2020 IL App (1st) 171452-U
THIRD DIVISION September 30, 2020
No. 1-17-1452
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 94 CR 27214 ) WENDELL HUDSON a/k/a WILLIAM HILL, ) Honorable ) Joseph M. Claps, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Burke concurred in the judgment.
ORDER
¶1 Held: The trial court’s denial of defendant’s postconviction petition after an evidentiary hearing was not manifestly erroneous where appellate counsel was not ineffective for failing to raise a nonmeritorious claim that standby counsel interfered with defendant’s right to self-representation.
¶2 Defendant Wendell Hudson a/k/a William Hill appeals the trial court’s denial of his
postconviction petition following a third stage evidentiary hearing. On appeal, defendant argues
that the trial court’s denial was manifestly erroneous because he made a substantial showing that
his appellate counsel was ineffective for failing to assert that his standby trial counsel interfered
with his right to self-representation. No. 1-17-1452
¶3 In October 1994, defendant was arrested after he and two codefendants were observed
committing a burglary of a Venture store, located at 4443 South Pulaski Road in Chicago, by an
off-duty police officer working as a security guard. Defendant then fled the scene in a truck that
had been reported stolen and was pursued by the off-duty officer. Defendant crashed into a pole
at a Chicago Housing Authority (CHA) property and the CHA security guard apprehended him.
¶4 At a February 1995 hearing, defendant filed a pro se motion for appointment of counsel
other than the public defender’s officer. The court denied defendant’s request, stating “The
public defenders are full time for that express purpose. You wish to have your own counsel you
may do so, or if you wish to represent yourself, you may do so.” Defendant then stated that he
wished to “exercise” his sixth amendment right to represent himself. The court advised defendant
that he could make that decision between that date and March 30, and warned that the charges
were serious where jail could be involved. Defendant asked what the charges were, and the State
responded that the case involved possession of a stolen motor vehicle and burglary. The court
then admonished him that if he had two or more Class 2 prior convictions, the minimum
sentence would be 6 years with a maximum of 30 years, and depending on the circumstances the
sentence could be enhanced to up to 60 years, as well as an additional three years of mandatory
supervised release (MSR). The case was then continued to March 30, 1995.
¶5 At the subsequent status hearing on March 30, 1995, defendant’s counsel informed the
trial court that defendant had told her that he wished to represent himself. Defendant again
informed the court that he had a motion for appointment of counsel other than the public
defender’s office. He stated that he had a “conflict of interest with the Public Defender’s Office
because of the fact that [he] had filed ineffective assistance of counsel on three different public
defenders” and he did not feel that he could be represented properly by the public defender’s
2 No. 1-17-1452
office. The court again advised defendant that his two choices were to represent himself or obtain
his own private counsel and denied defendant’s motion. Defendant then stated that he had a pro
se motion to quash his arrest and suppress evidence. Defendant informed the court that he would
be representing himself. The case was continued to the next court date.
¶6 At the May 1995 hearing, defendant again reiterated that he wished to represent himself
on his motion to quash arrest and suppress evidence. Defendant asked if it was possible to have
his former public defender act as co-counsel. The court asked former defense counsel to sit in on
the motion and to “serve as an advisor” for defendant. The codefendants’ attorneys then
presented opening statements on their respective motions to quash arrest. When it was
defendant’s turn for an opening statement, the standby counsel stated,
“Mr. Hill has asked me to make an opening statement on his behalf. I have
advised him that I don’t believe the particular motion lies which is being argued
by him. He is now discussing that with me. He and I have discussed this at length
over the last few months.”
¶7 The court then told defendant that he was welcome to make opening remarks or he could
adopt the opening remarks of the other attorneys. Defendant stated that he wanted to adopt their
remarks. The parties then proceeded on the motion. The standby counsel did not participate in
the remainder of the hearing. Defendant called two witnesses for the motion and engaged in
direct and redirect examination. He also cross-examined the State’s witness. The motion hearing
was continued to a later date.
¶8 When the motion hearing continued in August 1995, the standby counsel, acting as
standby counsel, stated that she had subpoenaed all of defendant’s witnesses and spoke with a
witness to confirm availability for that day. Defendant then called and questioned one witness.
3 No. 1-17-1452
The motion was again continued. At a later status date in October 1995, the trial court stated that
the prior standby counsel had been moved to another courtroom and a new public defender was
appointed to act as standby counsel for defendant. Defendant presented additional witnesses at
subsequent hearing dates for his motion to quash arrest. In December 1995, the trial court denied
defendant’s motion.
¶9 In May 1996, prior to the start of the jury trial, the trial court admonished defendant about
the charges against him, the possible penalties if he was found guilty, and his right to choose a
jury or bench trial. Defendant stated that he wanted a jury trial. The trial court recommended that
defendant have an attorney represent him at trial, but defendant responded that he would
represent himself “under protest” because of a conflict of interest between defendant and the
public defender’s office. Standby counsel indicated that she sent out subpoenas for defendant’s
requested witnesses. After the jury was seated, the parties gave opening statements. In his
opening statement, defendant stated that at approximately 10:15 p.m. on October 25, 1994, he
was “present over two miles away from the Venture Store. [He] was no where [sic] near the
alleged stolen truck that was taken by force.” Defendant was “taken by force from the back of his
home to this truck and charged with possession of the truck and then burglary to the Venture
Store.”
¶ 10 The following is a summary of evidence presented at defendant’s 1996 jury trial taken
from another panel of this court’s decision on defendant’s direct appeal.
“Briefly stated, on October 25, 1994, Chicago police officer William
[Kazupski] was working while off-duty as a security guard for Venture. About 10
p.m., he noticed that a white truck was parked on the street along the parking lot
fence, the fence had been cut and a door on one of the Venture storage trailers
4 No. 1-17-1452
was open. He saw defendant inside of the trailer handing merchandise to
codefendants [Elijah] Rockett and Ricky Johnson who were standing outside. He
announced his office and told the defendants to ‘freeze,’ but they ran. As Officer
[Kazupski] ran to his car, defendant returned to the white truck and drove away. A
chase ensued until defendant’s truck struck a pole and stopped. Defendant then
ran on foot toward some row houses. He was eventually apprehended by a
security guard for the row houses.
After police officers arrived at the scene, Officer [Kazupski] returned to
the Venture parking lot where he inspected the trailer and found that the lock had
been broken. Officer [Kazupski] later verified that the merchandise in the white
truck driven by defendant belonged to Venture, that defendant was neither an
agent nor employee of the store and that defendant had no authority to remove
merchandise from the trailer. It was also subsequently determined that the white
truck had been stolen from a business several days prior to the incident.” People
v. Hill, No. 1-96-2817 (1998) (unpublished order under Supreme Court Rule 23).
¶ 11 Prior to the start of the second day of the trial, the trial court asked defendant about his
witnesses. Standby counsel stated that three witnesses were present under subpoena, but were not
feeling very well. After the State rested its case and the jury was excused, standby counsel
moved for a directed verdict on defendant’s behalf, which the trial court denied. At that point, a
discussion took place between the court and the parties regarding defense witnesses after
defendant had released his witnesses for the day. Standby counsel stated:
“I had interviewed the witnesses. I explained to [defendant] I did not think
they would help him in this case and, in fact, I think from what they told me
5 No. 1-17-1452
happened that they would hurt [defendant’s] case. And that the only time they
could testify would be today. It was his decision of whether he was going to
release them or not, and I asked him what his decision was.”
¶ 12 Defendant explained that he wanted the case continued to give him the opportunity to
have his alibi witnesses back in court. He stated they had to leave to pick up children from
school and had thought the case would be over earlier in the day. Standby counsel then stated:
“Your Honor, again to make it clear so [defendant] understands, when I
talked to the witnesses they said [defendant] was not in the house. First time they
saw him was after he was in custody. In fact, Ms. Dodson said when she saw
[defendant] he was running past her house. I don’t -- they did not indicate any
kind of alibi defense at that time.”
¶ 13 The prosecutor objected to the introduction of an alibi defense because it was the first
time it had been raised since opening statements and prior discovery did not list an affirmative
defense.
¶ 14 Defendant complained that he felt the court and the State were being “fundamentally
unfair” to him and not allowing him to “put on some kind of defense.” The trial court declined to
continue the case. Following this discussion, defendant indicated that he did not want to testify
on his own behalf and the case was continued to a third day for closing arguments. Prior to
closing arguments, defendant informed the court that his witnesses were present and he wanted
to put them on the stand. He stated the witnesses would testify regarding where defendant was
arrested, time of arrest, the exact locations, and the officers involved. The prosecutor observed
that there was no dispute in where defendant was arrested and the officers involved. The trial
court denied defendant’s request to call the witnesses. Following arguments, the jury found
6 No. 1-17-1452
defendant guilty of burglary and possession of a stolen motor vehicle. The trial court
subsequently sentenced defendant to concurrent terms of 16 years in the Department of
Corrections. Defendant was required to be sentenced as a Class X offender based on his
numerous prior convictions, including multiple convictions for burglary and theft.
¶ 15 On direct appeal, defendant argued that (1) he was denied his sixth amendment right to
counsel at his sentencing hearing and (2) his sentences were excessive. Hill, No. 1-96-2817, at 1.
(1998) (unpublished order under Supreme Court Rule 23). The reviewing court observed that
defendant failed to raise either issue in his posttrial motion and were forfeited, but the court
found that forfeiture aside, the claims lacked merit. Id. at 3.
¶ 16 Regarding the right to counsel, the court observed that “defendant voluntarily, knowingly
and intelligently waived his right to counsel” and was properly admonished prior to waiving his
right to counsel. Id. at 4. The court concluded that defendant’s right to counsel was not violated
because when asked by the trial court the reason he needed counsel, defendant expressed a need
for counsel to correct his presentence investigation report, which was then corrected. No other
request for appointment of counsel was made by defendant. Id. at 5. Additionally, the reviewing
court found “no basis” for defendant’s claim of an excessive sentence. The court found no abuse
of discretion by the trial court because defendant was required to be sentenced as a Class X
offender based on his extensive criminal history and the sentences imposed were within the
statutory ranges for each offense. Id. at 6.
¶ 17 In November 1997, defendant filed his initial pro se postconviction petition and alleged
that his constitutional rights were violated under the fourth, fifth, sixth, and fourteenth
amendments to the United States Constitution. The trial court summarily dismissed the petition
in January 1998. In December 1998, the appellate court affirmed the dismissal and granted the
7 No. 1-17-1452
appellate counsel’s motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987).
People v. Hill, No. 1-98-0465 (1998) (unpublished order under Supreme Court Rule 23). In July
2005, defendant filed a pro se petition for habeas corpus, alleging that he was denied his right to
due process because of a violation of Brady v. Maryland. 373 U.S. 83 (1963). The attorney
general contested jurisdiction because the prison warden was not served. The trial court agreed
and dismissed the petition without prejudice. On appeal, the appellate court concluded that it
lacked jurisdiction to consider the dismissal of the petition and, accordingly, it dismissed the
appeal and granted appellate counsel’s motion to withdraw as counsel pursuant to Finley. People
v. Hill, No. 1-06-3357 (2007) (unpublished order under Supreme Court Rule 23.)
¶ 18 In September 2011, defendant filed his pro se motion for leave to file a successive
postconviction petition. In his successive petition, defendant alleged that (1) his appellate
counsel on direct appeal was ineffective; (2) the trial judge “abused his discretion and authority;”
(3) an officer’s name was “forged” on the arrest report; (4) the prosecution “knowingly used and
solicited perjury testimony [sic] from its witnesses during trial;” (5) the trial judge “never
questioned [defendant] about the legal rules of proceedings, his knowledge of persenting [sic]
evidence, his level of education (6th grade), and when an [sic] when not to object;” (6) his right
to confront witnesses was violated because his witnesses were not allowed to testify; (7) standby
counsel “did not try in any way to help [defendant] through the trial.;” and (8) he was denied his
request for appointment of counsel at sentencing. In October 2011, the trial court granted
defendant leave to file his successive postconviction petition. Postconviction counsel was
appointed in June 2012.
¶ 19 In July 2013, defendant, through counsel, filed his amended successive postconviction
petition. The amended petition alleged only that defendant was denied effective assistance of
8 No. 1-17-1452
appellate counsel on direct appeal for failing to raise two claims: (1) defendant’s waiver of
counsel was not knowing and intelligent because the role of standby counsel was never properly
defined by the trial court; and (2) standby counsel’s actions interfered with defendant’s right to
self-representation by undermining his motion to quash arrest and suppress evidence. In May
2014, the State filed a motion to dismiss defendant’s amended successive postconviction
petition. Following briefing and arguments, the trial court denied the motion to dismiss in
February 2015 and advanced the petition for a third stage evidentiary hearing. The trial court
denied the State’s motion to reconsider in March 2015.
¶ 20 In October 2015, the parties proceeded by stipulation at the evidentiary hearing. The
evidentiary hearing in this case was considered simultaneously with defendant’s separate
postconviction petition evidentiary hearing in an unrelated prior conviction. Defendant presented
a copy of his record on appeal from his prior proceedings and a copy of People v. English, 2013
IL 112890. The parties presented a stipulation from defendant’s first standby counsel from
pretrial proceedings. If called to testify, counsel would state that she did not (1) instruct
defendant on “how to proceed at any time during the proceedings;” (2) make any decisions on
defendant’s behalf, nor did she argue or present any issue on his behalf; (3) cross-examine any
witness on his behalf, nor did she object or argue any objections; (4) make any opening
statements or closing arguments on defendant’s behalf; and (5) tell defendant that she would act
as his attorney while defendant was proceeding pro se. The stipulation further stated that “other
than the defendant’s request to have [standby counsel] present an opening statement at the
motion to quash and suppress hearing and participate in jury selection, there is no evidence in the
record that the defendant requested [standby counsel] to act on his behalf in any other matters.”
However, while defendant stipulated that standby counsel would provide that testimony if called
9 No. 1-17-1452
to testify, he contested the relevancy of the testimony. The State moved for a directed finding,
which the trial court denied. The State submitted an affidavit from defendant’s public defender
assigned to the appeal and a report of proceedings from the arguments on the State’s motion to
dismiss as well as a copy of the State’s motion to dismiss. The affidavit from appellate counsel
and the State’s motion to dismiss are not included in the record on appeal. The parties rested, but
reserved argument until after the trial court reviewed the exhibits.
¶ 21 At the next court date in December 2015, defense counsel renewed his objection to the
stipulation from standby counsel, arguing it was irrelevant because the issue in the petition was
the ineffectiveness of appellate counsel and “any testimony from trial counsel that’s outside the
record would not be relevant.” The prosecutor agreed and withdrew the stipulation.
¶ 22 Defense counsel then argued that the affidavit from appellate counsel showed “a level of
bias” against defendant based on counsel describing defendant as “very difficult to deal with,
overly demanding, unrealistic.” Defense counsel argued that the appellate counsel stated
defendant had filed a complaint against him with the Attorney Registration and Disciplinary
Commission (ARDC) and that also demonstrated bias against defendant. Defense counsel further
argued that the trial court could find the credibility of appellate counsel to be “questionable”
because after reviewing the record, he maintained that there was no issue that had any chance of
success on appeal. Defense counsel asserted this was contrary to the trial court’s findings in the
postconviction proceedings. Defendant then stood on his petition and memorandum.
¶ 23 The prosecutor argued that the record contradicted defendant’s argument that his waiver
of counsel was “not voluntary.” The prosecutor further argued that while defendant complains
that the trial court failed to define the role of standby counsel, defendant showed “nothing in
support of that at any point, except for one thing.” The prosecutor contended that the standby
10 No. 1-17-1452
counsel was appointed the day the motion to suppress was before the court and she stated that
“we discussed it at length, the motion to quash the arrest is frivolous and I’m not doing it for you
because I’m an advisor. She never did anything on his behalf except advise him that his motion
was frivolous.” The prosecutor also argued that the allegation that the waiver was not voluntary
was res judicata because the appellate court found that “the issue arose about his initial
appointment, his initial request to go pro se was voluntarily, knowingly and intelligently made.”
The prosecutor concluded that standby counsel “never infringed on [defendant’s] right to
proceed pro se. Only evidence is that she respected it and protected it.” The prosecutor also
maintained that the appellate counsel “was in no way prejudiced or biased against the
defendant,” noting that in addition to the appeal, counsel filed a petition for rehearing and a
petition for leave to appeal to the supreme court.
¶ 24 In May 2016, the trial court entered a written order denying defendant’s successive
postconviction petition and found that appellate counsel’s decision not to raise the issues did not
amount to deficient performance which prejudiced defendant’s appeal. In the order, the court
found that defendant “was aware of the nature of the charge against him, the consequences he
faced, and the right to counsel that he was abandoning.” The court found defendant’s claims that
the court “did not clearly define his role or standby counsel’s role” were “effectively refuted by
the State.” Regarding defendant’s claim that appellate counsel failed to raise to the issue of
standby counsel’s interference with defendant’s ability to represent himself, the court observed
that defendant’s argument was limited to standby counsel’s statement in court that she declined
to make an opening statement on defendant’s motion to quash arrest. The court found that “[a]ny
assumption that standby counsel would make the opening statement would have been somewhat
baseless given that counsel had discussed his motion’s lack of merit in the months preceding the
11 No. 1-17-1452
hearing.”
“Further, it does not follow that because standby counsel did not make the
opening statement that petitioner was entirely, precluded from making the
opening statement. If petitioner’s counsel had given the opening statement, she
would have exceeded her role of advisor as designated by the court.”
¶ 25 The trial court further reasoned.
“[Defendant] has not herein alleged or established that standby counsel prevented
him from accomplishing something he intended to accomplish or would have
been able to accomplish if standby counsel had not prevented him from doing so
either through unreasonable advice or direct action. Indeed, such a showing is
necessary to establish that any actual interference occurred. Thus, it cannot be
said that standby counsel’s refusal to make the opening statement or the
comments she made in so doing amount to an interference with his 6th
amendment right to self-representation.
[Defendant] provides no other examples, of his expectation that he could
turn to counsel for assistance beyond that of an advisor, other than the instance
where standby counsel declined to make an opening statement on his motion. As
noted above, [defendant’s] misunderstanding was corrected at that point. The
record does not reflect a later instance during trial wherein [defendant] relied on
standby counsel for assistance and was denied. The lack of later instances of such
reliance on being assisted is likely due to the fact that he had no such expectation
after he was corrected at the outset. Although this court agrees that counsel’s
statement that [defendant’s] motion ‘did not lie’ may have been extraneous and
12 No. 1-17-1452
somewhat unsupportive of [defendant’s] position, it cannot be said that counsel’s
conduct constituted interference or that counsel interfered with his right to self-
representation throughout the proceedings.”
¶ 26 Defendant filed a motion to reconsider in May 2016, which the trial court denied in
February 2017.
¶ 27 This appeal followed.
¶ 28 The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1
through 122-8 (West 2016)) 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) (West 2016);
People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to
constitutional deprivations that occurred at the original trial. Id. 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). “The purpose
of [a postconviction] proceeding is to allow inquiry into constitutional issues relating to the
conviction or sentence that were not, and could not have been, determined on direct appeal.”
People v. Barrow, 195 Ill. 2d 506, 519 (2001). Thus, res judicata bars consideration of issues
that were raised and decided on direct appeal, and issues that could have been presented on direct
appeal, but were not, are considered forfeited. People v. Blair, 215 Ill. 2d 427, 443-47 (2005).
¶ 29 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 2016). If the circuit court does not dismiss the
postconviction petition as frivolous or patently without merit, then the petition advances to the
13 No. 1-17-1452
second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4
(West 2016)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West
2016)). 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. 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
2016).
¶ 30 At an evidentiary hearing, “the circuit court serves as the fact finder, and, therefore, it is
the court’s function to determine witness credibility, decide the weight to be given testimony and
evidence, and resolve any evidentiary conflicts.” People v. Domagala, 2013 IL 113688, ¶ 34. “At
an evidentiary hearing, the burden is on the defendant to make a substantial showing of a
deprivation of constitutional rights***.” People v. Coleman, 206 Ill. 2d 261, 277 (2002). Since
the trial court makes factual and credibility determinations, the court’s decision will not be
reversed unless it is manifestly erroneous. People v. English, 2013 IL 112890, ¶ 23. “ ‘Manifest
error’ is error which is clearly plain, evident, and indisputable.” People v. Taylor, 237 Ill. 2d 356,
373 (2010). “Thus, a decision is manifestly erroneous when the opposite conclusion is clearly
evident.” People v. Coleman, 2013 IL 113307, ¶ 98. “The burden of convincing a reviewing
court that a trial court’s decision was manifestly erroneous is a heavy one.” People v. Jones,
2012 IL App (1st) 093180, ¶ 49.
¶ 31 As observed above, the record on appeal does not contain the affidavit from defendant’s
appellate counsel or the State’s motion to dismiss defendant’s successive petition. Both items
were offered by the State at defendant’s evidentiary hearing. Defendant, as the appellant, bears
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the burden of providing a sufficiently complete record to support its claims of error. People v.
Smith, 406 Ill. App. 3d 879, 886 (2010); see also Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984). Any doubt arising from the incompleteness of the record will be construed against
defendant. Id.
¶ 32 On appeal, defendant argues that the trial court erred in denying his successive
postconviction petition because he made a substantial showing of ineffective assistance of
appellate counsel for failing to raise a claim on direct appeal that his standby counsel interfered
with his right to self-representation. Defendant has not challenged his claim that appellate
counsel was ineffective for not asserting his waiver of counsel was not knowing and voluntary
on appeal and has therefore forfeited that claim. People v. Munson, 206 Ill. 2d 104, 113 (2002)
(concluding that the petitioner abandoned several postconviction claims by failing to raise them
on appeal).
¶ 33 In the underlying claim, defendant contends that his right to self-representation was
interfered with prior to and during trial by both of his standby counsels and “these interferences
substantially affected his ability to make tactical decisions and present his defense.” As the State
points out, defendant asserts for the first time on appeal that his standby counsel during trial
interfered with his right to self-representation in her statement to the court that “she did not
believe the three witnesses that [defendant] wished to put on the stand would be beneficial to him
because it undermined his ability to present his defense.”
¶ 34 Illinois courts have consistently held that a claim not raised in the postconviction petition
cannot be raised for the first time on appeal. Pendleton, 223 Ill. 2d at 475; People v. Jones, 213
Ill. 2d 498, 505 (2004). Section 122-2 of the Post-Conviction Act specifically provides that “the
petition shall *** clearly set forth the respect in which petitioner’s constitutional rights were
15 No. 1-17-1452
violated,” and, section 122-3 provides that “[a]ny claim of substantial denial of constitutional
rights not raised in the original or amended petition is waived” (725 ILCS 5/122-2 (West 2016);
725 ILCS 5/122-3 (West 2016)). While our supreme court may relax the forfeiture rule by
invoking its supervisory power, this court “is not free, *** to excuse, in the context of
postconviction proceedings, an appellate waiver caused by the failure of a defendant to include
issues in his or her postconviction petition.” Jones, 213 Ill. 2d at 508.
¶ 35 In his reply brief, defendant concedes that he did not “specifically point to [trial standby
counsel’s] remarks for his interference of standby counsel claim in his petition, but his
allegations alleged interference by ‘standby counsel.’ ” According to defendant, trial standby
counsel’s actions were “encompassed within his allegation against standby counsel.” Defendant
relies on People v. Townsend, 2020 IL App (1st) 171024, to support his claim that the argument
has not been forfeited. However, defendant’s reliance on Townsend is misplaced.
¶ 36 In that case, the reviewing court was reviewing the first-stage summary dismissal of the
defendant’s pro se postconviction petition whereas this case is on appeal following an
evidentiary hearing. Given the different stage of proceedings, the burden on the defendant in
Townsend was significantly lower where the defendant needed to only present the gist of a
constitutional claim. There, the defendant raised a claim of ineffective assistance of his first
attorney for usurping the defendant’s right to waive a jury trial in his petition, but a second
attorney ultimately stated the defendant’s decision to have a jury trial. Id. ¶ 38. The reviewing
court considered whether the defendant’s petition set forth an arguable claim of ineffective
assistance of counsel despite failing to reference the second attorney. Id. The petition alleged that
the defendant’s first attorney was ineffective for not allowing the defendant to have a bench trial.
Id. ¶ 43. The reviewing court concluded that the defendant’s petition set forth “an arguable claim
16 No. 1-17-1452
that his first attorney told him he did not have the choice to waive a jury trial and the circuit court
was to take this allegation as true.” Id.
¶ 37 Here, we are not reviewing whether defendant set forth an arguable claim of interference
by standby counsel following a summary dismissal. Rather, defendant’s petition was amended by
an appointed attorney and an evidentiary hearing was conducted. This new claim of interference
by the trial standby counsel was never raised in the amended petition and no evidence or
argument regarding this claim was presented at the evidentiary hearing. Moreover, the supreme
court has “stressed the importance of applying the forfeiture rule uniformly except in compelling
situations because failure to raise a claim properly denies the trial court an opportunity to correct
an error or grant a new trial, thus wasting time and judicial resources.” People v. Thompson, 238
Ill. 2d 598, 612 (2010). Because defendant never raised this claim in the trial court, the court was
not allowed the opportunity to consider whether defendant’s claim had merit and no evidence or
argument was presented at the evidentiary hearing. Defendant has not argued that this case
presents a compelling reason to relax the forfeiture rule. Since this issue was not raised in his
postconviction petition, defendant’s claim of interference by his trial standby counsel has been
forfeited and cannot be asserted for the first time on appeal.
¶ 38 Defendant’s only claim before this court is whether his appellate counsel was ineffective
for failing to raise the interference of defendant’s initial standby counsel on direct appeal. Claims
of ineffective assistance of counsel are resolved under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of appellate counsel claims are also
subject to Strickland. English, 2013 IL 112890, ¶ 33. In Strickland, the Supreme Court
delineated a two-part test to use when evaluating whether a defendant was denied the effective
assistance of counsel in violation of the sixth amendment. Under Strickland, a defendant must
17 No. 1-17-1452
demonstrate that counsel’s performance was deficient and that such deficient performance
substantially prejudiced defendant. Strickland, 466 U.S. at 687. To demonstrate performance
deficiency, a defendant must establish that counsel’s performance fell below an objective
standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). “A defendant is
entitled to reasonable, not perfect, representation, and mistakes in strategy or in judgment do not,
of themselves, render the representation incompetent.” People v. Fuller, 205 Ill. 2d 308, 331
(2002). “Counsel’s strategic choices are virtually unchallengeable. Thus, the fact that another
attorney might have pursued a different strategy, or that the strategy chosen by counsel has
ultimately proved unsuccessful, does not establish a denial of the effective assistance of
counsel.” Id.
¶ 39 In evaluating sufficient prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. If a case may be disposed of on the ground of lack of
sufficient prejudice, that course should be taken, and the court need not ever consider the quality
of the attorney’s performance. Strickland, 466 U.S. at 697. “Strickland requires actual prejudice
be shown, not mere speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122, 135 (2008).
¶ 40 A defendant who claims that appellate counsel was ineffective for failing to raise an issue
on appeal must allege facts demonstrating such failure was objectively unreasonable and that
counsel’s decision prejudiced defendant. People v. Rogers, 197 Ill. 2d 216, 223 (2001).
Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not
incompetence of counsel to refrain from raising issues which, in his or her judgment, are without
merit, unless counsel's appraisal of the merits is patently wrong. People v. Simms, 192 Ill. 2d
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348, 362 (2000). Thus, the inquiry as to prejudice requires that the reviewing court examine the
merits of the underlying issue, for a defendant does not suffer prejudice from appellate counsel’s
failure to raise a nonmeritorious claim on appeal. Simms, 192 Ill. 2d at 362. Appellate counsel’s
choices concerning which issues to pursue are entitled to substantial deference. Rogers, 197 Ill.
2d at 223.
¶ 41 The State first argues that defendant’s claim is barred by res judicata because “he could
have raised his standby-counsel interference claim in his initial post-conviction petition.” The
State fails to cite any authority to support its contention in this single paragraph argument.
Illinois Supreme Court Rule 341(h)(7) requires an appellant to include in its brief an
“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with
citation of the authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. July
1, 2008). It is well-settled that a contention that is supported by some argument but does not cite
any authority does not satisfy the requirements of Rule 341(h)(7), and bare contentions that fail
to cite any authority do not merit consideration on appeal. Wasleff v. Dever, 194 Ill. App. 3d 147,
155-56 (1990). Arguments unsupported by citation to relevant legal authority are considered as
forfeited on appeal. Id.
¶ 42 Further, “the doctrine of res judicata bars consideration of issues that were previously
raised and decided on direct appeal.” People v. Blair, 215 Ill. 2d 427, 443 (2005). Forfeiture
refers to “issues that could have been raised, but were not, and are therefore barred.” Id. at 444.
In the trial court, the State had argued that defendant’s claim that his waiver of counsel was not
voluntary was barred by res judicata because the issue had been decided on direct appeal, which
the trial court rejected in its order. As noted above, defendant has not raised whether his waiver
was voluntary on appeal. The State now asserts that the trial court made no finding regarding res
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judicata as to defendant’s claim of interference by standby counsel. However, the State did not
argue at the evidentiary hearing that the interference claim was barred by res judicata or
forfeiture, but rather argued the merits of the claim. The doctrine of forfeiture applies equally to
the State and the State may forfeit an argument that the defendant forfeited a claim by failing to
raise it earlier. People v. McKown, 236 Ill. 2d 278, 308 (2010) (citing People v. Williams, 193 Ill.
2d 306, 347 (2000)). As the supreme court put it, “[i]n effect, the State forfeited its ability to
argue forfeiture by the defendant.” Id. Since the State never raised forfeiture of this claim in the
postconviction proceedings in the trial court, it has forfeited its own ability to raise the claim for
the first time in this court.
¶ 43 Turning to the merits, we examine whether defendant’s contention that his initial standby
counsel interfered with his right to self-representation has merit to support his claim of
ineffective assistance of appellate counsel. “Both the Federal and State Constitutions grant to an
accused the right of self-representation in criminal proceedings.” People v. Gibson, 136 Ill. 2d
362, 374-75 (1990) (citing U.S. Const., amends. VI, XIV; Ill. Const.1970, art I, § 8); see also
Faretta v. California, 422 U.S. 806, 821 (1975) (“The Sixth Amendment, when naturally read,
thus implies a right of self-representation.”). “The right of self-representation does not carry with
it a corresponding right to legal assistance; one choosing to represent himself must be prepared
to do just that.” People v. Redd, 173 Ill. 2d 1, 38 (1996). The trial court has “broad discretion to
appoint counsel for advisory or other limited purposes” and “to determine the nature and extent
of standby counsel’s involvement.” Id. “Even where a trial court appoints standby counsel, the
constitutional right to self-representation does not require a court to permit a ‘hybrid’
representation in which a defendant alternates between representing himself and having counsel
represent him.” Id. “ ‘[T]he pro se defendant is entitled to preserve actual control over the case
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he chooses to present to the jury,’ and counsel’s unsolicited participation ‘should not be allowed
to destroy the jury’s perception that the defendant is representing himself.’ ” Gibson, 136 Ill. 2d
at 377-78 (quoting McKaskle v. Wiggins, 465 U.S. 168, 178 (1984)).
¶ 44 “Standby counsel may assist a pro se defendant ‘in overcoming routine procedural or
evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or
objecting to testimony, that the defendant has clearly shown he wishes to complete’ and may also
help ‘ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.’ ”
People v. Simpson, 204 Ill. 2d 536, 562 (2001) (quoting McKaskle, 465 U.S. 168, 183 (1984)). A
pro se defendant’s right to represent himself is infringed if standby counsel makes or
substantially interferes with any significant tactical decisions, controls questioning of witnesses,
or speaks on defendant’s behalf on any matter of importance. People v. Ellison, 2013 IL App
(1st) 101261, ¶ 51 (citing McKaskle, 456 U.S. at 178).
“A defendant’s right to self-representation plainly encompasses certain
specific rights to have his voice heard. The pro se defendant must be allowed to
control the organization and content of his own defense, to make motions, to
argue points of law, to participate in voir dire, to question witnesses, and to
address the court and the jury at appropriate points in the trial.” McKaskle, 456
U.S. at 174.
¶ 45 The trial judge, who allows a defendant to represent himself through the proceedings and
“supervises the protection of the right throughout the trial, must be considered capable of
differentiating the claims presented by a pro se defendant from those presented by standby
counsel.” Id. at 179. “Accordingly, the appearance of a pro se defendant’s self-representation
will not be unacceptably undermined by counsel’s participation outside the presence of the jury.”
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Id. A defendant’s right to self-representation is
“adequately vindicated in proceedings outside the presence of the jury if the pro
se defendant is allowed to address the court freely on his own behalf and if
disagreements between counsel and the pro se defendant are resolved in the
defendant’s favor whenever the matter is one that would normally be left to the
discretion of counsel.” Id. at 179.
¶ 46 In the instant case, defendant asserts that standby counsel interfered with right to
represent himself when she declined to give an opening statement on defendant’s motion to
quash arrest and suppress evidence. This pretrial motion occurred before the jury trial had begun
and was heard by the trial court. After codefendants’ attorneys had each given their respective
opening statements on their motions to quash arrest, standby counsel informed the court:
“Mr. Hill has asked me to make an opening statement on his behalf. I have
advised him that I don’t believe the particular motion lies which is being argued
by him. He is now discussing that with me. He and I have discussed this at length
¶ 47 Defendant contends that standby counsel’s “statement to the court that she did not believe
the motion was meritorious to [defendant] interfered with [defendant’s] ability to represent
himself on the motion before he could litigate it.” According to defendant, standby counsel’s
statement substantially interfered with his ability “to make significant tactical and strategic
decisions.” He argues that counsel’s statement imparted her own beliefs into the case and
frustrated his ability to defend himself and led defendant “to adopt the opening statements of his
co-defendants, which were certainly not tailored to defend him.”
¶ 48 In Simpson, 204 Ill. 2d at 562, the Illinois Supreme Court considered a similar claim
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where the defendant asserted to his right to self-representation and then claimed his standby
counsel was ineffective in assisting him during trial. The defendant urged the supreme court “to
extend the duties of standby counsel to encompass preparation of a legal defense and mitigation
even when the defendant opts to assert his constitutional right to self-representation.” Id. The
defendant contended that his standby counsel was ineffective for failing to investigate certain
mitigation evidence. Id. at 563. The court rejected the defendant’s argument and observed that it
was defendant’s responsibility to prepare a legal defense and mitigation throughout trial and
sentencing. Id. at 564. The supreme court stated:
“To succeed on a claim of this nature, defendant should be required to
establish that the actions of standby counsel prevented defendant from
accomplishing something he otherwise intended to accomplish or would have
been able to accomplish if standby counsel had not prevented him from doing so,
either through unreasonable advice or direct action.” Id. at 566.
¶ 49 Here, it was defendant’s burden to set forth a substantial showing of a deprivation of his
constitutional rights. However, defendant has not alleged that standby counsel’s action prevented
him from accomplishing something he intended to accomplish or would have been able to
accomplish. Defendant has not asserted that standby counsel substantially interfered by making
any significant tactical decisions, controlling the questioning of witnesses, or speaking on
defendant’s behalf on any matter of importance. See Ellison, 2013 IL App (1st) 101261, ¶ 51
(citing McKaskle, 456 U.S. at 178). Rather, the record supports the opposite conclusion.
Defendant controlled the organization and content of his own defense, made motions, argued
points of law, participated in voir dire, questioned witnesses, and addressed the court and the
jury at appropriate points in the trial. See McKaskle, 456 U.S. at 174. Given her limited role,
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standby counsel should not have given the opening statements at the motion to quash arrest.
Additionally, it is well established that opening statements are not evidence. See People v.
Burton, 338 Ill. App. 3d 406, 417 (2003).
¶ 50 Further, the disagreement between defendant and standby counsel was resolved in
defendant’s favor because defendant was not prevented from giving an opening statement.
Instead, defendant was offered the opportunity to make the opening statement himself, but chose
to adopt opening statements from his codefendants. Defendant then proceeded on the motion to
quash arrest over several dates between May and December 1995. Standby counsel did not
participate in the hearing, but did issue subpoenas for all of defendant’s requested witnesses.
Defendant called multiple witnesses on the motion and engaged in direct and cross examination.
While the trial court denied the motion, there is no suggestion that standby counsel’s statement to
the court had any impact on the trial court’s ruling. Instead, defendant offers vague conclusory
assertions that the statement “frustrated his ability to defend himself,” but fails to offer any
example of how this statement impacted his trial proceedings.
¶ 51 Moreover, defendant’s motion to quash arrest and suppress evidence lacked merit. At the
conclusion of his case on the motion, defendant argued that Officer Kazupski “had no
jurisdiction” once he left the Venture store and “no power to arrest” because he was off duty and
working as a security guard at that time. This argument is meritless because a police officer has
“a duty, seven days a week, 24 hours a day, to maintain public order,” and Officer Kazupski was
performing that duty when he observed defendant committing a burglary. People v. Smith, 342
Ill. App. 3d 289, 295 (2003) (citing People v. Barrett, 54 Ill. App. 3d 994, 996-97 (1977)).
“ ‘[T]he fact that a police officer is on or off duty, or in or out of uniform[,] is not
controlling. “It is the nature of the act performed, not the clothing of the actor or
24 No. 1-17-1452
even the status of being on duty, or off duty, which determines whether the officer
has acted under color of law.” ’ ” Barrett, 54 Ill. App. 3d at 996 (quoting Stengel
v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), quoting Johnson v. Hackett, 284
F.Supp. 933, 937 (E.D.Pa.1968)). See also Banks v. City of Chicago, 11 Ill. App.
3d 543, 549-50 (1973) (“The nature of a policemen’s job is that he be fit and
armed at all times, whether on or off duty, and subject to respond to any call to
enforce the laws and preserve the peace.”)
Officer Kazupski was well within his role as both a police officer and security guard to effectuate
defendant’s arrest. Thus, the trial court correctly found the arrest to have been legal and denied
the motion after noting that it had heard the evidence “over a seven-month period of time.”
Defendant did not challenge the trial court’s denial of his motion to quash arrest on direct appeal
or in either of his postconviction petitions, including the petition at issue in this case.
¶ 52 The record established that defendant’s right to self-representation was “adequately
vindicated” where he was able to speak freely before the trial court and present his case on the
motion in full. Defendant failed to satisfy the burden required at the evidentiary hearing. As the
trial court found, “it cannot be said that standby counsel’s refusal to make the opening statement
or the comments she made in so doing amount to an interference with his 6th amendment right to
self-representation.” After finding standby counsel did not interfere with defendant’s right to
right to defend himself, the trial court concluded that “appellate counsel’s decision not to raise
[this issue] did not amount to deficient performance which prejudiced [defendant’s] appeal.”
Based upon the record on appeal, defendant has not established any of the factors for interference
of standby counsel, i.e., that standby counsel made or substantially interfered with any
significant tactical decisions, controlled questioning of witnesses, or spoke on defendant’s behalf
25 No. 1-17-1452
on any matter of importance, and we find that the trial court’s findings were not against the
manifest weight of the evidence. Accordingly, the trial court’s denial of defendant’s
postconviction petition following an evidentiary hearing was not manifestly erroneous.
¶ 53 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
¶ 54 Affirmed.