2024 IL App (1st) 230032-U No. 1-23-0032 Order filed June 14, 2024 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 01755 ) DEMISKIC DEAR, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.
JUSTICE LYLE delivered the judgment of the court. Presiding Justice Mitchell and Justice Mikva concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court where postconviction counsel provided a reasonable level of assistance pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶2 Defendant, Demiskic Dear, appeals from the second stage dismissal of his petition under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). In his petition,
Mr. Dear contended, inter alia, that his trial counsel was ineffective in failing to use a peremptory
challenge to strike a Chicago police officer from the jury. Following a hearing, the circuit court No. 1-23-0032
granted the State’s motion to dismiss the petition finding that trial counsel’s conduct represented
reasonable trial strategy.
¶3 On appeal, Mr. Dear contends that his postconviction counsel provided ineffective
assistance in failing to raise the issue of appellate counsel’s ineffectiveness on direct appeal in
order to avoid forfeiture of his claim for ineffective assistance of trial counsel. Mr. Dear also asserts
that postconviction counsel provided ineffective assistance where she was not familiar with the
record at the hearing on the State’s motion to dismiss and could not adequately respond to the
circuit court’s questions about whether trial counsel used all of her peremptory challenges during
jury selection. For the reasons that follow, we affirm the judgment of the circuit court.
¶4 I. BACKGROUND
¶5 A. Trial and Jury Selection
¶6 A full recitation of the facts from Mr. Dear’s jury trial can be found in this court’s order
from Mr. Dear’s direct appeal. People v. Dear, 2015 IL App (1st) 133408-U. Mr. Dear was charged
with armed habitual criminal and aggravated unlawful use of a weapon after a firearm was found
in the trunk of the vehicle he was driving following a traffic stop. During jury selection, each side
was allowed seven peremptory strikes. After examining the first panel of prospective jurors, each
side exercised three peremptory strikes and six jurors were selected. Juror #4 (hereafter referred to
as D.G.) 1 was part of the second panel of prospective jurors. D.G. confirmed that he had been a
Chicago police officer for six years. When asked by the trial court if Mr. Dear could receive a fair
trial from him, D.G. responded, “Yes.” The court asked D.G.:
1 See People v. Manning, 241 Ill. 2d 319, 322 (2011).
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“You’re on the job, you’re a police officer, people find out that you had jury service
over in this building, the jury hears the evidence, they think the right verdict is not guilty
verdict, does that cause you any strain in your relationship with the people you work with?”
D.G. responded, “No.” D.G. confirmed that he would sign a guilty verdict if the State proved Mr.
Dear guilty beyond and reasonable, that he would sign a not guilty verdict if the State was unable
to do that, and that he would keep an open mind throughout the trial.
¶7 Trial counsel moved to strike D.G. for cause because she did not believe that he could be
unbiased in this case because he was Chicago police office. The court denied the motion finding
that D.G. stated that he could be fair. The court noted that it had police officers serve on the jury
before, and the jury returned a not guilty verdict on two of those occasions. The court observed
that it had asked D.G. if serving on the jury would cause any strain with his coworkers and D.G.
“laughed.”
¶8 At trial, two police officers testified about the traffic stop and their subsequent discovery
of the firearm and questioning of Mr. Dear. Mr. Dear, who did not have a valid firearm owner’s
identification (FOID) card, told the officers that he did not know who the gun belonged to. Melinda
Cannon, Mr. Dear’s girlfriend, testified on his behalf that she placed the gun in the vehicle’s trunk
after she observed some children playing with it at the park. Ms. Cannon, who had a valid FOID
card, intended to turn the gun over to the police, but she forgot it was in the trunk and did not tell
Mr. Dear about the gun. At the close of evidence, the jury found Mr. Dear guilty of armed habitual
criminal and aggravated unlawful use of a weapon and the trial court sentenced him to 17 years’
imprisonment.
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¶9 This court affirmed Mr. Dear’s conviction and sentence on direct appeal over his claim that
his trial counsel was ineffective in advancing a legally non-viable defense and effectively
conceding his guilt. Dear, 2015 IL App (1st) 133408-U.
¶ 10 B. Postconviction Proceedings
¶ 11 On October 17, 2016, Mr. Dear filed a petition for relief from judgment pursuant to section
2-1401 of the Code (735 ILCS 5/2-1401(f) (West 2016)). In his petition, Mr. Dear raised claims
of ineffective assistance of trial counsel and prosecutorial misconduct. Mr. Dear also contended
that the trial court erred in denying trial counsel’s request to strike D.G. because he was a Chicago
police officer. The circuit court appointed counsel to represent Mr. Dear and subsequently granted
Mr. Dear’s request to treat the 2-1401 petition as a petition under the Act.
¶ 12 Appointed counsel 2 filed a supplemental postconviction petition on Mr. Dear’s behalf. The
supplemental petition focused on the issue of trial counsel’s request to strike D.G. from the jury.
During jury selection, trial counsel argued that she did not believe D.G. could be fair because he
had friends who were Chicago police officers. Postconviction counsel noted that after the trial
court denied the motion to dismiss D.G. for cause, trial counsel did not use any of her remaining
peremptory challenges to strike him. Postconviction counsel contended that trial counsel’s failure
to use her peremptory challenge to strike D.G. constituted ineffective assistance of counsel.
Postconviction counsel further asserted that Mr. Dear was prejudiced by this deficient performance
2 We note that multiple attorneys represented Mr. Dear throughout the postconviction proceedings. His initial appointed counsel from the Public Defender’s office was transferred to another division and another Public Defender was appointed to represent him. Mr. Dear then retained a private attorney to represent him. That private attorney later withdrew and Mr. Dear retained a second private attorney to represent him. The second private attorney also withdrew and the Public Defender was reappointed.
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because there was a reasonable probability that D.G. could influence the jury and cause them to
give more weight to the police officers’ testimonies.
¶ 13 The State filed a motion to dismiss Mr. Dear’s petition and the supplemental petition. With
regard to the claim that trial counsel was ineffective in failing to strike D.G., the State argued that
Mr. Dear’s claim that D.G. was biased was based on “mere suspicion.” The State noted that the
court questioned D.G. and determined that he could be fair. The State also contended that any
claim that the trial court erred during jury selection was forfeited because Mr. Dear did not raise
this issue in a motion for a new trial or on direct appeal.
¶ 14 The court held a hearing on Mr. Dear’s petition and the State’s motion. At the hearing,
postconviction counsel informed the court that the claim for relief was that trial counsel was
ineffective in failing to use a peremptory challenge to strike D.G. The court asked postconviction
counsel if trial counsel had used all of her peremptory challenges. Postconviction counsel
responded: “No. This was the fourth juror, so she had all her—she had her challenges available to
her.” The court asked postconviction counsel whether D.G. was the foreperson of the jury and
counsel responded that he was not. The court stated that:
“I’ve seen police officers on juries. I’ve seen a police officer foreperson of a jury
that said not guilty happen in my courtroom. I’ve had numerous—it happens from time to
time. I’ve had quite a few police officers serve as jurors.”
The court then asked if trial counsel used all of her peremptory challenges by the end of jury
selection. Postconviction counsel stated that he was “not sure,” but that trial counsel had
peremptory challenges available at the time her motion to strike D.G. for cause was denied.
¶ 15 The court found that that “you cannot fault a lawyer by not using a peremptory challenge
just because of a person’s occupation, even when it’s a police officer and they have to rely on
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testimony of other police officers, that wasn’t the foreperson.” The court noted that the attorneys
have a limited number of peremptory challenges and it was possible that there were other people
that could have been on the venire that trial counsel was more concerned about than D.G. The
court therefore granted the State’s motion to dismiss. This appeal follows.
¶ 16 We note that we have jurisdiction to consider the merits of this appeal pursuant to article
VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court
Rule 651(a) (eff. July 1, 2017).
¶ 17 II. ANALYSIS
¶ 18 On appeal, Mr. Dear contends that his postconviction counsel provided unreasonable
assistance where counsel failed to amend the postconviction petition to include a claim of
ineffective assistance of appellate counsel to avoid forfeiture of the ineffective assistance of trial
counsel claim. Mr. Dear also contends that postconviction counsel provided unreasonable
assistance where she was unfamiliar with the record at the hearing on the State’s motion to dismiss
and could not answer the court’s question about whether trial counsel had used all of her
peremptory challenges during jury selection.
¶ 19 A. Unreasonable Assistance of Counsel
¶ 20 The Act provides a three-stage mechanism by which a criminal defendant may assert that
his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1
(West 2016); People v. Delton, 227 Ill. 2d 247, 253 (2008). At the first stage, the circuit court
reviews the petition to determine whether the allegations in the petition are frivolous or patently
without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If the court does not summarily dismiss the
petition, it must be docketed for further consideration in the second stage. Id.; People v. Addison,
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2023 IL 127119, ¶ 18. At the second stage, the circuit court may appoint counsel to assist an
indigent defendant. Addison, 2023 IL 127119, ¶ 18.
¶ 21 There is no constitutional right to the assistance of counsel in a postconviction proceeding.
People v. Suarez, 224 Ill. 2d 37, 42 (2007). Instead, the postconviction petitioner is entitled to the
level of assistance granted by the Act, which the supreme court has determined is a “reasonable”
level of assistance. Addison, 2023 IL 127119, ¶ 19 (citing People v. Flores, 153 Ill. 2d 264, 276
(1992)). This “reasonable” level of assistance is less than that afforded by the federal or state
constitutions. People v. Pendleton, 223 Ill. 2d 458, 472 (2006).
¶ 22 To ensure a reasonable level of assistance, Illinois Supreme Court Rule 651(c) (eff. July 1,
2017) requires postconviction counsel to (1) consult with the defendant to ascertain his claims of
error, (2) examine the trial court record, and (3) make any amendments to the pro se petition that
are necessary to adequately present the defendant’s contentions. Postconviction counsel can create
a rebuttable presumption that he or she provided reasonable assistance by filing a Rule 651
certificate. People v. Perkins, 229 Ill. 2d 34, 42, 44 (2007). The defendant may rebut the
presumption created by the filing of a certificate by demonstrating, inter alia, that postconviction
counsel did not make all necessary amendments to the pro se petition. Addison, 2023 IL 127119,
¶ 21. Necessary amendments include those that are necessary to overcome procedural bars. Id.
(citing Perkins, 229 Ill. 2d at 44).
¶ 23 In this case, postconviction counsel did file a certificate pursuant to Rule 651(c) creating a
presumption that she provided reasonable assistance. Mr. Dear maintains, however, that he can
overcome that presumption in this case because counsel failed to make necessary amendments to
his petition to overcome the procedural bar of forfeiture by alleging that appellate counsel was
ineffective in failing to raise the issue of trial counsel’s ineffectiveness on direct appeal. Mr. Dear
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maintains that the proper remedy for counsel’s unreasonable performance is to remand the matter
so that counsel can adequately comply with the rule. In support of his contention that remand is
required due to postconviction counsel’s failure to make necessary amendments to his petition,
Mr. Dear primarily relies on the supreme court’s decision in Addison, 2023 IL 127119.
¶ 24 In Addison, the defendant filed a pro se postconviction petition alleging 15 constitutional
issues, including that his trial counsel rendered ineffective assistance. Id. ¶ 7. In 14 of his 15 claims,
the defendant alleged that his appellate counsel was deficient in failing to raise the issue on direct
appeal. Id. The trial court advanced the petition to the second stage of proceedings and appointed
counsel to represent the defendant. Id. ¶ 8. Postconviction counsel filed an amended petition raising
five claims, four of which alleged ineffective assistance of trial counsel. Id. Unlike the defendant’s
pro se petition, however, none of the claims in the amended petition asserted that appellate counsel
was ineffective in failing to raise the claims on direct appeal. Id. Postconviction counsel filed a
Rule 651(c) certificate stating that she had complied with the rule. Id.
¶ 25 The State filed a motion to dismiss the amended petition, arguing that the defendant’s
claims were forfeited because they could have been raised on direct appeal. Id. ¶ 9. The State
asserted that the defendant had failed to challenge appellate counsel’s strategic decision to not
raise these issues on appeal to avoid forfeiture. Id. The court held a hearing on the State’s motion
to dismiss where the State again argued that the claims in the amended petition could have been
raised on direct appeal and that the amended petition did not allege ineffective assistance of
appellate counsel. Id. ¶ 10. At the hearing, the only questions the trial court judge asked the parties
concerned the State’s forfeiture argument. Id. ¶ 11. The trial court granted the State’s motion to
dismiss, finding that the defendant was not entitled to a third stage evidentiary hearing because he
“ ‘failed to make a substantial showing of any violation of a Constitutional right.’ ” Id. ¶ 12. The
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trial court did not discuss the merits of the defendant’s claims either in open court or in its written
order. Id.
¶ 26 The second district of the appellate court reversed and remanded finding that
postconviction counsel’s failure to make a routine amendment to the petition to overcome the
procedural bar of forfeiture was “patently unreasonable.” (Internal quotation marks omitted.) Id. ¶
14 (citing People v. Addison, 2021 IL App (2d) 180545, ¶ 28). The State appealed, arguing that
the defendant failed to rebut the presumption of reasonable assistance of counsel where
postconviction counsel filed a Rule 651(c) certificate. Id. ¶ 17. The State also contended that the
defendant was not entitled to remand unless he could show he was prejudiced by postconviction
counsel’s allegedly unreasonable performance. Id.
¶ 27 The supreme court first found that postconviction counsel failed to provide the defendant
with reasonable assistance where counsel failed to allege any claims of ineffective assistance of
appellate counsel in the amended petition. Id. ¶¶ 23-24. The court observed that the defendant did
make such allegations in his pro se petition and therefore it was “faced with the unusual situation
in which postconviction counsel, in one significant sense, made the pro se petition worse by
amending it.” Id. ¶ 24. The court further noted that the State’s motion to dismiss focused on
forfeiture, but postconviction counsel never amended the petition to respond to this argument; nor
did counsel address the argument when questioned by the trial court at the hearing on the State’s
motion. Id. ¶ 25. The supreme court concluded that it could not find that counsel provided a
reasonable level of assistance where she failed to make necessary amendments to the petition to
put the claims in their “proper form.” Id. “Worse than that, she eliminated the necessary allegations
that defendant had included in the pro se petition.” (Emphasis in original.). Id.
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¶ 28 The court then considered whether remand was necessary based on counsel’s unreasonable
performance. Id. ¶ 32. The court found, relying on its decision in Suarez, 224 Ill. 2d at 47, that
“[b]ecause counsel did not comply with Rule 651(c), our case law dictates that the cause should
be remanded without a consideration of whether the petition’s claims have merit.” Id. ¶ 33
Consistent with Suarez, the Addison court held that the failure to comply with Rule 651(c) could
not be excused on the basis of harmless error. Id. (citing Suarez, 224 Ill. 2d at 51-52). The court
found that remand was appropriate so that postconviction counsel could comply with Rule 651(c).
Id. ¶ 44.
¶ 29 Mr. Dear contends, as in Addison, that postconviction counsel’s failure to shape his
ineffective assistance of counsel claim into a proper legal form rebuts the presumption that counsel
complied with Rule 651(c) and requires remand regardless of the merits of the claim. However,
we find that there are key distinctions between the circumstances in this case and those present in
Addison that render the holding in Addison inapplicable here.
¶ 30 First, in Addison, the defendant included claims of ineffective assistance of appellate
counsel in his pro se petition that were removed by postconviction counsel in the amended petition.
The State, in its motion to dismiss, then argued that the defendant had forfeited his ineffective
assistance of trial counsel claims because the amended petition did not allege the ineffective
assistance of appellate counsel. Despite this argument, postconviction counsel did not amend the
petition to respond to the State’s argument or make the required allegations regarding appellate
counsel at the hearing on the State’s motion. In this case, by contrast, Mr. Dear did not include a
claim for ineffective assistance of appellate counsel in his pro se petition that was later removed
by postconviction counsel.
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¶ 31 More importantly, however, the State did not argue in its motion to dismiss that Mr. Dear
had forfeited his claim that trial counsel provided ineffective assistance based on the failure to
raise a claim for ineffective assistance of appellate counsel. The State did argue that Mr. Dear had
forfeited any claim that the trial court erred during the jury selection process because he did not
raise the issue in a motion for new trial or on direct appeal. Mr. Dear points out that the State did
make a blanket argument in the conclusion of its motion that “[p]etitioner has failed to make a
substantial showing that his constitutional rights were violated, and furthermore all of his claims
are forfeited and lack support.” However, this claim must be viewed in the context of the entire
motion where the State argued that Mr. Dear’s 2-1401 claims were untimely, and therefore
forfeited, that his claims were not properly supported by affidavits, and therefore “procedurally
defective,” that his claims relating to the trial court’s rulings during jury selection had been
forfeited, and that his claim relating to improper jury instructions had been forfeited. By contrast,
in addressing the ineffective assistance of counsel claim for failing to use a peremptory challenge
to strike D.G., the State addressed the merits of the claim, arguing that Mr. Dear could not establish
that he was prejudiced by any alleged deficient performance because he could not demonstrate that
D.G. was biased.
¶ 32 Mr. Dear nonetheless maintains that the State’s arguments are not determinative of whether
postconviction counsel was required to amend the petition. Mr. Dear asserts that Addison focuses
on the responsibilities of postconviction counsel, not the State. However, the distinction is
important here because the State’s arguments inform whether postconviction counsel was required
to amend the petition to respond to an argument of forfeiture. In this case, in contrast with Addison,
forfeiture did not permeate the proceedings such that postconviction counsel’s failure to address it
was unreasonable. Unlike in Addison, the circuit court here did not ask postconviction counsel
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about forfeiture at the hearing on the State’s motion and the State did not argue at the hearing that
forfeiture was warranted. Instead, the State contested the merits of the claim and the circuit court
addressed the merits. The circuit court determined that trial counsel’s decision not to use a
peremptory challenge to strike D.G. was a matter of trial strategy. Matters of trial strategy are
generally immune from claims of ineffective assistance. People v. Smith, 195 Ill. 2d 179, 188
(2000). The court therefore granted the State’s motion to dismiss on that basis.
¶ 33 In contrast, in Addison, the State argued that remand was not required because the circuit
court dismissed the defendant’s petition on the merits, rather than on the basis of forfeiture.
Addison, 2023 IL 127119, ¶ 39. The supreme court rejected this argument, finding that it was not
possible to discern from the record that forfeiture did not play a part in the circuit court’s decision.
Id. ¶ 40. The supreme court noted that the circuit court did not indicate in either its oral
pronouncement or its written order why the defendant’s claim lacked merit. Id. The circuit court
did, however, ask defense counsel why the claims raised in the petition could not have been raised
on direct appeal. Id. When defense counsel could not answer the question, the court stated, “
‘[e]verything that has been presented by way of the amended [postconviction petition] are
arguments that I believe could have been made on direct appeal.’ ” Id. The supreme court
determined that although the trial court did not explicitly state that it was dismissing the petition
on forfeiture grounds, “it is clear from the record that the trial court ruled on the petition under the
belief that all of the claims could have been made on direct appeal and there was no allegation of
ineffective assistance of appellate counsel in the petition.” Id.
¶ 34 Part of the rationale underlying the holdings in Addison and Suarez is that the reviewing
courts should not usurp the role of the circuit court by deciding matters that should be decided in
the “ ‘first instance’ ” by the circuit court. Id. ¶ 33 (quoting Suarez, 224 Ill. 2d at 51-52). That is,
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this court should not address the merits of the defendant’s claims to determine whether the
defendant was prejudiced where the circuit court was deprived of the opportunity to analyze the
merits of the petition because counsel’s unreasonable performance in neglecting to make necessary
amendments to the petition prevented the circuit court from reaching the merits. This consideration
is not present in this case because, as discussed, the circuit court here had the opportunity to address
the merits of Mr. Dear’s claim in the “first instance,” and there is no indication forfeiture played a
role in its ruling. We can think of no sound basis to remand this matter to the circuit court so that
postconviction counsel can amend the petition to address a procedural argument that was not raised
by the State or considered by the circuit court, resulting in the circuit court entering the same ruling
based on the claim’s lack of merit. Accordingly, we find the circumstances in Addison
distinguishable from the case at bar, and find that Mr. Dear has not overcome the presumption that
counsel provided reasonable assistance.
¶ 35 Finally, Mr. Dear contends that postconviction counsel provided unreasonable assistance
because she was unfamiliar with the record of the trial proceedings as evidenced by her inability
to correctly recall how many peremptory challenges trial counsel used during jury selection. Mr.
Dear points out that counsel could not answer the court’s questions about whether trial counsel
used all of her peremptory challenges by the end of jury selection. Mr. Dear notes that the record
shows that trial counsel used only three of her seven challenges, and that postconviction counsel’s
unfamiliarity with the record prejudiced him because counsel could have rebutted the court’s
determination that trial counsel elected to not use a peremptory challenge on D.G. because she was
more concerned about other prospective jurors.
¶ 36 At the hearing on the State’s motion to dismiss the petition, the court asked postconviction
counsel whether trial counsel had peremptory challenges available to strike D.G. Postconviction
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counsel responded that she did because D.G. was the fourth juror and trial counsel had seven total
peremptory challenges available. The court then asked postconviction counsel whether trial
counsel used all of her challenges by the end of jury selection. Counsel responded that he was not
sure. The court then asked the assistant State’s attorney (ASA) if he knew the answer, and the ASA
responded, “I’m looking, Judge. I don’t see any proof of that yet.” The court acknowledged that
trial counsel had peremptory challenges available and that trial counsel moved to strike D.G. for
cause, but found that:
“I don’t think *** that you can fault a lawyer by not using a peremptory challenge just
because of a person’s occupation, even when it’s a police officer and they have to rely on
testimony of other police officers, that wasn’t the foreperson, that by itself—you know that
you have a limited amount of peremptory challenges and there are other people that could
be on the venire that the lawyer would have much more concern about than this particular
person, which apparently they found acceptable—I don’t think that’s grounds to upset a
conviction.”
¶ 37 Thus, the record shows that postconviction counsel argued that trial counsel had
peremptory challenges available, that she could have used a peremptory challenge to strike D.G.,
and that trial counsel was ineffective in failing to do so where she had demonstrated her concern
about D.G. when she moved to strike him for cause. Although postconviction counsel did not know
whether trial counsel ultimately used all of her peremptory challenges by the end of jury selection,
the key element underlying the ineffective assistance of counsel claim was that trial counsel had
peremptory challenges available to strike D.G., which postconviction counsel sufficiently argued.
The circuit court nonetheless granted the State’s motion to dismiss, finding that trial counsel’s
decision not to use a peremptory challenge was a matter of trial strategy and the court would not
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find prejudice simply because D.G. was a police officer. On this record, we cannot say that Mr.
Dear has rebutted the presumption that postconviction counsel provided a reasonable level of
assistance.
¶ 38 We further find unpersuasive the authority Mr. Dear cites in support of his argument that
postconviction provided unreasonable assistance based on his unfamiliarity with the record. First,
People v. Knight, 2020 IL App (1st) 170550, ¶¶ 30-32 involved counsel’s performance at a third
stage evidentiary hearing. The supreme court has instructed that a comparison between cases
considering unreasonable assistance claims at the third stage and the second stage is “illogical”
because Rule 651(c) governs counsel’s duties at the second stage while the third stage is governed
by a different standard. Addison, 2023 IL 127119, ¶ 38. Nonetheless, in Knight, this court had
previously remanded the cause for a third stage evidentiary hearing where postconviction counsel
failed to provide the circuit court with “key facts” from the defendant’s retrial and resentencing.
Knight, 2020 IL App (1st) 170550, ¶ 45 (citing People v. Knight, 2014 IL App (1st) 122931-U, ¶
33). The court specifically instructed postconviction counsel to present these facts to the circuit
court at the hearing. Id. Nevertheless, on remand, postconviction counsel again failed to argue
these key facts, rendering the prior remand “ ‘illusory.’ ” Id. ¶ 46. Therefore, unlike postconviction
counsel in Knight who failed to argue the salient facts underlying the defendant’s postconviction
claims, counsel here sufficiently argued the “key facts” that trial counsel had peremptory
challenges available to strike D.G., but did not use them.
¶ 39 In People v. Kelly, 2012 IL App (1st) 101521, ¶ 40, this court remanded for further second
stage proceedings where the defendant’s petition had been pending for nearly 12 years. The court
observed that the defendant’s privately retained attorney “either lacked basic knowledge of the Act
or fundamentally misunderstood it” where he asked at a hearing whether the petition was at the
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second stage of proceedings and what the proper standard of review was at that stage. Id. Counsel
also failed to attach necessary exhibits and affidavits to the amended petition and failed to cite
controlling United States Supreme Court precedent to support the defendant’s claims. Id. ¶¶ 31-
32. Under these circumstances, this court found that postconviction counsel failed to shape the
defendant’s claims into the proper legal form and provided an unreasonable level of assistance
under Rule 651(c). Id. ¶ 41. In this case, the record shows that postconviction counsel did not lack
basic knowledge of the Act, ably argued in support of the ineffective assistance of trial counsel
claim, and did not neglect Mr. Dear’s petition for more than a decade.
¶ 40 Likewise, in People v. Johnson, 2022 IL App (1st) 190258-U, ¶ 38 and People v. Atkins,
2022 IL App (1st) 200302-U, ¶ 27 postconviction counsels failed to attach necessary records,
affidavits, and other documents to the petition. In Johnson, the record also demonstrated “[b]ased
on counsel’s pleadings, statements, unreasonable delays, and general performance throughout, it
is quite apparent that counsel was not familiar with the record or the basic requirements of the
Act.” Johnson, 2022 IL App (1st) 190258-U, ¶ 38. In Atkins, the record demonstrated that
postconviction counsel was “inexperienced at postconviction proceedings,” informing the court
that he was “new at this” and was unfamiliar with what “docketing” the petition meant. Atkins,
2022 IL App (1st) 200302-U, ¶ 27 n. 4. In this case, as discussed, there is no suggestion that
postconviction counsel failed to attach required documents to the petition and the record shows
that counsel was familiar with the record and the basic requirements of the Act.
¶ 41 Finally, in People v. Barmore, 2022 IL App (2d) 200449-U, ¶ 55, postconviction counsel
omitted “key allegations” from the amended petition and failed to attach readily available
affidavits. He also raised a claim that was barred by res judicata. Id. Under these circumstances,
the second district questioned the adequacy of counsel’s review of the record. Id. In this case,
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postconviction counsel did not omit key allegations and did not fail to attach any supporting
documentation. Counsel also did not raise a claim that was precluded by res judicata. Accordingly,
we find the authority cited by Mr. Dear unpersuasive and find that postconviction counsel provided
a reasonable level of assistance under Rule 651(c).
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
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