People v. Gordon

• Court: Appellate Court of Illinois
• Decided: May 29, 2026
• Docket: 2-25-0273
• Status: Unpublished

Opinion

2026 IL App (2d) 250273-U No. 2-25-0273 Order filed May 29, 2026

NOTICE: This order was filed under Illinois Supreme Court Rule 23(b) and is not precedential except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

DION J. GORDON, Defendant-Appellant.

Appeal from the Circuit Court of Lake County. Honorable George D. Strickland, Judge, Presiding.

No. 02-CF-2372

JUSTICE McLAREN delivered the judgment of the court. Justices Hutchinson and Jorgensen concurred in the judgment.

ORDER

¶1 Held: Because this appeal presents no issue of arguable merit, we grant appellate counsel’s motion to withdraw, and we affirm the trial court’s judgment denying defendant leave to file a successive postconviction petition.

¶2 Defendant, Dion J. Gordon, appeals the trial court’s order denying him leave to file a

successive postconviction petition. The Office of the State Appellate Defender (OSAD) was

appointed to represent defendant but now moves to withdraw. We agree with appellate counsel

that this appeal presents no issue of arguable merit. Therefore, we grant the motion to withdraw,

and we affirm the trial court’s judgment. ¶3 I. BACKGROUND

¶4 In April 2004, defendant entered a fully negotiated plea of guilty to first degree murder

(720 ILCS 5/9-1(a)(1) (West 2002)) and second degree murder (id. § 9-2(a)). He was sentenced

to consecutive prison terms of 45 years for first degree murder and 12 years for second degree

murder. When defendant committed the offenses, he was 16 years old.

¶5 Defendant did not appeal directly. In April 2007, he filed a pro se petition under the Post-

Conviction Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)), alleging that plea counsel had

rendered ineffective assistance and that the trial court had not properly admonished him. The trial

court summarily dismissed the petition. We affirmed the dismissal. People v. Gordon, No. 2-07-

0784 (2009) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶6 In January 2020, defendant filed a pro se motion for leave to file a successive petition for

relief under section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2018)). Defendant submitted

a proposed petition along with the motion. Defendant contended that his sentence was

unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), which was decided after he pleaded

guilty. Specifically, he claimed that the trial court violated the eighth amendment (U.S. Const.,

amend. VIII), as construed in Miller, by imposing a de facto life sentence of 57 years upon

defendant without considering his youth and its attendant circumstances.

¶7 At a hearing on July 21, 2020, the trial court orally granted defendant leave to file the

successive petition. The court thereby purported to advance the proceedings to the second stage

of review under the Act. See People v. Wilson, 2025 IL App (1st) 230027, ¶ 30 (“If leave to file is

granted, the petition is docketed for second-stage proceedings, at which point the petitioner is

appointed counsel and must make a substantial showing of a constitutional violation warranting

an evidentiary hearing.”); 725 ILCS 5/122-2.1 (West 2018). However, the court did not

-2- specifically find that defendant satisfied section 122-1(f)’s cause-and-prejudice test, which is a

prerequisite for filing a successive petition. See 725 ILCS 5/122-1(f) (West 2018). The court

remarked that it would appoint counsel for defendant. That day, the court entered a written order

appointing counsel for defendant. However, the court did not enter a written order granting leave

to file.

¶8 On June 7, 2021, appointed counsel filed an amended successive petition, which reasserted

the eighth amendment Miller claim and added a claim that defendant’s sentence violated the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Appointed

counsel filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1,

2017).

¶9 In late 2021 or early 2022, the case was assigned to a different judge. On April 13, 2022,

the State moved to dismiss the amended successive petition. In the background section of its

motion, the State noted that the record did not contain a written order granting leave to file. In its

argument, the State contended that defendant’s constitutional challenges to his sentence were

barred by People v. Jones, 2021 IL 126432, ¶¶ 20-26, where the supreme court held that the

defendant’s fully negotiated guilty plea barred his postconviction Miller claim, even though Miller

was not decided until after his plea.

¶ 10 Defendant retained new counsel and, on March 20, 2025, filed a response to the motion to

dismiss. On May 23, 2025, the State filed a supplemental motion to dismiss, again relying on

Jones. On May 27, 2025, the trial court held a hearing on the State’s motion to dismiss. The court

noted that the record contained no written order granting defendant leave to file or any findings on

the cause-and-prejudice issue. Therefore, the court declined to rule on the State’s motion to

-3- dismiss. Retained counsel did not challenge the court’s abstention but asked how to proceed. The

court answered:

“Well, I think what has to happen is I think you have to file the motion or an

amended motion, if you wish, for post-conviction, and then you need to file the requisite

attorney certificate that you have reviewed the record, spoken to your client, you know,

that certificate which has to be filed—which has to be filed in this case also.

Now, as far as timing on that, I would not expect you to have to change. There’s

already been detailed filings as to what the issues are and arguments as to what the cases

say, and so, I mean, you can certainly incorporate by reference, but I think that my finding

has to be based on the statute regarding successive post-conviction petitions. Without that

finding, I think the appellate court could say the [c]ourt was without jurisdiction to rule on

the second stage.”

Thus, if retained counsel wished to file a successive postconviction petition, he would need to file

a motion for leave to file, though counsel could simply incorporate appointed counsel’s proposed

successive petition. Retained counsel would also need to file a Rule 651(c) certificate with the

motion for leave to file.

¶ 11 On June 23, 2025, defendant, by retained counsel, filed (1) a motion for leave to file the

January 2020 successive petition submitted pro se by defendant and the June 2021 successive

petition submitted by appointed counsel, (2) a “supplement” to the January 2020 and June 2021

petitions, and (3) a Rule 651(c) certificate. Defendant incorporated by reference both petitions.

Defendant added no new arguments.

¶ 12 On July 1, 2025, the trial court held a hearing on defendant’s motion for leave to file.

Retained counsel argued that, unlike in Jones, Miller’s protections applied in this case because

-4- Miller dictates that “juvenile offenders may not receive mandatory sentences of life without

parole” (Jones, 2021 IL 126432, ¶ 17). Here, retained counsel explained, the trial court lacked

discretion under the sentencing statute to impose less than a 45-year prison term for first degree

murder.

¶ 13 The trial court agreed with the State that, even though defendant had cause for failing to

bring his eighth amendment Miller claim in his original petition, there was no prejudice because,

under Jones, both of defendant’s sentencing challenges were barred by his fully negotiated guilty

plea. Therefore, because defendant failed to meet the cause-and-prejudice test (see 725 ILCS

5/122-1(f) (West 2018)), the court denied leave to file. Defendant timely appealed. As noted,

OSAD was appointed to represent defendant.

¶ 14 II. ANALYSIS

¶ 15 Per Pennsylvania v Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63

(1993), the appellate defender has moved to withdraw as counsel. In her motion, counsel states

that she has read the record and found no issue of arguable merit. Counsel further states that she

advised defendant of her opinion. Counsel supports her motion with a memorandum of law

providing a statement of facts, a list of potential issues, and arguments as to why those issues lack

arguable merit. We advised defendant that he had 30 days to respond. Defendant filed a response.

¶ 16 In her memorandum of law, appellate counsel suggests three potential issues: (1) whether

the trial court erred in denying leave to file the amended successive postconviction petition

prepared by appointed postconviction counsel and later adopted by retained postconviction

counsel; (2) whether appointed counsel and retained counsel provided reasonable assistance under

Rule 651(c); and (3) whether the State improperly provided input into the trial court’s decision

-5- whether to grant leave to file the amended successive petition. Appellate counsel concludes that

none of these issues has arguable merit. We agree.

¶ 17 As to the first potential issue, appellate counsel asserts that the trial court was correct on

May 27, 2025, to conclude that the prior trial judge’s oral grant of leave to file was ineffective

because the judge failed to expressly determine whether the amended successive petition met the

cause-and-prejudice test under section 122-1(f) of the Act. See People v. Ford, 2022 IL App (1st)

211538, ¶¶ 4-5. Therefore, according to appellate counsel, the trial court was correct to decide

anew whether the cause-and-prejudice test for filing a successive petition was met. See id.

Appellate counsel further contends that the court was correct on the substantive merits of the cause-

and-prejudice issue. Appellate counsel alternatively argues that, if the oral grant of leave to file

was effective such that the trial court’s proceeding was in fact a second-stage review under the Act

(see Wilson, 2025 IL App (1st) 230027, ¶ 30), the court was correct in dismissing the petition.

¶ 18 Under section 122-1(f) of the Act, a defendant who wishes to file a successive

postconviction petition must show (1) cause for his failure to raise the issue in his original petition

and (2) prejudice resulting from the omission. 725 ILCS 5/122-1(f) (West 2018). “If leave to file

is granted, the petition is docketed for second-stage proceedings, at which point the petitioner is

appointed counsel and must make a substantial showing of a constitutional violation warranting

an evidentiary hearing.” Wilson, 2025 IL App (1st) 230027, ¶ 30. To survive a motion to dismiss

at the second stage, a petition must make a substantial showing of the deprivation of a

constitutional right. People v. Domagala, 2013 IL 113688, ¶ 35. Appellate counsel contends that,

based on Jones, it would be frivolous to argue that defendant satisfied either test.

¶ 19 In Jones, the defendant entered a fully negotiated guilty plea to three offenses that he

committed when he was 16 years old. Jones, 2021 IL 126432, ¶¶ 3-4. He was sentenced to

-6- concurrent prison terms of 50 years for first degree murder, 30 years for each of two counts of

armed robbery, and 15 years for residential burglary. Id. ¶ 4. He did not move to withdraw the

plea and did not appeal. Id. ¶ 6. He filed a postconviction petition, the denial of which was

affirmed on appeal. Id. Thereafter, he moved for leave to file a successive petition claiming an

eighth amendment violation under Miller, which was decided after his guilty plea. Id. ¶ 7. The

trial court denied leave to file, and the supreme court affirmed. Id. ¶¶ 7, 31. As pertinent here, the

court held that, by entering a knowing and voluntary guilty plea, the defendant waived any non-

jurisdictional errors, including constitutional ones (and he did not claim that the trial court lacked

jurisdiction to accept the plea). Id. ¶ 20. The court explained that an otherwise valid plea “ ‘does

not become vulnerable because later judicial decisions indicate that the plea rested on a faulty

premise.’ ” (Emphasis in original.) Id. ¶ 23 (quoting Brady v. United States, 397 U.S. 742, 757

(1970)); see also Dingle v. Stevenson, 840 F.3d 171, 175 (4th Cir. 2016). Thus, the defendant’s

“knowing and voluntary guilty plea waived any constitutional challenge based on subsequent

changes in the applicable law.” Jones, 2021 IL 126432, ¶ 26.

¶ 20 The Jones court alternatively concluded that Miller did not apply to the defendant’s

sentence. Id. ¶¶ 27-28. The court explained that Miller “appl[ies] only when a trial court lacks, or

refuses to use, discretion in sentencing a juvenile offender to a life, or de facto life, sentence.” Id.

¶ 28. The court held that the trial court exercised its discretion when it accepted the plea with the

proposed sentencing terms. Id. ¶ 27-28.

¶ 21 Jones squarely applies here. As in Jones, defendant entered a fully negotiated guilty plea.

His motion for leave to file and his amended successive petition did not claim that his plea was

not knowing or voluntary or that the trial court lacked jurisdiction to accept it. Therefore, under

Jones, defendant has waived his constitutional sentencing challenges. See id. ¶ 26. Moreover,

-7- Miller’s protections do not apply to defendant’s sentences because the trial court exercised

discretion in accepting the plea agreement with specific sentencing terms. See id. ¶¶ 27-28. Thus,

regardless of whether defendant has shown cause for neglecting to raise his constitutional

sentencing claims in his initial postconviction petition, he cannot, for purposes of section 122-1(f)

of the Act, show prejudice from the omission. See 725 ILCS 5/122-1(f) (West 2018) (a defendant

“shows prejudice by demonstrating that the claim not raised during his or her initial post-

conviction proceedings so infected the trial that the resulting conviction or sentence violated due

process”). Likewise, defendant’s amended successive petition fails to make a substantial showing

of a constitutional violation. Therefore, the first potential issue is frivolous.

¶ 22 On the second potential issue, appellate counsel notes that a postconviction petitioner is

entitled to the reasonable assistance of counsel. People v. Huff, 2024 IL 128492, ¶ 21. “To ensure

that postconviction petitioners receive reasonable assistance, Rule 651(c) delineates specific duties

that postconviction counsel must undertake in postconviction proceedings.” Id. ¶ 22. Rule 651(c)

states in pertinent part:

“The record filed in that court shall contain a showing, which may be made by the

certificate of petitioner’s attorney, that 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, has examined the record of the proceedings at the trial, and 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. July 1, 2017).

¶ 23 We agree with appellate counsel that appointed counsel’s certificate conformed with the

foregoing requirements. Because appointed counsel complied with the rule, a rebuttal presumption

arose that appointed counsel provided reasonable assistance by “ascertain[ing] the basis of

-8- [defendant’s] complaints, shap[ing] those complaints into appropriate legal form, and present[ing]

them to the court.” People v. Lesley, 2018 IL 122100, ¶ 33. Reasonable assistance, however, is

no guarantee that a defendant’s claims, even as appropriately shaped, will succeed. People v. Celis,

2026 IL App (2d) 250067-U, ¶ 9. Nothing in the record rebuts the presumption that appointed

counsel provided reasonable assistance.

¶ 24 As for retained counsel, appellate counsel concedes that his Rule 651(c) certificate was

facially deficient because it specified that he reviewed “the common law record” but did not

mention the reports of proceedings. But, under People v. Smith, 2022 IL 126940, ¶ 38, as appellate

counsel points out, retained counsel “was not required to independently demonstrate compliance

with Rule 651(c).” This is because retained counsel did not undertake representation on

defendant’s original, pro se petition; rather, appointed counsel “had already undertaken the Rule

651(c) requirements and thus ascertained whether any amendments were necessary to shape

[defendant’s] complaints into the proper legal form.” Id. ¶ 32. Clearly, retained counsel was

required to provide reasonable assistance, but Rule 651(c) is not “the exclusive mechanism for

ensuring reasonable assistance.” Id. ¶ 25; see also People v. Richmond, 188 Ill. 2d 376, 380 (1999)

(“Counsel may file a certificate to show that the requirements of [Rule 651(c)] were complied

with, or the record as a whole may demonstrate that the lawyer complied with those provisions.”).

As appellate counsel notes, retained counsel provided reasonable assistance in his limited role:

because appointed counsel’s motion for leave to file was not properly ruled on, retained counsel

filed a new motion and adopted appointed counsel’s amended postconviction petition so that

defendant could properly seek further postconviction proceedings. Therefore, we agree that the

second potential issue is frivolous.

-9- ¶ 25 As to the third potential issue, appellate counsel observes that, after the prior trial judge

orally granted leave to file, the State filed a motion to dismiss (which it later supplemented), even

while acknowledging that the record contained no written order granting leave to file. Appellate

counsel suggests that “the State’s input in the proceedings was arguably improper if the cause was

still in the leave to file stage.” See People v. Lusby, 2020 IL 124046, ¶ 29 (the State is not allowed

to participate at the leave-to-file stage of successive postconviction proceedings). However,

counsel also notes that, in the interest of judicial economy, a reviewing court may nonetheless

decide the cause-and-prejudice issue on the merits. See id. ¶ 29 n.1; People v. Conway, 2019 IL

App (2d) 170196, ¶ 23. Appellate counsel concludes that because the constitutional sentencing

challenges raised by the amended successive petition clearly fail the cause-and-prejudice test, any

argument that the State improperly participated in the section 122-1(f) decision would be frivolous.

We agree.

¶ 26 In his response to appellate counsel’s motion to withdraw, defendant contends first that

retained counsel performed unreasonably by failing to challenge the trial court’s finding that the

prior trial judge did not properly grant leave to file. Defendant cannot show prejudice from the

inaction, because, as we have held, the amended successive petition lacked arguable merit anyway.

¶ 27 Defendant next contends that retained counsel performed unreasonably by failing to further

amend the successive petition to address “whether [defendant’s] claims could be distinguished

from Jones to establish cause and prejudice.” At the hearing on defendant’s motion for leave to

file, retained counsel did argue that Jones is distinguishable, and the trial court considered

counsel’s arguments. In any event, no prejudice resulted, because, as we have held, Jones simply

cannot be distinguished.

- 10 - ¶ 28 Defendant contends next that retained counsel performed unreasonably by failing to add

claims that, in various respects, the proceedings in the underlying case violated his rights. This

argument is meritless for two reasons. First, these claims either were raised or could have been

raised in defendant’s initial postconviction petition. Therefore, they would have been barred by

res judicata. See People v. Guerrero, 2012 IL 112020, ¶ 17. Second, reasonable assistance does

not require postconviction counsel to raise claims that defendant missed. “Post-conviction counsel

is only required to investigate and properly present the petitioner’s claims.” (Emphasis in original.)

People v. Davis, 156 Ill. 2d 149, 164 (1993); see also People v. Vasquez, 356 Ill. App. 3d 420, 424-

25 (2005).

¶ 29 Finally, defendant argues that the State improperly provided input at the leave-to-file stage

of the proceeding. Defendant notes Lusby’s holding that, in cases of improper State input at the

leave-to-file stage, a reviewing court may decide the leave-to-file issue instead of remanding for

the trial court to do so. See Lusby, 2020 IL 124046, ¶ 29 n.1. Defendant contends that Lusby does

not require the reviewing court “to always conduct an independent cause-and-prejudice analysis.”

But obviously, the reviewing court may choose to do so if it is appropriate. See Conway, 2019 IL

App (2d) 170196, ¶ 23. Here, a remand would be pointless, because, as we have held, the

constitutional sentencing challenges raised in the amended successive petition are clearly

meritless.

¶ 30 III. CONCLUSION

¶ 31 After examining the record, the motion to withdraw, the memorandum of law, and the

response, we agree with counsel that this appeal presents no issue of arguable merit. Thus, we

grant the motion to withdraw, and we affirm the judgment of the circuit court of Lake County.

¶ 32 Affirmed.

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