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                                Appellate Court                           Date: 2018.04.26
                                                                          13:10:08 -05'00'




                    People v. Perry, 2017 IL App (1st) 150587



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            CORDELL PERRY, Defendant-Appellant.



District & No.     First District, Fourth Division
                   Docket No. 1-15-0587


Filed              December 21, 2017
Rehearing denied   February 1, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 05-CR-11283; the
Review             Hon. Charles P. Burns, Judge, presiding.



Judgment           Reversed and remanded.


Counsel on         Michael J. Pelletier, Thomas A. Lilien, and Elena B. Penick, of State
Appeal             Appellate Defender’s Office, of Elgin for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Annette Collins, and Tasha-Marie Kelly, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              JUSTICE McBRIDE delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Burke and Justice Gordon concurred in the judgment
                   and opinion.
                                            OPINION

¶1       Defendant Cordell Perry appeals the trial court’s second stage dismissal of his successive
     petition for postconviction relief, arguing that his postconviction counsel rendered
     unreasonable assistance by withdrawing a supporting affidavit and tacitly agreeing to
     dismissal of his petition and that the $105 costs assessment must be vacated.
¶2       Following a jury trial, defendant was convicted of first degree murder in connection with
     the shooting of the victim, Denzel Calhoun, on April 1, 2005, at Magnum Motors at Cicero
     and Wabansia Avenues in Chicago. Defendant was sentenced to a term of 65 years in prison,
     which included a mandatory enhancement for discharging a firearm.
¶3       At trial, Latavia Hayden testified that on April 1, 2005, she was with her boyfriend,
     Calhoun, at Magnum Motors because Calhoun was selling his car and buying a new one.
     While Calhoun filled out paperwork, Hayden stepped onto the balcony to smoke a cigarette
     and noticed defendant standing on the corner. Hayden and Calhoun left the office to transfer
     Calhoun’s belongings from his old car to his new one. As Calhoun walked between two
     SUVs, shots were fired, and Calhoun fell to the ground. Defendant stood in one spot as he
     fired one shot to Calhoun’s head and three or four shots at Calhoun’s body.
¶4       Hayden identified defendant as the shooter by his nickname, Bushwick, to police that
     afternoon. She subsequently identified defendant in a photo array, a lineup, and in court.
     Hayden admitted that she told her friend, Keisha Reese, that she did not see the shooter’s
     face. Hayden testified that she said that to Reese because Reese would discuss their
     conversation with other people. Hayden also testified that she knew a man named Vernon
     Holman from the neighborhood, but she denied seeing him at the car lot. The trial court
     sustained the State’s objection to questions regarding any prior relationship Hayden may
     have had with Holman.
¶5       Holman testified that he knew Hayden and defendant and that he sold drugs near
     Magnum Motors. On April 1, 2005, while cutting through the car lot, he saw Hayden talking
     to a man who looked like Calhoun, whom he had not met. As Holman passed by, he noticed
     defendant, who was wearing a coat and a black hoodie, standing alone between two vans on
     the lot. As Holman walked toward Wabansia Avenue, he heard three or four shots, at which
     point he ran home. Holman had two prior felony convictions for murder and possession of a
     controlled substance with intent to deliver. On April 2, 2005, Holman was arrested on a drug
     charge and initially denied knowing about the Calhoun shooting. Holman gave information
     to the police about the shooting several days later. Holman also had a pending misdemeanor
     charge. He testified that the State had not promised him anything for his testimony. An
     assistant public defender testified that on May 11, 2007, Holman told her that he had not seen
     defendant in the car lot on April 1, 2005, and was afraid of being charged with perjury.
¶6       Boykin Gradford testified that he and his wife were driving on Cicero Avenue when he
     heard shots. Gradford saw a short, stocky African-American man wearing a black hoodie and
     a white “do-rag” standing behind an SUV on the lot, with his arm outstretched and a gun in
     his hand. Gradford also saw the victim standing between two parked cars, approximately
     three to four feet away from the shooter. He saw the victim fall to the ground and did not
     recall any shots fired thereafter. On April 7, 2005, Gradford viewed a lineup and thought
     defendant looked like the shooter but was not 100% certain. The viewing was recorded by
     police as a “negative lineup.” Officer Robert Bullock testified that his case report did not

                                               -2-
       reflect Gradford saying he saw a man with a gun. Detective Stanley Colon testified that when
       he interviewed Gradford on April 1, 2005, Gradford did not mention seeing a gun fired or
       someone running with a gun.
¶7         After police arrested defendant on April 6, Detective Michael Barz interviewed him.
       Detective Barz testified that defendant admitted he was at the scene of the shooting, but he
       denied seeing who fired the shots. Defendant further stated that he recognized Calhoun as the
       man who killed his friend, Anderson Thomas, also known as “Shug.” Defendant had a tattoo
       on his arm that read “RIP Shug.”
¶8         A certified copy of Calhoun’s 1993 murder conviction was entered into evidence.
¶9         The jury found defendant guilty of first degree murder, and the court sentenced him to 65
       years in prison. On direct appeal, defendant argued that the trial court excessively restricted
       his attempts to cross-examine the State’s witnesses and present a theory of defense, the trial
       court erred in refusing defense counsel’s request for a jury instruction on the meaning of the
       reasonable doubt standard, and the trial court erred in refusing defense counsel’s request for
       the jury to be given an addict instruction regarding Holman. This court affirmed defendant’s
       conviction and sentence on direct appeal. People v. Perry, No. 1-07-2761 (2009)
       (unpublished order under Illinois Supreme Court Rule 23).
¶ 10       In July 2010, defendant filed his pro se postconviction petition, raising several allegations
       of ineffective assistance of trial counsel. Specifically, the petition alleged (1) the failure to
       investigate and call several witnesses, including forensic witnesses, witnesses who would
       have testified that Hayden had been romantically involved with defendant’s brother, which
       ended when defendant exposed Hayden’s infidelity, and that Hayden was romantically
       involved with Holman at the time of Calhoun’s murder, and a witness who witnessed
       Holman admit to committing the murder; (2) trial counsel refused to allow defendant to
       testify at trial and coerced him to waive his right to testify; (3) trial counsel presented a
       defense theory he knew to be false; and (4) cumulative error based on these allegations.
       Defendant attached four affidavits, one from himself and three from potential witnesses, but
       none were notarized. The trial court summarily dismissed defendant’s petition in September
       2010. Defendant appealed, and this court affirmed the dismissal. People v. Perry, 2012 IL
       App (1st) 103225-U.
¶ 11       In April 2013, defendant filed his pro se successive postconviction petition asserting a
       claim of actual innocence. In support of his petition, defendant attached an affidavit
       purportedly from Hayden. In the affidavit, Hayden averred that she did not see who shot
       Calhoun. She identified defendant “after pressure” from the police and the assistant State’s
       Attorney (ASA). She was given defendant’s name from detectives. Hayden stated that prior
       to defendant’s trial, she was advised by the ASA with the details of her testimony, including
       that she was not forced to identify defendant. She further averred that she was now willing to
       testify that she did not see defendant shoot Calhoun and she did not see who killed Calhoun.
       She “falsely testified and identified [defendant] at his trial, because [she] had already lied in
       [her] statement and [she] feared prosecution.” She stated that she was not forced or induced
       to give this statement. The affidavit was signed and notarized and included a photocopy of
       Hayden’s state identification card.
¶ 12       In June 2013, the trial court docketed defendant’s successive petition. The public
       defender was appointed to represent defendant. In March 2014, defendant’s public defender
       filed her Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) certificate, stating that she

                                                   -3-
       had spoken with defendant, had examined the proceedings and trial record, and had not
       amended defendant’s petition. In June 2014, at a status hearing, the prosecutor stated that she
       had conducted an investigation and had related the results of the investigation to defendant’s
       postconviction counsel to review. In August 2014, postconviction counsel answered ready
       for a third stage hearing and asked for a status date to set the hearing.
¶ 13       In September 2014, the State filed its answer to defendant’s postconviction petition. In its
       answer, the State agreed that defendant had “met the burden required to proceed to a stage
       three post conviction hearing.” Also in September 2014, postconviction counsel filed a
       motion to disqualify the assigned ASA. The motion asserted that counsel received a written
       investigative report prepared by an ASA investigator. The written report noted that Hayden
       stated in an interview with the ASA that Hayden did not sign the affidavit and her
       identification had been stolen. The ASA also gave counsel a DVD of an interview with
       Hayden and the ASA recorded in June 2014. On information and belief, the video was
       recorded by the ASA investigator. Hayden stated in the video interview that her identification
       was lost. Counsel stated that based on the investigation, the ASA’s testimony for
       impeachment purposes “may be vital,” and the ASA was potential witness at the evidentiary
       hearing. The trial court denied counsel’s motion following a hearing.
¶ 14       In October 2014, the parties appeared for the evidentiary hearing. Counsel waived
       defendant’s appearance and asked for a date. She stated that she “may have made some
       mistakes that [would] cause this to come back on a remand, so I’m asking for date.” When
       asked by the trial court what she meant, counsel responded, “It means that I need to, I talked
       to my supervisor on the phone and he raised some issues, so I don’t want to go through the
       evidentiary hearing an[d] have it come back on appeal.”
¶ 15       In December 2014, counsel filed a motion to withdraw Hayden’s affidavit “after much
       investigation” and to substitute an affidavit from defendant. Defendant’s affidavit simply
       stated his date of birth, current address in prison, a statement that “I am innocent of all
       charges and I still maintain my innocence,” and that this affidavit was attached to and
       incorporated by reference to his postconviction petition.
¶ 16       At the hearing on the motion, the ASA asserted that defendant’s affidavit cannot meet the
       burden to set forth actual innocence and orally moved to dismiss defendant’s petition.
       Postconviction counsel responded that she would waive notice and had no argument. The
       court stated it needed to take the matter under advisement because the court had not had a
       situation like this before and wanted to look into it.
¶ 17       At a status hearing in January 2015, postconviction counsel informed the trial court that
       she needed to file an amended Rule 651(c) certificate. She stated that she had received a
       letter from defendant. She said that defendant was “under the misapprehension of—regarding
       me withdrawing the affidavit. My position still stands. I’m just asking, so this doesn’t come
       back on an ineffective assistance of counsel.” The amended Rule 651(c) certificate stated:
                    “I have consulted with Petitioner, Cordell Perry, by phone, mail, electronic mean
                or in person to ascertain his contentions of deprivation of constitutional rights; I have
                examined the record of the proceedings at the trial, Petitioner’s post-conviction
                claims and investigated the Affidavit attached to the pro se Petition; I have attached a
                new Affidavit to the pro se Petition but I have made no amendment to the pro se
                Petition previously filed, as the pro se Petition is sufficient for the adequate
                presentation of Petitioner’s contentions.”

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¶ 18        At the next status hearing in January 2015, postconviction counsel informed the trial
       court as follows.
                “The reason the case passed the first stage was due to the affidavit. And the affidavit,
                according to my own investigations, and with the State’s investigations, as an officer
                of the Court, I cannot proceed with the affidavit.”
       Counsel indicated that defendant “does not agree” with her, but “as an officer of the Court, I
       stand by my decision.” The trial court subsequently issued a written order dismissing
       defendant’s postconviction petition because the petition with defendant’s “self-serving
       affidavit” was “frivolous and completely without merit.” The court then assessed $105 in
       filing fees, $90 for filing the petition, and $15 for mailing fees.
¶ 19        This appeal followed.
¶ 20        On appeal, defendant argues that his postconviction counsel rendered unreasonable
       assistance by withdrawing the affidavit purportedly by Hayden over defendant’s objection
       and tacitly agreeing to the dismissal of his petition.
¶ 21        The Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-8
       (West 2012)) provides a tool by which those under criminal sentence in this state can assert
       that their convictions were the result of a substantial denial of their rights under the United
       States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2012);
       People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to
       constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. “A
       proceeding brought under the [Post-Conviction Act] is not an appeal of a defendant’s
       underlying judgment. Rather, it is a collateral attack on the judgment.” People v. Evans, 186
       Ill. 2d 83, 89 (1999).
¶ 22        At the first stage, the circuit court must independently review the postconviction petition
       within 90 days of its filing and determine whether “the petition is frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). If the circuit court does not dismiss
       the postconviction petition as frivolous or patently without merit, then the petition advances
       to the second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS
       5/122-4 (West 2012)), and the State is allowed to file responsive pleadings (725 ILCS
       5/122-5 (West 2012)). At this stage, the circuit court must determine whether the petition and
       any accompanying documentation make a substantial showing of a constitutional violation.
       See Coleman, 183 Ill. 2d at 381. If no such showing is made, the petition is dismissed. “At
       the second stage of proceedings, all well-pleaded facts that are not positively rebutted by the
       trial record are to be taken as true, and, in the event the circuit court dismisses the petition at
       that stage, we generally review the circuit court’s decision using a de novo standard.” People
       v. Pendleton, 223 Ill. 2d 458, 473 (2006). If, however, a substantial showing of a
       constitutional violation is set forth, then the petition is advanced to the third stage, where the
       circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). “Only those
       claims in which a substantial showing has been made entitle the defendant to an evidentiary
       hearing.” People v. Cleveland, 2012 IL App (1st) 101631, ¶ 55 (citing People v. Lara, 317 Ill.
       App. 3d 905, 908 (2000)).
¶ 23        However, the Post-Conviction Act only contemplates the filing of one postconviction
       petition with limited exceptions. 725 ILCS 5/122-1(f) (West 2012); see also People v.
       Pitsonbarger, 205 Ill. 2d 444, 456 (2002). The supreme court has recognized two bases upon
       which the bar against successive proceedings will be relaxed. People v. Edwards, 2012 IL

                                                    -5-
       111711, ¶ 22. First, under section 122-1(f), a defendant must satisfy the cause and prejudice
       test for failure to raise the claim earlier in order to be granted leave to file a successive
       postconviction petition. 725 ILCS 5/122-1(f) (West 2012). The second basis to relax the bar
       against a successive postconviction is “what is known as the ‘fundamental miscarriage of
       justice’ exception.” Edwards, 2012 IL 111711, ¶ 23. “The United States Supreme Court has
       stated that the exception serves as an additional safeguard against compelling an innocent
       man to suffer an unconstitutional loss of liberty [citation], guaranteeing that the ends of
       justice will be served in full.” (Internal quotation marks omitted.) Id. (quoting People v.
       Szabo, 186 Ill. 2d 19, 43 (1998) (Freeman, C.J., specially concurring, joined by Heiple, J.),
       quoting McCleskey v. Zant, 499 U.S. 467, 495 (1991)).
¶ 24       “In order to demonstrate a miscarriage of justice to excuse the application of the
       procedural bar, a petitioner must show actual innocence.” Id. With respect to those seeking to
       relax the bar against successive postconviction petitions on the basis of actual innocence, the
       supreme court has held that “leave of court should be denied only where it is clear, from a
       review of the successive petition and the documentation provided by the petitioner that, as a
       matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” Id. ¶ 24.
       “Stated differently, leave of court should be granted when the petitioner’s supporting
       documentation raises the probability that ‘it is more likely than not that no reasonable juror
       would have convicted him in the light of the new evidence.’ ” Id. (quoting Schlup v. Delo,
       513 U.S. 298, 327 (1995)). “The elements of a claim of actual innocence are that the
       evidence in support of the claim must be ‘newly discovered’; material and not merely
       cumulative; and of such conclusive character that it would probably change the result on
       retrial.” Id. ¶ 32 (citing People v. Ortiz, 235 Ill. 2d 319, 333 (2009)).
¶ 25       The issue before us on appeal does not involve a consideration of the merits of
       defendant’s petition, but rather a review of whether defendant received a reasonable level of
       assistance as he was entitled during the postconviction proceedings.
¶ 26       Defendant in postconviction proceedings is only entitled to a “reasonable” level of
       assistance, which is lower than the standard given under federal or state constitutions.
       Pendleton, 223 Ill. 2d at 472. “Counsel’s duties, pursuant to Rule 651(c), include
       consultation with the defendant to ascertain his contentions of deprivation of constitutional
       right, examination of the record of the proceedings at the trial, and amendment of the
       petition, if necessary, to ensure that defendant’s contentions are adequately presented.” Id.;
       see also Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). Under Rule 651(c), postconviction counsel is
       required “to examine as much of the record ‘as is necessary to adequately present and
       support those constitutional claims raised by the petitioner.’ ” Pendleton, 223 Ill. 2d at
       475-76 (quoting People v. Davis, 156 Ill. 2d 149, 164 (1993)). Postconviction counsel may
       conduct a more thorough examination of the record and raise additional claims, but he or she
       is under no obligation to do so. Id. at 476. Postconviction counsel is not required to advance
       frivolous or spurious claims and “ ‘is only required to investigate and properly present the
       petitioner’s claims.’ ” (Emphasis in original.) Id. at 475 (quoting Davis, 156 Ill. 2d at 164).
       “[E]thical obligations prohibit counsel from doing so if the claims are frivolous or spurious.”
       People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008) (citing People v. Greer, 212 Ill. 2d 192,
       205 (2004)). “The question remains what should counsel do if counsel investigates the claims
       but finds them without merit.” Id. Illinois case law provides options: (1) “stand on the
       allegations in the pro se petition and inform the court of the reason the petition was not

                                                  -6-
       amended” or (2) withdraw as counsel. Id. “In both of these scenarios, the allegations in the
       pro se petition remained to proceed according to the parameters of the Act.” Id.
¶ 27        We find the supreme court’s discussion in People v. Kuehner, 2015 IL 117695,
       describing postconviction counsel’s responsibilities in filing a motion to withdraw, to be
       instructive. When at the second stage of proceedings after the trial court has found that
       petition is not frivolous or without merit, then “appointed counsel’s task is not to second
       guess the trial court’s first-stage finding but rather is to move the process forward by
       cleaning up the defendant’s pro se claims and presenting them to the court for adjudication.”
       Id. ¶ 20. However, the supreme court acknowledged that postconviction counsel may
       discover “something that ethically would prohibit [him or her] from actually presenting the
       defendant’s claims to the court.” Id. ¶ 21. Postconviction counsel “bears the burden of
       demonstrating, with respect to each of the defendant’s pro se claims, why the trial court’s
       initial assessment was incorrect.” Id. The supreme court compared postconviction counsel’s
       motion to withdraw to a motion to reconsider, in that “a motion to withdraw filed subsequent
       to a trial court’s affirmative decision to advance the petition to the second stage does not ask
       the trial court to conduct its first-stage assessment a second time but rather seeks to bring to
       the trial court’s attention information that was not apparent on the face of the pro se petition
       at the time such assessment was made.” Id. Therefore, “where a pro se postconviction
       petition advances to the second stage on the basis of an affirmative judicial determination
       that the petition is neither frivolous nor patently without merit, appointed counsel’s motion to
       withdraw must contain at least some explanation as to why all of the claims set forth in that
       petition are so lacking in legal and factual support as to compel his or her withdrawal from
       the case.” Id. ¶ 27.
¶ 28        In this case, postconviction counsel did not stand on the petition or move to withdraw but
       withdrew a supporting affidavit over defendant’s objection. Defendant argues that counsel’s
       decision to withdraw the affidavit rather than withdraw as counsel deprived him of
       reasonable assistance. In the trial court, defendant’s petition raising a claim of actual
       innocence was advanced to the second stage, and postconviction counsel was appointed to
       represent defendant. Initially, counsel filed a Rule 651(c) certificate indicating that she was
       not amending defendant’s petition as it adequately presented his postconviction claims. The
       State agreed that the petition should be advanced to a third stage evidentiary hearing. Later,
       the State disclosed that its investigation called into question the authenticity of the Hayden
       affidavit attached to defendant’s petition. Hayden was interviewed by an ASA and an
       investigator and stated that she did not sign the affidavit and her identification had been
       stolen. Subsequently, postconviction counsel moved to withdraw Hayden’s affidavit “after
       much investigation” but did not describe her investigation. Counsel then substituted
       defendant’s affidavit in which he simply proclaims his innocence. The State then orally
       moved to dismiss the petition and postconviction counsel waived notice and offered no
       argument. The trial court took the motion under advisement and later dismissed the petition
       as frivolous and without merit because defendant’s affidavit failed to set forth the elements
       necessary to establish a claim of actual innocence. Postconviction counsel also filed an
       amended Rule 651(c) certificate indicating her withdrawal and substitution of affidavits.
       Counsel also stated on the record that defendant did not agree with her actions, but “as an
       officer of the Court, I stand by my decision.”



                                                  -7-
¶ 29       Defendant relies on two decisions to support his claim of unreasonable assistance of
       postconviction counsel. In People v. Shortridge, 2012 IL App (4th) 100663, the defendant
       had plead guilty to one count of criminal drug conspiracy. He subsequently filed a pro se
       postconviction petition arguing ineffective assistance of trial counsel and due process
       violations. He attached his own affidavit, denying his involvement in a drug conspiracy. Id.
       ¶¶ 3-4. Postconviction counsel filed a Rule 651(c) certificate but did not amend the
       defendant’s petition. The State moved to dismiss the defendant’s petition. At a hearing,
       postconviction counsel stated that he was “ ‘going to confess the motion to dismiss.’ ” Id.
       ¶ 6. The court then dismissed the petition. Defendant later filed pro se motions for
       withdrawal of postconviction counsel and to reconsider the dismissal of his petition. The
       court ruled that the withdrawal motion was moot and the motion to reconsider was stricken
       for not being filed by counsel. Id. ¶ 7.
¶ 30       On appeal, the Fourth District held that “[i]f counsel, in fact, found the allegations
       ‘nonmeritorious,’ even with any necessary amendments, then he should have moved to
       withdraw as counsel, not confess the State’s motion to dismiss.” Id. ¶ 14. The court reversed
       the dismissal of the defendant’s petition and ordered for new counsel to be appointed to
       represent the defendant. Id. ¶ 15. “If newly appointed counsel, after complying with the
       mandates of Rule 651, determines that defendant’s petition lacks any meritorious issue, then
       he should move to withdraw as counsel. At that point, the circuit court would need to
       determine whether the record supported counsel’s assertion that the petition was without
       merit.” Id. “Depending on the court’s assessment, defendant could be allowed to proceed
       pro se. In other words, appointed counsel should either represent defendant’s interests in the
       proceedings or move to withdraw.” Id.
¶ 31       In People v. Elken, 2014 IL App (3d) 120580, ¶¶ 19-20, postconviction counsel informed
       the trial court that the defendant’s postconviction petition had no merit by explaining why
       each issue failed, but he did not move to withdraw. In response, the trial court then dismissed
       the defendant’s postconviction petition “ ‘based upon arguments of defense counsel.’ ” Id.
       ¶ 21. The State did not raise its motion to dismiss or make any arguments. Id. The defendant
       filed a motion to reconsider the dismissal of his petition and allowing counsel to withdraw,
       which the trial court denied. Id. ¶¶ 22-23.
¶ 32       On appeal, the Third District noted the “unorthodox procedure” in the trial court and
       observed that postconviction counsel never moved to withdraw and the record does not show
       that the trial court allowed counsel to withdraw, but it did dismiss the petition. Id. ¶ 27. The
       reviewing court reversed the dismissal of the defendant’s postconviction petition, finding the
       reversal was warranted when counsel failed to file a motion to withdraw and instead “simply
       stood up at the hearing and stated that defendant’s contentions had no merit.” Id. ¶ 32. The
       court reasoned:
               “If counsel finds that defendant’s contentions are frivolous or patently without merit
               at the second stage, he cannot in good faith continue, so he must file a motion to
               withdraw. If he files a motion to withdraw, he must give his reasons for doing so. He
               is then, in essence, ‘confessing’ that the defendant has no viable arguments and is, in
               essence, agreeing that the petition should be dismissed. Our point is only that the
               confession is not necessarily wrong, but defendant should be afforded the opportunity
               to prepare for such an attack on his petition and to make any arguments in rebuttal.
               He was denied that opportunity here. The appropriate procedure under these

                                                  -8-
               circumstances would be for appointed counsel to file a motion to withdraw, giving
               defendant notice of the same. This allows defendant to prepare to argue against
               appointed counsel’s motion. It further obviates any opportunity for a defendant to
               argue that he was blindsided by his appointed counsel’s arguments.” Id. ¶ 36.
¶ 33       The State responds that the circumstances present in this case are distinguishable from
       Shortridge and Elken, and are more in line with People v. Malone, 2017 IL App (3d) 140165,
       and People v. Rivera, 2016 IL App (1st) 132573. In Malone, the defendant’s petition
       advanced to the second stage, and counsel was appointed. The State moved to dismiss the
       petition, arguing that none of the issues raised had merit. At the hearing on the motion,
       postconviction counsel stated that he disagreed with the State’s motion and then stood on the
       arguments raised in the petition. Counsel filed a Rule 651(c) certificate and did not amend
       the defendant’s petition. Malone, 2017 IL App (3d) 140165, ¶ 5.
¶ 34       On appeal, the defendant argued that he received unreasonable assistance from his
       postconviction counsel as counsel should have either amended the petition or sought to
       withdraw from representation. Id. ¶ 7. The Third District concluded that once counsel filed a
       compliant Rule 651(c) certificate, the rebuttable presumption arose that counsel provided
       reasonable assistance and the defendant failed to rebut that presumption. Id. ¶ 11. The court
       further found that while the supreme court in Greer, 212 Ill. 2d at 211, allowed
       “postconviction counsel to withdraw when the allegations of the petition are without merit
       and frivolous, it does not compel withdrawal under such circumstances.” (Emphasis in
       original.) Malone, 2017 IL App (3d) 140165, ¶ 12.
¶ 35       In Rivera, the defendant had been convicted of first degree murder as the shooter in a
       gang-related shooting. In his postconviction petition, the defendant raised a claim of actual
       innocence based on an affidavit from his codefendant. Rivera, 2016 IL App (1st) 132573,
       ¶ 1. The codefendant had pleaded guilty to first degree murder under a theory of
       accountability, and in the affidavit, the codefendant stated for the first time that he was the
       shooter in the murder, not the defendant. Id. ¶¶ 6-7. At second stage proceedings,
       postconviction counsel filed a Rule 651(c) certificate and stated that the defendant’s petition
       adequately presented the claims. The State moved to dismiss the petition, asserting that the
       codefendant’s affidavit was unreliable. Id. ¶¶ 8-9. At a hearing, the trial court requested the
       transcript from the codefendant’s guilty plea hearing. During a colloquy on that request,
       postconviction counsel stated, “ ‘It is probably important to see what the factual basis was.’ ”
       Id. ¶ 11-12. At a later court date, the trial court indicated that it had obtained the transcript
       and the factual basis conflicted with the codefendant’s affidavit in support of the defendant’s
       postconviction petition. Postconviction counsel offered no argument. The court then
       dismissed the defendant’s petition. Id. ¶¶ 14-15.
¶ 36       On appeal, the defendant argued that the trial court erred in considering evidence outside
       the record of his case in assessing the credibility of his codefendant’s affidavit at second
       stage and that his postconviction counsel provided unreasonable assistance by effectively
       agreeing that the trial court should consider the transcripts of codefendant’s plea hearing.
       Based on the supreme court’s decision in People v. Sanders, 2016 IL 118123, the reviewing
       court held that the trial court erred in considering evidence outside the record of the
       defendant’s case. Nevertheless, the court affirmed the dismissal after concluding that the
       codefendant’s affidavit was not of such conclusive character that it would probably change to
       result on retrial. Rivera, 2016 IL App (1st) 132573, ¶ 33.

                                                   -9-
¶ 37       Finally, the reviewing court concluded that postconviction counsel’s representation of the
       defendant did not fall below the standard set forth in Rule 651(c). In reaching this
       conclusion, the court distinguished that case from Shortridge, noting that “at no point did
       counsel express the view that defendant’s postconviction claims were without merit, as
       occurred in Shortridge. Instead, counsel told the court he would ‘stand on the pro se petition’
       of defendant.” Id. ¶ 39. Further, “[u]nlike in Shortridge, postconviction counsel’s remark in
       this case that the factual basis for [the codefendant’s] plea was ‘probably important’ did not
       represent a concession of the petition’s merits.” Id.
¶ 38       The State contends that in Rivera the court drew a line in the sand between those actions
       which affirmatively damage a defendant’s claims (Shortridge and Elken) and either passive
       or forfeited actions which, at most, result in a failure to advance a defendant’s specific claim
       (Rivera). The State further asserts that this case falls into the latter category because
       postconviction counsel never indicated that defendant’s claim of actual innocence was
       frivolous or without merit. According to the State, any claim that the withdrawal of the
       Hayden affidavit over defendant’s objection damaged defendant’s claim should be rejected
       because the affidavit had “no evidentiary value” based on the ASA’s and postconviction
       counsel’s investigations. We disagree with the State.
¶ 39       We find the circumstances in this case more analogous to Shortridge and Elken. While
       postconviction counsel did not explicitly “confess” that the petition was frivolous and
       without merit, counsel’s actions fell below a reasonable level of assistance. Here,
       postconviction counsel acted, over defendant’s objection, to withdraw the Hayden affidavit
       from defendant’s petition and substituted defendant’s self-serving affidavit. While the record
       establishes serious questions regarding the reliability of the Hayden affidavit, counsel’s
       actions amounted to an affirmative action that damaged defendant’s claims. Defendant’s
       claim of actual innocence could not stand absent Hayden’s affidavit, as defendant’s bald
       assertion of innocence cannot support a claim of actual innocence. See Edwards, 2012 IL
       111711, ¶ 32. As our analysis illustrates, when confronted with an ethical dilemma, such as
       the authenticity of the Hayden affidavit, counsel has two options: stand on the petition or
       move to withdraw. Counsel in this case took neither option and removed the factual support
       from defendant’s petition and then tacitly agreed with the State’s oral motion to dismiss the
       petition. Defendant was given no opportunity to respond to his counsel’s actions.
       Accordingly, we reverse the dismissal of defendant’s postconviction petition and remand for
       new second stage proceedings on his original pro se successive postconviction petition with
       new counsel appointed to represent defendant. New counsel will have the opportunity to
       review defendant’s petition and the record and either proceed in his or her representation or
       move to withdraw, allowing defendant an opportunity to respond.
¶ 40       Since we have remanded the case for new second stage proceedings, we vacate the
       imposition of the $105 fees and costs assessed against defendant for filing a frivolous
       petition. See 735 ILCS 5/22-105 (West 2012); 705 ILCS 105/27.2a (West 2012). We make
       no finding as to whether the fees may be assessed based on the proceedings on remand.
¶ 41       Based on the foregoing reasons, we reverse the dismissal of defendant’s successive
       postconviction petition and remand for further proceedings in accordance with this decision.

¶ 42      Reversed and remanded.


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