed pro se posttrial motions raising claims of ineffective assistance of counsel, which the trial courts failed to consider. In each case, the supreme court addressed the merits of whether the trial courts erred in failing to conduct an inquiry into the defendants' pro se posttrial claims of ineffective assistance. Patrick , 2011 IL 111666, ¶¶ 28-43, 355 Ill.Dec. 943, 960 N.E.2d 1114 ; Ayres , 2017 IL 120071, ¶¶ 9-24, 417 Ill.Dec. 580, 88 N.E.3d 732. In fact, in Patrick the supreme court considered and rejected an argument suggesting the appellate court lacked jurisdiction to review the defendant's pro se motion. Patrick , 2011 IL 111666, ¶¶ 19-27, 355 Ill.Dec. 943, 960 N.E.2d 1114. In both cases, the supreme court found the cause must be remanded due to the trial court's failure to conduct the necessary inquiry. Patrick , 2011 IL 111666, ¶ 45, 355 Ill.Dec. 943, 960 N.E.2d 1114 ; Ayres , 2017 IL 120071, ¶ 26, 417 Ill.Dec. 580, 88 N.E.3d 732.

¶ 32 The exception for allowing a defendant to file a pro se posttrial motion raising a claim of ineffective assistance of counsel while represented by counsel has evolved as a matter of common law. Ayres , 2017 IL 120071, ¶ 11, 417 Ill.Dec. 580, 88 N.E.3d 732. In Patrick , 2011 IL 111666, ¶¶ 28-30, 355 Ill.Dec. 943, 960 N.E.2d 1114, the supreme court rejected the State's argument suggesting section 116-1(b) of the Code of Criminal Procedure ( 725 ILCS 5/116-1(b) (West 2006) ) required defendants to file a pro se motion raising a claim of ineffective assistance within 30 days after the entry of the guilty verdict. The court stated:

"[T]he State's attempt to graft the statutory requirement in section 116-1(b) onto a common law remedy is fundamentally flawed. A pro se posttrial motion alleging ineffective assistance of counsel is not a new trial motion as outlined in section 116-1. Rather, it is part of a separate common law procedure developed in a line of cases beginning with Krankel ." Patrick , 2011 IL 111666, ¶ 30, 355 Ill.Dec. 943, 960 N.E.2d 1114.

Like Patrick , we reject the State's application of Rule 606(b) onto the common-law procedure developed by Krankel and its progeny. Rule 606(b) provides: "When a timely posttrial or postsentencing motion directed against the judgment has been filed by counsel or by defendant, if not represented by counsel, any notice of appeal filed before the entry of the order disposing of all pending postjudgment motions shall have no effect and shall be stricken by the trial court." Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014). Rule 606(b) discusses the impact of the filing of a posttrial motion "by counsel or by defendant, if not represented by counsel," on a notice of appeal. Id. It does not consider the common-law procedure for the filing of pro se motions while represented by counsel. We find Rule 606(b) was not intended to constrain our jurisdiction under these circumstances. We have jurisdiction.

¶ 33 B. Preliminary Krankel Inquiry

¶ 34 Defendant argues this court should remand the matter because the trial court failed to conduct an inquiry into his pro se posttrial claim of ineffective assistance of counsel. The State concedes defendant's claim was sufficient to trigger the court's duty to conduct a preliminary inquiry and its failure to do so requires this court to remand the matter.

¶ 35 Under Krankel and its progeny, when a defendant raises a pro se posttrial claim of ineffective assistance, the trial court must conduct an inquiry into the factual basis of the defendant's claim to determine whether new counsel should be appointed to assist the defendant. See Krankel , 102 Ill. 2d at 189, 80 Ill.Dec. 62, 464 N.E.2d 1045 ; People v. Johnson , 159 Ill. 2d 97, 126, 201 Ill.Dec. 53, 636 N.E.2d 485, 498 (1994) ; People v. Moore , 207 Ill. 2d 68, 77-78, 278 Ill.Dec. 36, 797 N.E.2d 631, 637 (2003). In conducting its inquiry, the court may (1) ask defense counsel to "answer questions and explain the facts and circumstances" relating to the claim, (2) briefly discuss the claim with the defendant, or (3) evaluate the claim based on "its knowledge of defense counsel's performance at trial" as well as "the insufficiency of the defendant's allegations on their face." Moore , 207 Ill. 2d at 78-79, 278 Ill.Dec. 36, 797 N.E.2d 631. Where the court's inquiry discloses a "possible neglect of the case," it should appoint new counsel to independently investigate and represent the defendant at a separate hearing. Id. at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. If, on the other hand, the court determines the claim "lacks merit or pertains only to matters of trial strategy," the court may deny the claim without appointing new counsel. Id.

¶ 36 Here, the trial court did not conduct an inquiry into defendant's complaints about his counsel's performance. Therefore, the only question-a question of law subject to de novo review-is whether the allegations in defendant's pro se posttrial motion were sufficient to trigger the court's duty to conduct such an inquiry. People v. Taylor , 237 Ill. 2d 68, 75-76, 340 Ill.Dec. 161, 927 N.E.2d 1172, 1176 (2010). In his pro se posttrial motion, defendant explicitly alleged he was denied the "EFFECTIVE ASSISTANCE OF COUNSEL." As previously indicated, our supreme court has found an express allegation of ineffective assistance of counsel is sufficient to trigger a trial court's duty to conduct a preliminary Krankel inquiry. Ayres , 2017 IL 120071, ¶ 18, 417 Ill.Dec. 580, 88 N.E.3d 732. We accept the State's concession and find the allegation in defendant's pro se posttrial motion was sufficient to trigger the court's duty to conduct a preliminary Krankel inquiry. Because the trial court failed to conduct an inquiry into defendant's claim of ineffective assistance of counsel, the matter must be remanded. See Patrick , 2011 IL 111666, ¶ 43, 355 Ill.Dec. 943, 960 N.E.2d 1114 (remanding where the trial court failed to conduct a necessary preliminary Krankel inquiry).

¶ 37 As the matter must be remanded to allow the trial court to conduct a preliminary Krankel inquiry, we decline to address defendant's other claims on appeal. See Ayres , 2017 IL 120071, ¶ 13, 417 Ill.Dec. 580, 88 N.E.3d 732 ("[T]he goal of any Krankel proceeding is to facilitate the trial court's full consideration of a defendant's pro se claim and thereby potentially limit issues on appeal."). Depending on the result of the preliminary Krankel inquiry, defendant's other claims may become moot. We direct appellate counsel to provide copies of their briefs to the trial attorneys and trial court in this case.

¶ 38 III. CONCLUSION

¶ 39 We remand for the trial court to conduct an inquiry into defendant's pro se posttrial claim of ineffective assistance of counsel.

¶ 40 Remanded with directions.

Justices Holder White and Turner concurred in the judgment and opinion.


text:
    ILLINOIS MUNICIPAL LEAGUE RISK MANAGEMENT ASSOCIATION, Plaintiff-Appellee, v. CITY OF COLLINSVILLE, Illinois, an Illinois Municipal Corporation, and Mark Schmidt, Defendants
    (City of Collinsville, Illinois, Defendant-Appellant).
    NO. 4-17-0015
    Appellate Court of Illinois, Fourth District.
    Filed March 30, 2018
    Steven Giacoletto, of Giacoletto Law Firm, of Collinsville, for appellant.
    Mitchell A. Orpett and David E. Schroeder, of Tribler Orpett & Meyer, P.C., of Chicago, for appellee.
   JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 Defendant, the City of Collinsville, Illinois, an Illinois municipal corporation (City), appeals from the trial court's order granting summary judgment in favor of plaintiff, the Illinois Municipal League Risk Management Association (Association). On appeal, the City argues the trial court erred in finding the Association had no obligation to defend or indemnify it against claims asserted in Madison County case No. 11-L-1306. We disagree and affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Complaint for Declaratory Judgment

¶ 4 In March 2012, the Association filed a complaint for declaratory judgment under section 2-701 of the Code of Civil Procedure ( 735 ILCS 5/2-701 West 2010) ), which it later amended. The amended complaint was filed against the City and Mark Schmidt. Schmidt is not a party to this appeal. In its amended complaint, the Association sought a declaration providing it had no obligation to defend or indemnify the City against claims asserted in Madison County case No. 11-L-1306.

¶ 5 1. Madison County Case No. 11-L-1306

¶ 6 The pertinent facts of Madison County case No. 11-L-1306 are not in dispute. Schmidt, on both behalf of himself and a putative class (the plaintiffs), filed a complaint against the City relating to the enforcement of a local ordinance. The ordinance required an individual whose vehicle has been towed and impounded in connection with certain criminal offenses to pay a $500 administrative fee to the City prior to obtaining the release of his or her impounded vehicle. The plaintiffs argued the ordinance violated their due process rights because the administrative fee was not related to the costs of services provided and served no rational purpose. They requested the trial court to "award the return of all monies received by [the City] to date and to the time of trial in this cause via assessment of the [a]dministrative [f]ee, award costs of suit[,] and for all other relief to which [the plaintiffs] may be entitled." See generally Carter v. City of Alton , 2015 IL App (5th) 130544, 392 Ill.Dec. 553, 32 N.E.3d 1129 (reversing the trial court's dismissal of plaintiffs' complaint and remanding for further proceedings).

¶ 7 As part of their request for class certification, the plaintiffs asserted certain common questions of law and fact existed, including whether (1) the administrative fee violated their due process or other constitutional rights, (2) injunctive or declaratory relief was proper, and (3) the City willfully and wantonly instituted the administrative fee. The plaintiffs also asserted class certification was proper, as each individual "claim * * * [was] relatively small, so that individual litigation [was] not economically feasible[,] [and the City] derive[d] enormous aggregate profits from depriving [them] of the amount of [$500] each."

¶ 8 2. Coverage Grants

¶ 9 The Association had issued to the City certain "coverage grants," which undisputedly were effective during the period the plaintiffs' alleged injuries occurred. The coverage grants provided the City with different types of liability coverage. The coverage grants are separated into parts. The following parts, and their contents, are relevant to this appeal.

¶ 10 Part "RMA 1" provides general liability coverage. It provides: "The Association will pay on behalf of the Members [ (City) ] all sums which the Members [ (City) ] shall become legally obligated to pay as damages, defined as 'ultimate net loss', because of 'bodily injury' or 'property damage' to which this form applies; caused by an 'occurrence' within the 'coverage territory'." Part RMA 1 sets forth specific exclusions to coverage. The exclusions primarily exclude coverage where the "bodily injury" or "property damage" arises from a particular situation, such as the use of an automobile owned by the City.

¶ 11 Several "endorsements" to part RMA 1 are contained in part "RMA 2." These endorsements extend coverage, subject to certain exclusions. Section VIII of part RMA 2 extends coverage to certain violations of an individual's civil or constitutional rights. It provides in part: "The Association will pay on behalf of the Members [ (City) ] all sums which the Members [ (City) ] shall become legally obligated to pay, defined as 'ultimate net loss', because of: (1) 'bodily injury', 'property damage', 'personal injury'[,] or 'advertising injury' arising out of a violation of civil or constitutional rights * * * but only if such damages are sought in a civil suit brought under one or more of the following civil rights statutes: United States Code Title 42 §§ 1981, 1982, 1983, 1985 [,] or 1986[.]"

¶ 12 Additional endorsements to parts RMA 1 and RMA 2 are contained in part "RMA 3." These endorsements set forth further exclusions to coverage provided by parts RMA 1 and RMA 2. Similar to the exclusions set forth in part RMA 1, the exclusions in part RMA 3 exclude coverage primarily where the "bodily injury" or "property damage" arises from a particular situation, such as the use of a gas plant.

¶ 13 Parts RMA 1, RMA 2, and RMA 3 are subject to the definitions provided in part "RMA L." Part RMA L defines an "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in 'bodily injury', 'property damage'[,] or other covered damages neither expected nor intended from the standpoint of the Members [ (City) ] involved[.]" Part RMA L defines "property damage" as "(1) physical injury to or destruction of tangible property which occurs during the 'coverage period', including the loss of use thereof at any time resulting therefrom; or (2) loss of use of tangible property which has not been physically injured or destroyed, provided such loss of use is caused by an 'occurrence' during the 'coverage period'[.]"

¶ 14 Part "RMA 4" provides coverage for liability relating to certain acts committed by public officials and employees. It provides in part: "The Association will pay on behalf of the Member [ (City) ] all 'loss' which the Members [ (City) ] shall be legally obligated to pay because of a 'wrongful act' occurring during the 'coverage period'." Part RMA 4 provides definitions in addition to those in part RMA L. It defines "loss" as "any amount which the Member [ (City) ] is legally obligated to pay or which the Member [ (City) ] shall be required by law to pay as indemnity to the Members [ (City) ], for any claim or claims made against them for 'wrongful acts' and shall include but not be limited to: damages, judgments, settlements and costs[;] cost of investigation and defense of legal actions (excluding from such cost the salaries of officials or employees of the Member [ (City) ] or any other governmental body); claims of proceedings and appeals therefrom; cost of attachment or similar bonds; provided always, however, such subject of 'loss' shall not include: fines or penalties imposed by law; exemplary or punitive damages; that portion of a judgment whereby compensatory damages have been multiplied; or matters which may be deemed uninsurable under the law pursuant to which this form shall be construed." It defines "wrongful act" as "any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty by any Members [ (City) ][.]" Part RMA 4 sets forth specific exclusions to coverage. One of those exclusions provide: "The Association shall not be liable to make payments for 'loss' in connection with any claim made against the Members [ (City) ] based upon or arising out of or in any way related to * * * any violation of civil or constitutional rights."

¶ 15 B. Association's Amended Motion for Summary Judgment

¶ 16 In July 2016, the Association filed a motion for summary judgment, which it later amended. In its amended motion, the Association argued the City was not entitled to coverage as the claims made in Madison County case No. 11-L-1306 did not fit within the issued coverage grants. Specifically, as to the applicability of part RMA 1, the Association argued, in part, the City was not entitled to coverage, as the plaintiffs did not assert (1) they "suffered any physical injury to or destruction of any tangible property * * * or * * * loss of use of such property", or (2) "an accident [occurred] resulting in damages neither expected nor intended from the standpoint of the City." As to the applicability of section VIII of part RMA 2, the Association argued, in part, the City was not entitled to coverage, as the plaintiffs did not (1) assert they suffered "property damage," or (2) seek relief for an alleged violation of their constitutional rights under any of the covered civil rights statutes. Finally, as to the applicability of part RMA 4, the Association argued, in part, the City was not entitled to coverage as any alleged wrongful acts causing a violation of the plaintiffs' constitutional rights were explicitly excluded from coverage.

¶ 17 C. City's Response to the Association's Amended Motion for Summary Judgment

¶ 18 In October 2016, the City filed a response to the Association's amended motion for summary judgment. The City requested the trial court deny the Association's amended motion and order the Association to provide a defense and indemnification because it was entitled to coverage under part RMA 1 of the coverage grants. In asserting coverage existed under part RMA 1, the City specifically presented argument under the "loss of use" prong of the property damage provision-providing coverage where it is alleged the City caused a "loss of use of tangible property which has not been physically injured or destroyed." As to whether a "loss of use of tangible property" was alleged, the City simply asserted "[t]here can be little argument that the return of the money the plaintiffs seek in the underlying case is a form of 'tangible property' that can be touched, seen, smelled, tasted, weighed, and even written upon." As to whether an "occurrence" caused the loss of use of tangible property, the City argued an "accident," which was an undefined term that should be construed strictly against the Association, occurred, as the alleged injuries to the plaintiffs was neither expected nor intended. In making its "occurrence" argument, the City acknowledged it intended for the plaintiffs to pay the administrative fee in exchange for the release of their impounded vehicles but asserted it was not aware it may not have been legally authorized to charge such a fee and the underlying complaint contained no allegations suggesting the City intended to cause the alleged property damage.

¶ 19 D. The Association's Reply to the City's Response to Its Amended Motion for Summary Judgment

¶ 20 In November 2016, the Association filed a reply to the City's response to its amended motion for summary judgment. In its reply, the Association maintained the City was not entitled to coverage under part RMA 1 of the coverage grants because there was no "property damage" or "occurrence."

¶ 21 The Association argued there was no "property damage" as defined by the "loss of use" prong of the property damage provision because the plaintiffs did not allege (1) a loss of use (2) of tangible property. The Association asserted the claim against the City was for intangible, economic losses, as the plaintiffs were not seeking the return of the actual $500 in currency with which they paid the administrative fee but rather the exchange value of the $500 paid. The Association further asserted, even if the $500 paid for the administrative fee was tangible property, the plaintiffs did not claim a "loss of use" of such property. Rather, relying primarily on Collin v. American Empire Insurance Co. , 21 Cal.App.4th 787, 26 Cal.Rptr.2d 391 (1994), and Advanced Network, Inc. v. Peerless Insurance Co. , 190 Cal.App.4th 1054, 119 Cal.Rptr.3d 17 (2010), the Association argued the plaintiffs were seeking to recover only the monies of which they were permanently deprived by paying the nonrefundable administrative fee.

¶ 22 The Association argued there was no "occurrence" because the plaintiffs did not allege their injuries were caused by the City's accidental conduct. The Association asserted, in part, the natural and ordinary consequence of the passing of the ordinance was individuals paying the administrative fee to recover their automobiles. The Association further asserted whether the City knew or should have known the ordinance might be unconstitutional is irrelevant, as ignorance of the law was no excuse.

¶ 23 E. Hearing on the Association's Amended Motion for Summary Judgment

¶ 24 In December 2016, the trial court held a hearing on the Association's amended motion for summary judgment. The parties largely followed their written arguments. In part, the Association argued the plaintiffs were not seeking recovery for loss of use of the monies paid to satisfy the administrative fee but rather only the return of the value they actually paid. Conversely, the City suggested:

"[The] plaintiff[s'] concern is that they're saying they have lost their property, their $500; that they have been deprived of that money. They have been deprived of that money in their pocket. They have been deprived of the use of that money. They have been deprived of it, for lack of a better term, the interest."

¶ 25 After considering the arguments presented, the trial court granted the Association's amended motion for summary judgment, finding the Association had no obligation to defend or indemnify the City against the claims asserted in Madison County case No. 11-L-1306 under the coverage grants. By way of docket entry, the court indicated it found "[t]he damages sought in [Madison County case No. 11-L-1306] [were] not the loss of property damages as defined by the contract between [the Association] and the City."

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 On appeal, the City argues the trial court erred by awarding summary judgment in favor of the Association. Specifically, the City asserts the court erred by finding the Association had no obligation to defend or indemnify it against the claims asserted in Madison County case No. 11-L-1306 under part RMA 1 of the coverage grants.

¶ 29 Disposition by summary judgment is proper only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). While the City did not file a cross-motion for summary judgment, it agreed the case presented only questions of law and invited the trial court to decide these legal questions on the record presented. On appeal, the City does not assert summary judgment was improperly granted due to the existence of a disputed issue of material fact. Instead, the City contests the trial court's legal findings-its interpretation of the coverage grants-on which its decision to award summary judgment was based. We review the court's legal findings on which it based its decision to award summary judgment de novo and may affirm the court's judgment on any basis supported by the record, regardless of the court's reasoning. See Village of Bartonville v. Lopez , 2017 IL 120643, ¶ 34, 413 Ill.Dec. 34, 77 N.E.3d 639 ; Covinsky v. Hannah Marine Corp. , 388 Ill. App. 3d 478, 483, 328 Ill.Dec. 35, 903 N.E.2d 422, 426-27 (2009).

¶ 30 The City argues it is entitled to coverage under the "loss of use" prong of the property damage provision as applied to part RMA 1 of the coverage grants because the plaintiffs have alleged the loss of use of their tangible property caused by an occurrence. The Association disagrees, contending (1) the money the plaintiffs paid for the administrative fee is not tangible property, (2) the plaintiffs have not alleged the "loss of use" of their money, and (3) any injury was not caused by accident. To determine whether the City is entitled to coverage, we review both the language of the coverage grants as well as the allegations of the underlying complaint. Westfield Insurance Co. v. West Van Buren, LLC , 2016 IL App (1st) 140862, ¶ 13, 406 Ill.Dec. 99, 59 N.E.3d 877.

¶ 31 We turn first to the language of the coverage grants. Our primary objective in analyzing the coverage grants is to ascertain and give effect to the parties' intentions as expressed by the policy language, which we construe in its plain and ordinary meaning. Valley Forge Insurance Co. v. Swiderski Electronics, Inc. , 223 Ill. 2d 352, 362-63, 307 Ill.Dec. 653, 860 N.E.2d 307, 314 (2006). Like any contract, we construe the coverage grants as a whole, giving effect to every provision, if possible, as it is assumed every provision was intended to serve a purpose. Id. at 362, 307 Ill.Dec. 653, 860 N.E.2d 307.

¶ 32 Part RMA 1 provides: "The Association will pay on behalf of the Members [ (City) ] all sums which the Members [ (City) ] shall become legally obligated to pay as damages, defined as 'ultimate net loss', because of 'bodily injury' or 'property damage' to which this form applies; caused by an 'occurrence' within the 'coverage territory'." Part RMA L defines an "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in 'bodily injury', 'property damage'[,] or other covered damages neither expected nor intended from the standpoint of the Members [ (City) ] involved[.]" The "loss of use" prong of the property damage provision defines "property damage" as the "loss of use of tangible property which has not been physically injured or destroyed, provided such loss of use is caused by an 'occurrence' during the 'coverage period'[.]" The coverage grants do not define "accident" or "loss of use." While the coverage grants do not define "loss of use," part RMA 4 uses and defines the term "loss."

¶ 33 In its initial brief, the City does not address the argument the Association asserted in the trial court suggesting the terms "loss" and "loss of use" were not interchangeable. Instead, the City focuses its argument on whether the "loss of use" requires property to be injured or destroyed. As the Association points out, the City's argument misses the mark. The "loss of use" prong of the property damage provision specifically defines "property damage" as the "loss of use of tangible property which has not been physically injured or destroyed ." (Emphasis added.)

¶ 34 The Association maintains, relying primarily on Collin , 26 Cal.Rptr.2d at 408, and Advanced Network, Inc. , 119 Cal.Rptr.3d at 20-24, the terms "loss" and "loss of use" are not interchangeable. The Association asserts, where an owner of property alleges only a permanent deprivation of that property, the owner has not suffered a "loss of use." In its reply brief, the City does not disagree with the holdings of Collin and Advanced Network, Inc. but rather only contends they are inapplicable to the present case because the plaintiffs have suffered only a temporary loss of their property.

¶ 35 In Collin , 26 Cal.Rptr.2d at 408-09, the Second District of the California Court of Appeal was tasked with interpreting a "loss of use" provision of an insurance policy. The court held " '[l]oss of use' of property is different from 'loss' of property." Id. at 408. As an example, the court addressed the theft of an automobile: "The value of the 'loss of use' of the car is the rental value of a substitute vehicle; the value of the 'loss' of the car is its replacement cost." Id. at 409. Giving effect to the limiting words of the contract, the court found no coverage existed under the "loss of use" provision of the insurance policy because the damages sought related only to the value of the property lost. Id.

¶ 36 In Advanced Network, Inc. , 119 Cal.Rptr.3d at 23-26, the Fourth District of the California Court of Appeal interpreted a "loss of use" provision of an insurance policy. The court, following Collin and related cases adopting the holding of Collin , concluded the terms "loss of use" and "loss" were not interchangeable. Id. at 23-24. It found coverage for "loss of use" did not apply to an action in which the claimant sought only the replacement value of the property he or she lost. The court further found, while the "loss of use" provision of the insurance policy was not modified by the term " 'temporary,' " "the impermanent nature of 'loss of use' damages [was] implicit." Id. at 25.

¶ 37 We find the holdings of Collin and Advanced Network, Inc. , persuasive. At the core of these holdings, the courts merely follow those principles of contractual interpretation we previously addressed. That is, in construing a contract, we must give effect to the parties' intentions as expressed by the policy language as well as give effect to every contractual provision where possible. See Valley Forge Insurance Co. , 223 Ill. 2d at 362, 307 Ill.Dec. 653, 860 N.E.2d 307. The "loss of use" prong of the property damage provision defines "property damage" as the "loss of use of tangible property." (Emphasis added.) We must presume the use of the additional limiting language was intended to serve a purpose. Id. Reading the coverage grants as a whole, support for this presumption can be gleaned from the intentional use of the term "loss" rather than "loss of use" in part RMA 4. Under the plain and ordinary meaning of the language used in the coverage grants as well as the persuasive authority provided, we hold coverage is provided under the "loss of use" prong of the property damage provision as applied to part RMA 1 only where the damages sought relate to the impermanent nature of the injury sustained. To hold otherwise would be to decline to give effect to the words "of use" in the term "loss of use."

¶ 38 We turn next to the allegations of the underlying complaint to determine whether the plaintiffs have alleged a "loss of use" of their property. The City contends the plaintiffs asserted they "suffered a 'loss of use' of their money on a temporary basis, not as a permanent 'loss of use.' " At the hearing on the Association's amended motion for summary judgment, the City further suggested the plaintiffs asserted they lost the "interest" on their money. The Association disagrees, maintaining the plaintiffs asserted they were permanently deprived of their money by paying a nonrefundable administration fee and sought only the return of the value of those payments in damages.

¶ 39 We must construe the underlying complaint liberally, resolving all doubts in favor of coverage for the City. See Westfield Insurance Co. , 2016 IL App (1st) 140862, ¶ 12, 406 Ill.Dec. 99, 59 N.E.3d 877. The plaintiffs alleged the City's ordinance unlawfully required them to pay a $500 administrative fee to obtain their impounded vehicles. It is undisputed the $500 administrative fee was nonrefundable. By paying the nonrefundable administrative fee, each plaintiff was permanently deprived of his or her $500. The plaintiffs sought "the return of all monies received by [the City] to date and to the time of trial in this cause via assessment of the [a]dministrative [f]ee." In their request for class certification, the plaintiffs specifically asserted their claims for the amount of $500 per person made individual litigation economically infeasible. We conclude the City is not entitled to coverage, as the plaintiffs have not alleged a "loss of use" as defined by the "loss of use" prong of the property damage provision. See Advanced Network, Inc. , 190 Cal. App. 4th at 1064, 119 Cal.Rptr.3d 17 (finding the insured was not entitled to coverage under the "loss of use" provision because the stolen money was irretrievable and the underlying action sought only the replacement value of the money). Because the City has failed to show the plaintiffs have alleged a claim for "loss of use" under the "loss of use" prong of the property damage provision, we need not address the related issue of whether the plaintiffs have alleged a loss of use of "tangible property" or whether an "occurrence" occurred. Summary judgment was properly granted in favor of the Association.

¶ 40 As a final matter, we note the Association argued the City forfeited multiple contentions of error by failing to provide the trial court with supporting authority. In support of its forfeiture arguments, the Association cited an order filed under Illinois Supreme Court Rule 23 (eff. July 1, 2011). Such an order is not precedential and may not be cited by any party except in the limited circumstances allowed under Rule 23(e)(1). Accordingly, as it related to whether the plaintiffs alleged a claim for "loss of use" under the "loss of use" prong of the property damage provision, we declined to consider the Association's forfeiture argument.

¶ 41 III. CONCLUSION

¶ 42 We affirm the trial court's judgment.

¶ 43 Affirmed.

Justices Holder White and DeArmond concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus T. DIXON, Defendant-Appellant.
    Appeal No. 3-15-0630
    Appellate Court of Illinois, Third District.
    Opinion filed April 3, 2018
    Michael J. Pelletier, Peter A. Carusona, and Emily A. Koza, of State Appellate Defender's Office, of Ottawa, for appellant.
    John L. McGehee, State's Attorney, of Rock Island (Patrick Delfino, Lawrence M. Bauer, and Dawn Duffy, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The defendant, Marcus T. Dixon, appeals the denial of his postconviction petition at the second stage of postconviction proceedings. The defendant argues that his postconviction counsel failed to provide a reasonable level of assistance in that counsel failed to shape the defendant's pro se claims into proper legal form in the amended petition filed by counsel.

¶ 2 FACTS

¶ 3 Following a jury trial, the defendant was convicted of two counts of aggravated battery with a firearm ( 720 ILCS 5/12-4.2(a)(1) (West 2002) ). The court sentenced the defendant to 20 years' imprisonment on each count. On appeal, we affirmed the defendant's conviction. People v. Dixon , No. 3-03-0041 (2005) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 4 On January 25, 2006, the defendant filed a pro se postconviction petition. The defendant attached a signed, unnotarized affidavit to his petition describing the manner in which he was arrested. On January 31, 2006, the court appointed postconviction counsel for the defendant. Over the next five years, the court appointed three separate attorneys, and they each withdrew. On April 20, 2011, the court appointed the defendant's fourth and final postconviction attorney.

¶ 5 On January 2, 2015-nearly four years after his appointment-counsel filed an amended petition for postconviction relief. After setting forth the procedural history of the case, the amended petition stated:

"A. [The defendant's] Sixth Amendment right to effective assistance of counsel was violated by [trial counsel] for the following reasons:
1. Counsel failed to order a fitness evaluation of defendant prior to trial. [Citation.]
2. Counsel failed to investigate facts or interview witnesses prior to trial. [Citation.]
3. Counsel failed to file any pre-trial motions on the defendant's behalf.
4. Counsel failed to call witnesses at trial that would have corroborated the defendant's defense. [Citation.]
5. Counsel failed to file a motion to quash defendant's arrest when there were witnesses who would have provided testimony in support of such motion.
6. Counsel failed to impeach witnesses at trial when there were contradictory statements made. [Citation.]
B. [The defendant's] Sixth Amendment right to effective assistance of counsel was violated by appellate attorneys for the following reason:
1. Counsel failed to raise a claim of ineffective assistance of counsel against trial counsel for trial counsel's failure to strike for cause biased jurors.
C. [The defendant's] Sixth Amendment right to effective assistance of counsel was violated by post-trial [counsel] for the following reasons:
1. Counsel failed to prepare or investigate aggravation and mitigation evidence. [Citations.]
2. Counsel failed to object to the admission of false information during sentencing.
D. Furthermore, [the defendant's] Fourth and Fourteenth Amendment right to Due Process was violated for the following reasons:
1. The trial court denied funding to the defense for the use of expert witnesses that could have been used to bolster the defendant's defense. [Citations.]
2. The trial court allowed the State to call one or more witnesses at trial who were not disclosed to the defense prior to trial, in violation of the Illinois Supreme Court's rules of discovery. [Citation.]
3. The State did not disclose evidence of ballistic testing and labs prior to trial in violation of the Illinois Supreme Court's rules of discovery. [Citation.]
4. The State presented deceptive, false, and misleading testimony at the preliminary hearing. [Citations.]
5. The State used evidence in trial that was obtained by an unconstitutional search. [Citations.]
E. [The defendant's] Fourth and Fourteenth Amendment protection against unreasonable search and seizure was violated for the following reason:
1. Defendant was arrested without a warrant and without probable cause. [Citations.]
2. Defendant's property was seized without a warrant.
F. [The defendant's] Sixth Amendment right to an impartial jury was violated for the following reason:
1. The jurors chosen and selected were neither impartial, nor from a fair cross-section of the community where the jurors had substantial ties to the State's Attorney's office and the county police department."

¶ 6 The amended petition stated that the defendant sought "incorporation of the Affidavits attached to his pro se Petition for Post-Conviction Relief filed on January 25, 2006." Counsel also filed a Rule 651(c) certificate. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶ 7 The State filed a motion to dismiss the amended postconviction petition. The motion to dismiss argued that the allegations in the amended petition were conclusory and not supported by affidavits or the record.

¶ 8 Postconviction counsel filed an answer to the motion to dismiss, which stated that a pro se document prepared by the defendant titled "Memorandum of Points and Authorities in Support of Attached Petition for Post-Conviction Relief" was attached. Postconviction counsel requested that this document "be accepted as an exhibit to [the defendant's] original Petition and his Amended Petition and characterized as an affidavit in support of the claims advanced in both versions of the Petition." The memorandum was an unnotarized, handwritten document that also included police reports and other documentation. The memorandum and supporting documents were over 70 pages long.

¶ 9 A hearing was held on the State's motion to dismiss. The court asked the State if the defendant had "filed enough to get to us [sic ] Stage 3." The State replied, "Nope." The State argued that the petition was not sufficient to warrant an evidentiary hearing because there were no affidavits supporting the claims raised in the petition. The State described the pro se memorandum that counsel submitted as an affidavit as "about 50 pages of gibberish, copies of police reports, and stuff that I can't make heads or tails of." The court granted the State's motion to dismiss, finding that the amended petition did not contain affidavits supporting the claims in the petition.

¶ 10 ANALYSIS

¶ 11 The defendant argues that he did not receive a reasonable level of assistance from his postconviction counsel because counsel failed to put his claims into proper legal form in the amended petition.

¶ 12 The defendant's petition was dismissed at the second stage of postconviction proceedings. "During the second stage, the petitioner bears the burden of making a substantial showing of a constitutional violation." People v. Domagala , 2013 IL 113688, ¶ 35, 370 Ill.Dec. 1, 987 N.E.2d 767.

"The second stage of postconviction review tests the legal sufficiency of the petition. Unless the petitioner's allegations are affirmatively refuted by the record, they are taken as true, and the question is whether those allegations establish or 'show' a constitutional violation. In other words, the 'substantial showing' of a constitutional violation that must be made at the second stage [citation] is a measure of the legal sufficiency of the petition's well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to relief." (Emphasis in original.) Id.

¶ 13 "During second-stage proceedings, the court may appoint counsel for an indigent defendant, who may amend the petition as necessary * * *." People v. Cotto , 2016 IL 119006, ¶ 27, 402 Ill.Dec. 50, 51 N.E.3d 802. The defendant is entitled to a reasonable level of assistance from appointed counsel. People v. Greer , 212 Ill. 2d 192, 204, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004). In order to assure that a defendant receives a reasonable level of assistance from postconviction counsel, Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes three duties on counsel. People v. Perkins , 229 Ill. 2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398 (2007). Specifically, Rule 651(c) provides that counsel must certify that he or she (1) "has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights," (2) "has examined the record of the proceedings at the trial," and (3) "has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions."

Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶ 14 "The purpose of [ Rule 651(c) ] is to ensure that postconviction counsel shapes the defendant's claims into a proper legal form and presents them to the court." People v. Profit , 2012 IL App (1st) 101307, ¶ 18, 363 Ill.Dec. 16, 974 N.E.2d 813 ; see also People v. Richmond , 188 Ill. 2d 376, 381, 242 Ill.Dec. 255, 721 N.E.2d 534 (1999) (" 'The [Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2014) ) ] can not [sic ] perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.' " (quoting People v. Slaughter , 39 Ill. 2d 278, 285, 235 N.E.2d 566 (1968) ) ). Where, as in the instant case, postconviction counsel files a Rule 651(c) certificate, there is a presumption that the defendant received reasonable assistance of postconviction counsel. People v. Russell , 2016 IL App (3d) 140386, ¶ 10, 402 Ill.Dec. 793, 52 N.E.3d 714. However, that presumption may be rebutted by the record. Id.

¶ 15 Here, the record rebuts the presumption that counsel fulfilled the requirements of Rule 651(c) because the record shows that counsel failed to make the necessary amendments to the pro se petition to adequately present the defendant's claims. That is, counsel failed to shape the defendant's pro se claims into proper legal form. See Profit , 2012 IL App (1st) 101307, ¶ 18, 363 Ill.Dec. 16, 974 N.E.2d 813 ; Richmond , 188 Ill. 2d at 381, 242 Ill.Dec. 255, 721 N.E.2d 534.

¶ 16 First, the amended petition failed to allege the basic elements of the claims it raised. For example, the amended petition alleged several claims of ineffective assistance of counsel but failed to allege that the defendant was prejudiced by trial counsel's deficiencies. "To prevail on * * * a claim [of ineffective assistance of counsel], a defendant must show both that his counsel was deficient and that this deficiency prejudiced the defendant." People v. Bew , 228 Ill. 2d 122, 127, 319 Ill.Dec. 878, 886 N.E.2d 1002 (2008). Without even an allegation of prejudice, the petition could not have stated a viable claim of ineffective assistance of counsel. Because the petition failed to allege the basic elements of the claims it raised, the petition was not in an appropriate legal form to present the defendant's claims to the court.

¶ 17 Similarly, the amended petition contained virtually no specific, factual allegations to support the general claims it asserted. Rather, the petition contained only conclusory allegations. For example, the petition alleged that trial counsel was ineffective for failing to request a fitness hearing but alleged no facts showing that there was a bona fide doubt as to the defendant's fitness. See People v. McCallister , 193 Ill. 2d 63, 110, 249 Ill.Dec. 806, 737 N.E.2d 196 (2000) ("A defendant is presumed fit to stand trial. [Citation.] A defendant is entitled to a fitness hearing only when a bona fide doubt of his fitness to stand trial or be sentenced is raised.").

¶ 18 The other allegations of ineffective assistance of counsel are similarly conclusory. For example, the amended petition stated that trial counsel was ineffective for failing to file pretrial motions but does not allege what motions counsel could have filed or that such motions would have been successful. Additionally, the petition states that trial counsel was ineffective for failing to investigate and call defense witnesses, but the petition does not specify who trial counsel should have called as witnesses and what the content of their testimony would have been.

¶ 19 Also, the amended petition alleged that the defendant's constitutional rights were violated because he was arrested without a warrant and without probable cause. However, the petition gives no factual detail surrounding the arrest that would show the defendant was arrested without probable cause. Notably, an arrest warrant appears in the record, which the amended petition does not address. Also, the petition alleged that the State used evidence at trial that was obtained by an unconstitutional search, but the petition does not specify what the evidence was or allege the reason the search was unconstitutional.

¶ 20 "The allegations [in a postconviction petition] must contain a sufficient factual recounting of the basis for defendant's post-conviction claim." People v. Kubik , 214 Ill. App. 3d 649, 654, 158 Ill.Dec. 152, 573 N.E.2d 1337 (1991). When courts determine whether the allegations in a postconviction petition make a substantial showing of a constitutional violation, "all well-pleaded facts in the petition and affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to require a hearing under the Act." People v. Rissley , 206 Ill. 2d 403, 412, 276 Ill.Dec. 821, 795 N.E.2d 174 (2003). Because the amended petition failed to allege specific facts to support its general claims, there was virtually nothing for the circuit court to take as true at the second stage. Thus, the amended petition was not in proper legal form.

¶ 21 In coming to this conclusion, we acknowledge that our supreme court has held that, in the absence of a showing that sufficient facts or evidence exists, postconviction counsel does not provide unreasonable assistance in " 'failing to make the [amended] petition's allegations factually sufficient to require the granting of relief.' " People v. Spreitzer , 143 Ill. 2d 210, 221, 157 Ill.Dec. 467, 572 N.E.2d 931 (1991) (quoting People v. Stovall , 47 Ill. 2d 42, 46, 264 N.E.2d 174 (1970) ). Here, it was not postconviction counsel's failure to plead sufficient facts to ultimately require the granting of relief that rendered counsel's assistance unreasonable. Rather, counsel provided an unreasonable level of assistance because he failed to allege any specific facts in support of the general claims raised in the petition.

¶ 22 We note that it is not necessary for postconviction counsel to amend a petition if the amendment "would only further a frivolous or patently nonmeritorious claim." Greer , 212 Ill. 2d at 205, 288 Ill.Dec. 153, 817 N.E.2d 511. Indeed, "[a]n attorney * * * who determines that defendant's claims are meritless cannot in good faith file an amended petition on behalf of defendant." Id. Here, postconviction counsel chose to file an amended petition, so we assume that counsel found that the allegations in the pro se petition were not frivolous. If counsel had found some of the claims in the petition to be frivolous, the appropriate procedure would have been to omit those claims from the petition. If counsel had found all the claims in the petition to be frivolous, the appropriate procedure would have been to stand on the pro se petition or seek to withdraw as counsel. People v. Malone , 2017 IL App (3d) 140165, ¶ 10, 411 Ill.Dec. 715, 74 N.E.3d 24.

¶ 23 Finally, we would be remiss if we did not call attention to postconviction counsel's submission of the defendant's handwritten, unnotarized, 70-page pro se memorandum in lieu of a proper affidavit. This was improper because the handwritten memorandum was not a sworn statement. "[A]n affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits." Roth v. Illinois Farmers Insurance Co. , 202 Ill. 2d 490, 494, 270 Ill.Dec. 18, 782 N.E.2d 212 (2002). To comply with Rule 651(c) and section 122-2 of the Act ( 725 ILCS 5/122-2 (West 2014) ), counsel should have submitted a proper, sworn affidavit of the defendant.

¶ 24 It is unclear from this record, however, whether counsel would have been able to obtain other affidavits or evidence to support the defendant's claims. Our supreme court has recognized:

"In the ordinary case, a trial court ruling upon a motion to dismiss a post-conviction petition which is not supported by affidavits or other documents may reasonably presume that post-conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but was unable to do so." People v. Johnson , 154 Ill. 2d 227, 241, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993).

As we are remanding this case on the basis that counsel failed to shape the defendant's claims into proper legal form by alleging the basic elements of the claims and supporting facts, counsel will have an opportunity to obtain and submit supporting affidavits and other evidence, if any exists, along with the amended petition.

¶ 25 CONCLUSION

¶ 26 The judgment of the circuit court of Rock Island County is reversed. The cause is remanded so that postconviction counsel may file a new amended postconviction petition that adequately presents the defendant's claims.

¶ 27 Reversed and remanded.

Justices McDade and O'Brien concurred in the judgment and opinion.