2020 IL App (1st) 170550 No. 1-17-0550 Opinion filed September 30, 2020
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 96 CR 123(03) ) TYWON KNIGHT, ) The Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Tywon Knight appeals from the denial of his petition for postconviction
relief.
¶2 After a jury trial, defendant was convicted of first degree murder, aggravated
kidnapping, and aggravated vehicular hijacking and received consecutive sentences, for a total
of 145 years with the Illinois Department of Corrections (IDOC). Codefendant Richard Morris
was convicted of the same offenses and received consecutive sentences, for a total of 105 years. No. 1-17-0550
¶3 Defendant’s postconviction petition alleges that his sentence is unconstitutionally
disparate from Morris’s sentence. On appeal from the dismissal of this petition at the second
stage, this court found that postconviction counsel had provided unreasonable assistance, and
we reversed and remanded for third-stage proceedings. Specifically, we found that counsel had
provided inaccurate “sentencing information as to defendant and Morris.” People v. Knight,
2014 IL App (1st) 122931-U, ¶ 25.
¶4 On this appeal, defendant claims, among other things, that the trial court erred by
reappointing the same counsel whom this court already found to have provided unreasonable
assistance and that the counsel again provided unreasonable assistance by again providing
inaccurate sentencing information to the trial court. After examining the record, we find
defendant’s claims persuasive. For the reasons explained below, we reverse and remand for
new third-stage proceedings with different counsel.
¶5 BACKGROUND
¶6 These offenses stem from the shooting death of Ervin Shorter on December 2, 1995. In
December 1998, defendant and Morris were tried simultaneously to separate juries. This court
previously described the evidence at trial in other prior orders in this case, which we
incorporate by reference. People v. Knight, No. 1-99-0532 (Oct. 3, 2003) (unpublished order
under Illinois Supreme Court Rule 23) (direct appeal); People v. Knight, No. 1-07-0578 (Oct.
9, 2009) (unpublished order under Illinois Supreme Court Rule 23) (postconviction petition);
Knight, 2014 IL App (1st) 122931-U (prior order regarding this same postconviction petition).
2 No. 1-17-0550
¶7 The State’s evidence established that, early in the morning of December 2, 1995,
defendant, Morris, Morris’s wife Lyda, 1 and Brian Hoover decided to carjack the victim’s new
Chevrolet Impala, which they had observed in a restaurant parking lot. The three men
approached the victim’s vehicle, held a gun to the victim’s head, entered the vehicle and drove
away with the victim. Lyda followed in a different vehicle. At some point, they stopped and
ordered the victim at gunpoint into the trunk of his own vehicle. A bystander who was driving
behind the victim’s vehicle observed the victim’s wiggling fingers sticking out from the trunk
and called the police. After a couple of more stops and switching of vehicles, defendant and
Morris were driving the victim’s vehicle, which they stopped in an alley and exited.
¶8 An assistant state’s attorney (ASA) testified that defendant made an oral statement
within 24 hours of the offense. Defendant stated that Morris ordered the victim to exit the trunk
and to lay on the ground and that Morris shot the victim twice in the head. Defendant admitted
that he knew Morris had a gun and planned to kill the victim.
¶9 Later that morning, two police officers observed defendant and Morris exiting the
victim’s vehicle. Upon noticing the police, defendant and Morris fled but were apprehended
after a brief pursuit. Along the course of their flight, police recovered two loaded pistols.
Forensic testing established that one of the pistols fired the bullets that killed the victim, who
was found dead in the alley. An autopsy revealed that the victim died of two gunshot wounds
to the head.
1 Since Lyda and codefendant Richard Morris share the same last name, we refer to her by her first name. 3 No. 1-17-0550
¶ 10 At the portion of the trial heard only by Morris’s jury, the State introduced Morris’s
written statement into evidence. In his statement, Morris stated that he targeted the victim
because he thought the victim was a drug dealer, and he admitted shooting the victim.
¶ 11 Also in the portion of the trial heard only by his jury, Morris testified in his own
defense, recanting the statement that he had provided to the ASA and asserting that Hoover
was the shooter. Morris testified that, after they parked in the alley, Hoover ordered the victim
to exit the trunk, and Morris knew that Hoover intended to shoot the victim. Morris testified
that he told Hoover that he “wasn’t going to have nothing to do with it,” and Morris went to
sit in the front seat of the victim’s vehicle, where he heard two gunshots. When Morris was
asked why he had previously told the ASA that he was the shooter, he testified that he was
hoping to arrange a deal for his wife.
¶ 12 After hearing closing arguments and jury instructions, their respective juries found both
defendant and Morris guilty of first degree murder, aggravated vehicular hijacking, and
aggravated kidnapping. Morris was sentenced to death, which was later commuted to life
imprisonment, 2 for the murder and to concurrent 30 years and 15 years for the hijacking and
kidnapping offenses.
¶ 13 At defendant’s sentencing on January 29, 1999, the State argued that the murder was
particularly brutal and heinous and asked for a natural life sentence. In response, defense
counsel observed that the State in its opening statement conceded defendant was not the
shooter. In its opening statement before defendant’s jury, the State had argued: “Richard
Morris pointed that .357 revolver at [the victim] and squeezed that trigger twice. ***
2 Governor George Ryan commuted Morris’s death sentence to life imprisonment without the possibility of parole or mandatory supervised release. People v. Morris, 209 Ill. 2d 137, 139 n.1 (2004). 4 No. 1-17-0550
[Defendant’s] partner shot [the victim].” Defense counsel also noted that defendant was “20,
21 years old at the time” 3 of the offense and asked for a sentence of less than natural life. The
trial court found that “the conduct here was heinous and brutal and indicative of wanton
cruelty” and sentenced defendant to consecutive terms of 100, 30, and 15 years for the murder,
hijacking, and kidnapping offenses, respectively.
¶ 14 On direct appeal, defendant claimed, among other things, that his consecutive and
extended-term sentences violated the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000).
On appeal, this court affirmed defendant’s convictions and sentences but vacated the portion
of the trial court’s sentences requiring consecutive sentences and “remanded for a
determination of whether defendant is required to serve his sentences consecutively.” Knight,
No. 1-99-0532, slip order at 24. Upon remand, the trial court again imposed consecutive
sentences.
¶ 15 While defendant’s direct appeal was pending, he filed a pro se postconviction petition
that the trial court summarily dismissed. This court dismissed the subsequent appeal without
prejudice to defendant’s filing another postconviction petition on the ground that, since he had
not yet been resentenced, he had no conviction. People v. Knight, No. 1-02-1551 (2003)
(unpublished order under Illinois Supreme Court Rule 23). Therefore, he had a right to file
another petition.
¶ 16 In November 2006, defendant filed a pro se postconviction petition alleging ineffective
assistance of appellate counsel. The trial court summarily dismissed it on February 1, 2007,
and this court affirmed. Knight, No. 1-07-0578 (2009) (unpublished order under Illinois
3 Defendant’s presentence investigation report states that defendant’s birthdate was December 27, 1974. The date of the offense was December 2, 1995. Thus, defendant was still 20 years old at the time of the offense. 5 No. 1-17-0550
Supreme Court Rule 23). Another panel of this court mistakenly stated on page one that
defendant’s sentences were “concurrent.” Knight, No. 1-07-0578, slip order at 1. 4 However,
this one word was clearly an oversight error, because the order correctly stated on both pages
eight and nine that the sentences were “consecutive,” and even explained that, on remand, the
trial court had again imposed “the same *** consecutive sentencing.” Knight, No. 1-07-0578,
slip order at 8-9.
¶ 17 On March 18, 2004, the Illinois Supreme Court reversed Morris’s conviction on the
ground that his counsel had provided ineffective assistance of counsel, where “[i]n her opening
statement to the jury, defense counsel readily admitted that [Morris] participated in the
kidnapping and murder” of the victim and also introduced other crimes by Morris. People v.
Morris, 209 Ill. 2d 137, 182, 184, 188 (2004).
¶ 18 After Morris’s retrial in 2006, 5 a jury again found him guilty of first degree murder,
aggravated vehicular hijacking and aggravated kidnapping, for which he was sentenced,
respectively to 60 years, 30 years and 15 years. The jury specifically found that the State failed
to prove beyond a reasonable doubt: (1) “that the murdered person was actually killed by
[Morris]” and (2) “that [the] first degree murder was accompanied by exceptionally brutal or
heinous behavior indicative of wanton cruelty.”
4 Another panel of this court noted the oversight error on page one of the 2009 order. Knight, 2014 IL App (1st) 122931-U, ¶¶ 16, 28. 5 Another panel of this court issued an order concerning this petition that referred to Morris’s “retrial in 2007.” Knight, 2014 IL App (1st) 122931-U, ¶ 17. However, this prior order also observed that, at that time, the “records” for Morris’s retrial had “not been provided to this court.” Knight, 2014 IL App (1st) 122931-U, ¶ 33. Now, the records of Morris’s retrial have been provided to this court, and they show that his retrial occurred in 2006. 6 No. 1-17-0550
¶ 19 At Morris’s resentencing on October 10, 2006, the parties argued over whether the trial
judge could consider Morris’s testimony from his original 1998 trial. 6 The trial judge observed
that the standard for sentencing is different than at trial 7 and he ruled that, in sentencing Morris,
he would consider Morris’s prior trial testimony concerning the offense in question but not the
portions concerning other crimes. During the State’s argument concerning aggravation, the
State observed that, because of the jury’s finding that the State had failed to prove beyond a
reasonable doubt that Morris was the shooter or that the murder was brutal and heinous, it
could not ask the court to sentence Morris to natural life. The State asked the trial court to
sentence Morris to the maximum, which was 60 years for the murder, 30 years for the
hijacking, and 15 years for the kidnapping, for a total of 105 years with consecutive sentences.
¶ 20 After considering factors in aggravation and mitigation, the trial court found that the
evidence established that Morris was “the moving force” in the “plan to rob.” The court further
found that Morris was the shooter and described the offense as follows:
“That plan mistakenly focused upon a regular guy, a working man, simply a citizen
minding his own business on his way home, forced into his car at gun point, into the
trunk of the vehicle, kidnapped, driven to the south side of the—north side of the city,
removed from his own car, then shot to death by Mr. Morris. I think the evidence clearly
reflects that.”
6 The trial judge who presided over Morris’s retrial and resentencing was the same trial judge who had presided over the original 1998 trial and sentencings of both defendant and Morris. 7 “[A] jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997); see People v. Brown, 229 Ill. 2d 374, 385 (2008) (preponderance of the evidence is the standard of proof at sentencing). 7 No. 1-17-0550
The trial court then sentenced Morris to the maximum available sentence, which was a total of
105 years. On appeal, this court affirmed. People v. Morris, No. 1-06-3474 (2009)
(unpublished order under Illinois Supreme Court Rule 23).
¶ 21 On May 7, 2009, defendant filed the pro se postconviction petition that is the subject
of this appeal. In his petition, he alleged, among other things, that his sentence of 145 years is
unconstitutionally disparate from the sentence of 105 years received by Morris because Morris
was the actual shooter. Defendant’s petition advanced to the second stage where counsel was
appointed. On April 17, 2012, the State filed a motion to dismiss which stated, in relevant part:
“[Defendant] was sentenced to consecutive terms of 100, 30 and 15 years
imprisonment for first degree murder, aggravated kidnapping and aggravated vehicular
hijacking. Following appeal, the Illinois Appellate Court affirmed [defendant’s]
convictions, but remanded his case for re-sentencing. [Defendant] was given the same
sentence on all counts, however, all sentences were ordered to be served concurrently.”
(Emphasis in original.)
¶ 22 The statement in the State’s motion that defendant’s sentences were to be served
concurrently is factually incorrect because they were to be served consecutively. Morris’s total
sentence was actually shorter than defendant’s total sentence. However, based on this factual
inaccuracy, the State argued in its motion that defendant’s total sentence was shorter than
Morris’s total sentence:
“[Defendant], however ignores the fact that codefendant’s sentence consists of
consecutive terms of 60 plus 30 plus 15 years’ imprisonment for a composite sentence
of 105 years’ imprisonment. [Defendant’s] sentence consists of concurrent terms of
100, 30 and 15 years’ imprisonment, for a composite term [of] 100 years. In other
8 No. 1-17-0550
words, [defendant] was sentenced to five years less than co-defendant and, therefore,
his sentence is not greater than his co-defendant’s sentence.” (Italics and underlining
in original).
¶ 23 On June 19, 2012, the trial court heard argument on the State’s motion, and the State
repeated its factually inaccurate statement, without any objection from defense counsel. The
State wrongfully asserted that defendant’s total sentence was actually five years less than
Morris’s total sentence. After repeating this accepted fact, the trial court granted the State’s
motion.
¶ 24 On June 20, 2012, defense counsel sent defendant a letter informing defendant that the
trial court had granted the State’s motion. In explanation, counsel’s letter stated: “your
concurrent sentences total 100 years and Morris’ total consecutive sentences was [sic] 105
years.” Thus, counsel’s letter repeated the same factual inaccuracy contained in the State’s
motion and repeated by the trial court.
¶ 25 On July 8, 2012, defendant filed a motion to reconsider in which he asked the trial court
to “appoint him a new reliable and reasonable attorney.” The trial court denied this motion on
August 20, 2012.
¶ 26 On appeal, this court found that defendant’s postconviction counsel failed to provide
reasonable assistance:
“[D]efendant argues his postconviction counsel failed to provide reasonable assistance
by providing the court with accurate sentencing information as to defendant and Morris.
We agree.” Knight, 2014 IL App (1st) 122931-U, ¶ 25.
We reversed and “remanded for an evidentiary hearing on the disparity between defendant’s
145-year sentence and Morris’s 105-year sentence.” Knight, 2014 IL App (1st) 122931-U,
9 No. 1-17-0550
¶ 30. Observing that the records of Morris’s retrial and sentencing were not a part of the
appellate record then before us, we specifically directed that those records and the pertinent
facts in them “should be presented to the circuit court on remand so it may fully consider
defendant’s disparate sentencing claim.” Knight, 2014 IL App (1st) 122931-U, ¶ 33.
¶ 27 On remand, the trial judge who had presided over the second stage proceedings recused
himself, and the matter was assigned to a different judge. On February 9, 2015, the same
postconviction counsel appeared on the matter in front of the new judge. When the court asked
if his client was expected to be there, he replied “[n]ot at all.” The trial court asked him “where
are we on this matter,” and counsel stated that the appellate court had ordered the trial court to
obtain the records relating to Morris’s case. Counsel then presented the trial court with an order
for the records relating to both defendant and Morris.
¶ 28 On April 27, 2015, the prosecutor informed the trial court that she was new to the case,
but she believed there was a claim of unreasonable assistance of postconviction counsel that
had yet to be resolved and she asked the trial court to “determine” that issue. The trial court
found: “there was not a ruling by the Appellate Court of no unreasonable assistance of counsel.
Therefore, I believe that [counsel] can st[a]y on the case.”
¶ 29 On May 18, 2016, the trial court asked counsel to “talk to your client and see why it is
that he’s filing or why he finds it necessary to file other motions when he’s represented by
you.” The trial court asked: “You want him here so you could have that chat with him about
that?” However, counsel indicated it was sufficient for him to talk with defendant on the phone.
¶ 30 On February 2, 2017, the third-stage evidentiary hearing was held without the
introduction of evidence. Instead, it proceeded based solely on argument. Defense counsel
argued:
10 No. 1-17-0550
“it is troublesome that [defendant] was found accountable for the heinous acts of
Mr. Morris who was serving 60 years for the murder compared to Mr. Knight’s 100.
But at Morris’ resentencing, he was found accountable for the acts of Brian Hoover.”
(Emphasis added.)
However, as we observed above, at Morris’s resentencing, the trial court found that Morris was
not simply accountable but rather was the actual shooter. Based on the arguments made, the
trial court was not persuaded that Morris’s and defendant’s sentences were unconstitutionally
disparate and denied defendant’s petition for postconviction relief. Defendant filed a timely
notice of appeal, and this appeal followed.
¶ 31 ANALYSIS
¶ 32 On appeal, defendant argues, among other things, that the trial court erred by
reappointing the same counsel who had provided unreasonable assistance in the same
proceeding and that counsel again provided unreasonable assistance.
¶ 33 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014))
provides a statutory remedy for criminal defendants who claim their constitutional rights were
violated at trial. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not intended to be a
substitute for an appeal; instead, it is a collateral proceeding which attacks a final judgment.
Edwards, 2012 IL 111711, ¶ 21.
¶ 34 The Act provides for three stages of review by the trial court. People v. Domagala,
2013 IL 113688, ¶ 32. At the first stage, the trial court may summarily dismiss a petition only
if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014); Domagala,
2013 IL 113688, ¶ 32.
11 No. 1-17-0550
¶ 35 At the second stage, counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4
(West 2014); Domagala, 2013 IL 113688, ¶ 33. After counsel determines whether to amend
the petition, the State may file either a motion to dismiss or an answer to the petition. 725 ILCS
5/122-5 (West 2014); Domagala, 2013 IL 113688, ¶ 33. At the second stage, the trial court
must determine “whether the petition and any accompanying documentation make a substantial
showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 36 If the defendant makes a “substantial showing” at the second stage, then the petition
advances to a third-stage evidentiary hearing. Domagala, 2013 IL 113688, ¶ 34. At a third-
stage evidentiary hearing, the trial court typically acts as factfinder, determining witness
credibility and the weight to be given particular testimony and evidence and resolving any
evidentiary conflicts. Domagala, 2013 IL 113688, ¶ 34.
¶ 37 Both the State and defendant agree that, since the trial court in the case at bar did not
have to make any credibility determinations at the hearing below, our standard of review is
de novo. Generally, we review a trial court’s denial of a postconviction petition after a third-
stage evidentiary hearing for manifest error, which occurs when an error is plain, evident, and
indisputable. People v. Rodriguez, 402 Ill. App. 3d 932, 939 (2010); see People v. Pellegrini,
2019 IL App (3d) 170827, ¶ 51. However, “[i]f no credibility determinations are necessary,
i.e., no new evidence is presented and the issues are purely legal questions, we review the trial
court’s judgment de novo, unless the presiding judge has some relevant special expertise or
familiarity with the trial or sentencing of the defendant.” Rodriguez, 402 Ill. App. 3d at 939.
In the case at bar, the trial judge was new to the case. She had not presided over the trial or
sentencing or even the prior stage of these postconviction proceedings. Thus, our standard of
12 No. 1-17-0550
review is de novo. De novo consideration means that we perform the same analysis that a trial
judge would perform. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 28.
¶ 38 On appeal, the State argues that counsel complied with Rule 651(c) which governs the
duties of postconviction counsel. Ill. S. Ct. R. 651(c) (July 1, 2017). However, this court has
repeatedly found that “[t]he text of Rule 651(c) does not address counsel’s duties beyond the
second stage of postconviction proceedings.” People v. Custer, 2020 IL App (3d) 160202-B,
¶ 39 n.2; People v. Pabello, 2019 IL App (2d) 170867, ¶ 27 (“Rule 651(c) does not apply once
a postconviction petition has been advanced to the third stage.”); People v. Zareski, 2017 IL
App (1st) 150836, ¶ 59 (Rule 651(c) applies only to duties undertaken at the second stage). “It
would be illogical to measure counsel’s performance at the third stage by a standard applicable
to the distinctly different second stage.” Pabello, 2019 IL App (2d) 170867, ¶ 28.
¶ 39 “[T]he supreme court has rejected that presumption” that Rule 651(c) is the only
measure of reasonable assistance during postconviction proceedings. Pabello, 2019 IL App
(2d) 170867, ¶ 29. In People v. Cotto, 2016 IL 119006, ¶ 41, the court held that “Rule 651(c)
is merely a vehicle for ensuring a reasonable level of assistance [citation] and should not be
viewed as the only guarantee of reasonable assistance in postconviction proceedings.” (Internal
quotation marks omitted.) Thus, “the only standard applicable to a third-stage hearing is that
of general reasonableness.” Pabello, 2019 IL App (2d) 170867, ¶ 29.
¶ 40 The question of whether a trial court is required to appoint new counsel after
postconviction counsel was previously found to have provided unreasonable assistance to the
same defendant in the same proceeding is a purely legal question that we review de novo.
Schlosser, 2017 IL App (1st) 150355, ¶ 28 (issues of what the Act requires are reviewed
de novo).
13 No. 1-17-0550
¶ 41 This court 8 has previously found that it may be error for a trial court to reappoint the
same postconviction counsel who was previously found to have provided unreasonable
assistance. See Schlosser, 2017 IL App (1st) 150355, ¶ 36 (“it was error to reappoint the same
APD [assistant public defender] after this court found that his representation was
unreasonable”); see also People v. Kelly, 2012 IL App (1st) 101521, ¶¶ 40-41 (postconviction
counsel’s failure to provide a reasonable level of assistance required appointment of new
counsel on remand); People v. Nitz, 2011 IL App (2d) 100031, ¶¶ 19, 21 (same); People v.
Jones, 2016 IL App (3d) 140094, ¶¶ 33-34 (same); People v. Shortridge, 2012 IL App (4th)
100663, ¶¶ 14-15 (same).
¶ 42 This case illustrates the wisdom of appointing new counsel once counsel has already
been found by a reviewing court to have rendered unreasonable assistance to the same
defendant in the same proceeding.
¶ 43 The sole claim on remand was whether defendant’s longer sentence was
constitutionally disparate from his codefendant’s shorter one. Knight, 2014 IL App (1st)
122931-U, ¶ 30. Defendant’s petition claimed that they were disparate because Morris was
found to be the actual shooter—a finding, in fact, made at Morris resentencing. This finding
was, thus, the single most important fact underlying defendant’s claim—and counsel stated it
was not made.
¶ 44 The State argues that counsel’s decision not to report the trial court’s finding was
strategy. However, a misstatement cannot be considered strategy.
8 Like today’s decision, Schlosser, 2017 IL App (1st) 150355, was also written by Justice Gordon, with concurrences by Justices Hall and Reyes. 14 No. 1-17-0550
¶ 45 This court has previously found that a remand is necessary, even if the allegations in a
petition were insufficient to raise a constitutional issue, where postconviction counsel failed to
fulfill the few duties imposed by Rule 651(c). Schlosser, 2017 IL App (1st) 150355, ¶¶ 41-44;
People v. Shelton, 2018 IL App (2d) 160303, ¶ 37. Similarly, in the case at bar, a remand is
necessary where counsel failed to fulfill the few duties imposed by this court’s appellate
mandate. People v. Gonzalez, 407 Ill. App. 3d 1026, 1037 (2011) (on remand, the remanding
“opinion must be consulted in determining the appropriate course of action”). “It is axiomatic
that a reviewing court that issues a mandate has the power to enforce the mandate and
determine whether there has been compliance.” Gonzalez, 407 Ill. App. 3d at 1037. In our prior
order, we specifically instructed that the key facts from Morris’s retrial and resentencing must
“be presented to the circuit court on remand so it may fully consider defendant’s disparate
sentencing claim in an evidentiary hearing.” Knight, 2014 IL App (1st) 122931-U, ¶ 33.
¶ 46 At Morris’s resentencing, the trial judge who presided over both the original 1998 trial
and Morris’s retrial found, not only that Morris was the actual shooter, but also that Morris
was “the moving force” behind the robbery plan. Not only did counsel fail to argue these
important findings, but he actually stated just the opposite, arguing that at “resentencing”
Morris was found to be merely accountable. This court remanded specifically so that the trial
court and parties could consider “fully” the records of Morris’s retrial and resentencing.
Knight, 2014 IL App (1st) 122931-U, ¶ 33. Pursuant to our express direction, one of counsel’s
primary tasks on remand was to consider the trial court’s findings at Morris’s resentencing.
This he failed to do. Without new counsel, the prior remand was “illusory.” Schlosser, 2017
IL App (1st) 150355, ¶ 44.
15 No. 1-17-0550
¶ 47 Thus, we remand for a new third-stage evidentiary hearing with appointment of new
counsel, who may amend or supplement the petition as he or she sees fit. 9
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, we reverse and remand for further proceedings consistent
with this opinion.
¶ 50 Reversed and remanded.
9 The State does not argue on appeal that defendant forfeited his claims by not asking the trial court on remand for appointment of new counsel, and “the rules of waiver and forfeiture are also applicable to the State.” People v. Reed, 2016 IL app (1st) 140498, ¶ 13. “The State may forfeit a claim of forfeiture by failing to raise it.” People v. Jones, 2018, IL App (1st) 151307, ¶ 47; see also People v. Bahena, 2020 IL App (1st) 180197 (for a list of cites to other cases for the same proposition). Thus, we find that the State has forfeited any claim of forfeiture with respect to the claims that defendant now raises on appeal. 16 No. 1-17-0550
No. 1-17-0550
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 96-CR- 123(03); the Hon. Neera Lall Walsh, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Todd T. McHenry, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Noah Montague, and Justin R. Erb, Assistant State’s Appellee: Attorneys, of counsel), for the People.