Background
Germel A. Butler was convicted of two counts of aggravated criminal sexual assault, aggravated domestic battery, and domestic battery arising from assaults on his then-girlfriend. He received consecutive 20-year prison terms for the sexual-assault convictions, plus four years for aggravated domestic battery and two years for domestic battery. The opinion does not specify whether the latter two sentences were concurrent or consecutive. His convictions were affirmed on direct appeal.
Butler later filed a postconviction petition alleging, among other things, that trial counsel failed to advise him that the sexual-assault sentences could run consecutively, causing him to reject a plea offer carrying a 20-year sentencing cap. Appointed postconviction counsel added a claim that trial counsel inadequately investigated witness Vanessa Wilkinson and therefore failed to discover text messages in time to use them effectively at trial. Counsel attached Wilkinson’s verified but unnotarized statement. The circuit court dismissed the Wilkinson-related claim at the second stage and, after a third-stage hearing, denied the plea-advice claim.
The Court’s Holding
The appellate court held that Butler did not receive the reasonable assistance of postconviction counsel required by Illinois Supreme Court Rule 651(c). Although counsel filed a Rule 651(c) certificate, Butler rebutted the resulting presumption of compliance because Wilkinson’s unnotarized statement was not a valid affidavit and supporting evidence was necessary to present the inadequate-investigation claim properly.
The court reversed and remanded for new second-stage proceedings with newly appointed postconviction counsel. Because Rule 651(c) noncompliance requires remand without regard to the petition’s merits, the majority declined to decide Butler’s challenge to the denial of his plea-advice claim after the third-stage hearing. It also declined to require reassignment to a different circuit judge, concluding that the record did not clearly show bias, probable bias, or prejudice warranting reassignment.
Key Takeaways
- A filed Rule 651(c) certificate creates a rebuttable presumption that postconviction counsel provided reasonable assistance.
- Counsel failed to satisfy Rule 651(c) because a material claim depended on information outside the record, yet the supporting witness statement was not notarized and therefore was not a valid affidavit.
- Rule 651(c) noncompliance required reversal and new second-stage proceedings with new counsel, regardless of the perceived merits of Butler’s postconviction claims.
Why It Matters
The order underscores that appointed postconviction counsel must do more than file a compliance certificate. Counsel must place potentially viable claims into proper legal form, including obtaining valid affidavits or other necessary supporting evidence and addressing procedural defaults where required.
The decision also leaves the merits open on remand. New counsel may amend Butler’s petition to present and preserve his constitutional claims, including his allegation that deficient advice during plea negotiations caused him to reject the State’s offer.