People v. Smith
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Smith was convicted of two counts of attempted first-degree murder; two counts of aggravated battery with a firearm; and one count each of home invasion, armed robbery, and aggravated battery of a child. Because the trial court failed to rule on his pro se post-conviction petition within 90 days, the petition automatically advanced to the second stage of proceedings. Assistant Public Defender Avant was appointed to represent Smith and filed a Rule 651(c) certificate. The Rule provides: “The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that [(1)] the attorney 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.” Avant left the public defender’s office; Underwood was subsequently appointed and represented Smith at a hearing on the state's motion to dismiss.
The trial court dismissed his petition. The appellate court and Illinois Supreme Court affirmed, rejecting Smith’s argument that Underwood’s representation did not comply with Rule 651(c). Underwood was not required to independently demonstrate compliance with Rule 651(c) when all that remained for her to do upon assuming the role of second-stage postconviction counsel was orally argue against the motion to dismiss.
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