People v. Mischke

2024 IL App (2d) 240031, 257 N.E.3d 639

• Court: Appellate Court of Illinois
• Decided: December 12, 2024
• Docket: 2-24-0031
• Status: Published

Opinion

2024 IL App (2d) 240031 No. 2-24-0031 Opinion filed December 12, 2024 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 10-CF-4384 ) 11-CF-142 ) DONALD J. MISCHKE JR., ) Honorable ) Mark L. Levitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Kennedy concurred in the judgment and opinion. Justice Jorgensen dissented, with opinion.

OPINION

¶1 After a bench trial, defendant, Donald J. Mischke Jr., was convicted of first degree murder

(felony murder) (720 ILCS 5/9-1(a)(3) (West 2010)) and driving under the influence of a

controlled substance (cocaine) (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)) and was

sentenced to concurrent prison terms of 26 and 7 years, respectively. On appeal, he contended that,

inter alia, the trial court erred in making the sentences concurrent, as they were mandatorily

consecutive. People v. Mischke, 2014 IL App (2d) 130318, ¶ 6 (Mischke I). We agreed, vacated

the imposition of concurrent sentences, and remanded for resentencing. Id. ¶¶ 8, 25. On remand, 2024 IL App (2d) 240031

the trial court imposed the same sentences but made them consecutive. People v. Mischke, 2018

IL App (2d) 160472, ¶ 7 (Mischke II). Defendant appealed, and we affirmed. Id. ¶¶ 1, 19.

¶2 Defendant then petitioned pro se for relief under the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 to 122-7 (West 2018)), contending that (1) the evidence did not prove felony

murder beyond a reasonable doubt, (2) his trial counsel and his counsel in his initial direct appeal

(appellate counsel) were ineffective for failing to raise the reasonable-doubt issue, and

(3) appellate counsel was ineffective for contending that the sentences must be consecutive.

Defendant retained postconviction counsel, who filed a supplemental petition. The trial court

granted the State’s motion to dismiss the petition. Defendant appeals. We affirm.

¶3 I. BACKGROUND

¶4 In case No. 11-CF-142, defendant was charged with felony murder 1 and DUI. The felony

murder charge alleged that defendant, while in flight from the police after committing a burglary

(720 ILCS 5/19-1(a) (West 2010)), drove his vehicle into a vehicle driven by Elisha Idleburg,

causing her death. The case was joined for trial with case No. 10-CF-4384, in which defendant

was charged with aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-

204.1(a)(1) (West 2010)), burglary, and retail theft (720 ILCS 5/16A-3(a) (West 2010)).

¶5 We turn to the trial evidence pertinent to this appeal. The testimony of three employees of

the Target store at 3050 North Lewis Avenue in Waukegan established that, at approximately 2

a.m. on December 23, 2010, an individual drove a black Mazda into the store’s locked entrance

door, forcibly opening it, and entered the store. The employees called the police.

¶6 Waukegan police officer Cesar Garcia testified as follows. He was dispatched to a Target

store at approximately 1:50 a.m. on December 23, 2010. He was in full uniform and driving a

1 Several other charges were later dismissed on the State’s motion.

-2- 2024 IL App (2d) 240031

marked squad car. A car was parked on the south side of the building. A man, later identified as

defendant, exited the store carrying a large package. He put the package inside the car and got into

the driver’s seat. With his emergency lights activated, Garcia approached the car, drew his gun,

and ordered defendant out. Defendant drove away. Garcia entered his squad car, radioed other

officers, and drove off after defendant.

¶7 Garcia pursued defendant through the alley behind the Target and another store and then

across the parking lot. When defendant left the parking lot and drove south on Lewis Avenue,

Garcia turned off his emergency lights and radioed that he was ending the pursuit. Nonetheless,

Garcia continued south on Lewis Avenue. He saw a squad car driving north in the southbound

lane, head-on toward defendant’s car. Defendant swerved around the squad car and continued

south on Lewis Avenue. Officer Alfonso Cancino radioed that he was now pursuing defendant.

Shortly afterward, Officer Aaron Murauskas radioed from the intersection of Belvidere Road and

Green Bay Road that he was at the site of an accident with personal injuries. Garcia went there and

saw that defendant’s car was one of the vehicles involved in the crash. Garcia estimated that he

received Murauskas’s notification about five minutes after he saw defendant’s vehicle exit the

parking lot onto Lewis Avenue.

¶8 Cancino testified that, when he learned of the Target burglary, he drove at a high speed

north on Lewis Avenue. He saw defendant’s car driving south on Lewis Avenue. Cancino activated

his emergency lights and entered the southbound lane to stop defendant’s car. Defendant continued

south at a high speed and swerved around Cancino’s squad car by temporarily entering the

northbound lane. Defendant then continued south on Lewis Avenue. Cancino made a U-turn and

headed south on Lewis Avenue at approximately 105 miles per hour. However, he was unable to

catch up with defendant. Defendant ran a red light at the intersection of southbound Lewis Avenue

-3- 2024 IL App (2d) 240031

and Sunset Avenue. Cancino lost sight of defendant’s car and discontinued his pursuit. However,

Cancino still attempted to locate defendant’s car.

¶9 Waukegan police officer John Szostak testified that he was on patrol at about 2 a.m. on

December 23, 2010, driving north in a marked squad car near Grand Avenue and North McAree

Road. He heard a dispatch about the Target burglary and that Garcia was pursuing defendant south

on Lewis Avenue. Szostak activated his lights and continued north on McAree Road, but when he

arrived at McAree Road and West Ridgeland Avenue, the sergeant in command radioed all units

to cease the pursuit. Szostak made a U-turn and drove south on McAree Road. He saw defendant’s

car travel west on West Glen Flora Avenue and cross McAree Road, well over the 30-mile-per-

hour posted speed limit. Szostak turned onto McAree Road and followed defendant. Defendant

approached Frolic Avenue, stopped at the stop sign for several seconds, and headed south on Frolic

Avenue. Szostak turned south on Frolic Avenue and followed defendant’s car, which accelerated

sharply and turned west on Grandville Avenue toward Green Bay Road. Szostak lost sight of

defendant but proceeded to Green Bay Road and turned south. He heard Murauskas report the

accident at Green Bay Road and Belvidere Road, so he activated his siren and emergency lights

and drove there.

¶ 10 Szostak testified that, after the pursuit was called off, the police were still allowed to search

for defendant’s car.

¶ 11 Murauskas testified that he was driving his personal car home west on Belvidere Road at

about 2 a.m. on December 23, 2010. As he approached Green Bay Road, he received a dispatch

about the Target burglary. Murauskas saw a black vehicle traveling south on Green Bay Road at a

high speed toward the intersection with Belvidere Road. Another vehicle was approaching the

-4- 2024 IL App (2d) 240031

intersection from the east. The black vehicle did not slow down for the red light and crashed into

the driver’s side of the other vehicle.

¶ 12 Waukegan police officer Barry Grabert, whom the trial court qualified as an expert in

accident reconstruction, testified that he investigated the accident scene shortly after the crash. The

black box from the victim’s car showed that, one second before the accident, her car was traveling

at 40 miles per hour. Based on various factors, Grabert determined that defendant was traveling at

approximately 56 miles per hour at the time of the crash.

¶ 13 Lincolnshire investigator Adam Hyde, whom the trial court also qualified as an accident-

reconstruction expert, testified that he investigated the case. At the time of the accident, the posted

speed limit on both Green Bay Road and Belvidere Road was 35 miles per hour. Hyde concluded

that, at the point of impact, the victim’s car was traveling at 39 miles per hour and defendant’s car

was traveling at approximately 61 miles per hour.

¶ 14 The State rested. Defendant moved for a directed finding. He argued that, inter alia, the

evidence was insufficient to prove felony murder beyond a reasonable doubt, because the victim’s

death was not “a foreseeable consequence of the *** burglary.” Specifically, defendant contended

that the evidence did not prove that the fatal crash occurred while he was still in flight from the

police after committing the burglary. Defendant asserted that, at the time of the crash, “the pursuit

had been called off; that *** the authorities lost sight of [defendant]; [and] that there was no

effort[ ] on their part to stop him or even identify themselves to him.” The trial court denied

defendant’s motion.

¶ 15 Defendant testified as follows. He admitted that he had committed burglary and theft at the

Target. When Garcia confronted him, he drove off. Garcia initially pursued him. However, once

he reached Lewis Avenue, he no longer saw Garcia’s car. As he drove south on Lewis Avenue

-5- 2024 IL App (2d) 240031

“fairly fast,” he saw a squad car, with its emergency lights activated, approaching him from the

south in the same lane. Defendant swerved around the squad car and kept heading south. He lost

sight of the squad car and saw no more emergency lights and heard no sirens. Turning right onto

Glen Flora Avenue, he drove west and slowed down until he reached Frolic Avenue, where he

stopped at the stop sign, turned onto Grandville Avenue, and drove to the intersection with Green

Bay Road. There, he momentarily exited his car and walked around. He did so “[t]o see if there

was [sic] any police.” Defendant saw no police cars or other traffic.

¶ 16 Defendant testified that he then drove south on Green Bay Road, crossing the intersection

with Grand Avenue at about 45 miles per hour. He saw no police cars. He passed the intersection

with Washington Street and drove toward Belvidere Road, seeing no emergency lights, hearing no

sirens, and keeping his speed steady. He was hoping to reach his “rendezvous point” in North

Chicago. As he approached Belvidere Road, he looked for his cell phone underneath the passenger

seat. When he looked up, he saw that the traffic light was red, but he decided to proceed, “gunn[ing]

it” so that he would not end up in the middle of the intersection. He got into a collision and was

taken to a hospital.

¶ 17 Defendant rested. The State did not present any rebuttal evidence.

¶ 18 In finding defendant guilty of felony murder, the trial court noted as follows. Defendant

was pursued at high speeds for several minutes. Garcia testified that, even after ending the high-

speed pursuit, he continued to follow defendant. Other officers saw defendant speeding through

the red light at the intersection of Green Bay Road and Belvidere Road without braking or slowing

down. The two expert witnesses estimated his speed on impact as 56 to 61 miles per hour, well

above the speed limit.

-6- 2024 IL App (2d) 240031

¶ 19 The trial court continued as follows. A person commits felony murder if he kills a person

without lawful justification and, in performing the acts that cause the person’s death, “is attempting

or committing a forcible felony other than second degree murder.” 720 ILCS 5/9-1(a)(3) (West

2010). A defendant may also be held responsible for a death that occurs during an escape from a

forcible felony. 2 People v. Klebanowski, 221 Ill. 2d 538, 546 (2006). Here, having committed

burglary, a forcible felony (see 720 ILCS 5/2-8 (West 2010)), defendant was escaping from the

police when he killed the victim. The killing occurred fewer than 10 minutes after the burglary and

not far from the scene. The stolen goods were in the car defendant drove. Defendant consistently

drove well over the posted speed limits. He admitted that, at one point, he stopped briefly to scout

for police in the area. Further, he intended to drive until he reached a prearranged “rendezvous

point,” where he could dispose of the stolen goods.

¶ 20 Defendant filed a pro se posttrial motion raising numerous issues, including ineffective

assistance of counsel. He alleged that trial counsel coerced him into testifying falsely about the

route he took from the Target to the crash site. Defendant also claimed that the police had no good

reason to pursue him, because they had already identified him and could apprehend him later. He

claimed that the “[p]olice chase enhanced [his] fear to flee, which resulted in the accident.”

¶ 21 At the hearing on the motion, defendant admitted committing perjury about the route he

took from the Target. He reiterated that the police did not need to chase him, because they could

have apprehended him later. The trial court asked defendant if he was suggesting that Garcia knew

defendant’s identity when he began the chase. Defendant then clarified that he was talking not

2 On appeal, defendant quotes from the current statute, which expressly imposes liability

for a death caused during “flight” from a forcible felony. See 720 ILCS 5/9-1(a)(3) (West 2022).

-7- 2024 IL App (2d) 240031

about Garcia’s pursuit of him but about “the later chase which led to the accident.” The following

colloquy ensued:

“THE COURT: Okay. So you are saying that you were being chased before—

immediately before the accident and that could have been avoided?

THE DEFENDANT: Chased the whole time.

THE COURT: Chased the whole time. Okay. And that you were actively trying to

get away at the time that the accident occurred?

THE DEFENDANT: Yes.

THE COURT: ***

Police chase enhanced your fear to flee, which resulted in the accident. Your

fear to flee resulted in the accident? Is that what you wrote [in the posttrial motion]?

THE DEFENDANT: Yes, sir.”

¶ 22 The trial court denied the pro se motion and a separate posttrial motion filed by trial

counsel. The court sentenced defendant to concurrent prison terms of 26 years for felony murder

and 7 years for DUI. On appeal, appellate counsel contended in part that making the sentences

concurrent violated section 5-8-4(d)(1) of the Unified Code of Corrections (Unified Code) (730

ILCS 5/5-8-4(d)(1) (West 2010)), which required consecutive sentences when one of the offenses

was first degree murder. Mischke I, 2014 IL App (2d) 130318, ¶¶ 6, 8. We agreed, vacated the

imposition of concurrent sentences, and remanded for resentencing. Id. ¶¶ 8, 25. On remand, the

trial court imposed the same sentences but made them consecutive. Mischke II, 2018 IL App (2d)

160472, ¶ 7. Defendant appealed, and we affirmed. Id. ¶ 1.

¶ 23 Defendant filed a pro se petition under the Act. Retained counsel later filed a supplemental

petition incorporating the pro se petition. As pertinent here, defendant raised three claims: (1) the

-8- 2024 IL App (2d) 240031

evidence did not prove him guilty of felony murder beyond a reasonable doubt, because it failed

to establish that he was fleeing the police when he killed the victim; (2) trial counsel was

ineffective for failing to raise the reasonable-doubt issue, and appellate counsel was ineffective for

not raising trial counsel’s ineffectiveness in that regard; and (3) appellate counsel was ineffective

for raising the concurrent-sentences issue, which ultimately led to resentencing and the imposition

of a longer aggregate sentence.

¶ 24 In an affidavit attached to his petition, defendant gave the following account of his

telephone conversation with appellate counsel regarding the issues to raise in the initial direct

appeal:

“4. During our telephone conversation, which I believe occurred in the spring of

2014, [appellate counsel] stressed to me that the only issues that could be raised on appeal

were issues or problems concerning my sentence. Any errors concerning whether I should

have been convicted could not be raised.

5. I specifically remember [appellate counsel] telling me that there was an issue

with regard to my receiving concurrent as opposed to consecutive sentences. He informed

me that the trial court had erred in giving me concurrent sentences and wanted to discuss

with me whether we should raise the issue on appeal. At that time[,] [appellate counsel]

advised me that I should consider abandoning the appeal.

6. I asked [appellate counsel] whether the issue of concurrent as opposed to

consecutive sentences could be raised by the prosecution at some point in time in the future.

[Appellate counsel] advised me that at the time of my release it was possible that the

prosecution could review my sentence and raise the fact that the trial court had erred in

-9- 2024 IL App (2d) 240031

granting me concurrent sentences. Based on that concern, I authorize [sic] [appellate

counsel] to raise the issue of the consecutive versus concurrent sentences on appeal.

7. Obviously, if I had been informed or believed that I would only have had to spend

26 years instead of 33 years on my sentence, I never would have authorized [appellate

counsel] to prosecute an appeal on my behalf which resulted in me getting another seven

years on my sentence.” (Emphasis added.)

¶ 25 The State filed a motion to dismiss the petition. Docket entries indicate that the motion was

heard and granted on December 12, 2023. However, the record contains no report of proceedings

for December 12, 2023, or order dismissing the petition. Defendant timely appealed.

¶ 26 II. ANALYSIS

¶ 27 The State has moved to strike defendant’s brief and dismiss the appeal. We took the motion

with the case. The State contends that the record is insufficient for proper review because it

contains no report of proceedings (i.e., a transcript or an appropriate substitute (see Ill. S. Ct. R.

323(c), (d) (eff. July 1, 2017))) of the hearing on the State’s motion to dismiss or of the trial court’s

oral ruling on the motion (the trial court’s docket entries offered no rationale for the dismissal). As

a result, the State concludes, we “ha[ve] no basis to examine the trial court’s factual findings or

the reasoning for its legal conclusions.” For the following reasons, we deny the State’s motion.

¶ 28 In ruling on a motion to dismiss a postconviction petition at the second stage of proceedings

under the Act, the trial court takes as true all well-pleaded facts that are not positively rebutted by

the trial record and decides whether the petition has made a substantial showing of a constitutional

violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Because this issue is purely one of law,

our review is de novo. Id. Moreover, because we review a trial court’s judgment, not its reasoning,

- 10 - 2024 IL App (2d) 240031

we may affirm on any basis called for by the record, regardless of whether the court relied on it.

People v. Everette, 141 Ill. 2d 147, 158 (1990).

¶ 29 Given these principles, the incompleteness of the record here in no way hinders our review.

Contrary to what the State implies, we need not examine either the trial court’s “factual findings”—

it made none—or its reasoning. Thus, we turn to the merits of defendant’s appeal.

¶ 30 Defendant’s first contention of error combines two related arguments. First, he argues that

the evidence was insufficient to prove him guilty of felony murder beyond a reasonable doubt,

because the State did not establish that he caused the accident while still fleeing from the police.

Second, he argues that trial counsel was ineffective for failing to move for a directed finding on

this ground. Neither argument has merit.

¶ 31 We reject the first argument because a claim of insufficient evidence does not allege a

constitutional deprivation and, thus, falls outside the Act. See People v. Flores, 2022 IL App (2d)

210757, ¶ 26.

¶ 32 Moreover, even were the claim cognizable under the Act, defendant forfeited any relief by

admitting at the posttrial hearing that he was indeed fleeing the police when he crashed. In a

colloquy with the court, defendant volunteered that, even after Garcia ceased his high-speed

pursuit, there was a “later chase” that “caused the accident.” He then stated that he had been

“[c]hased the whole time,” including up to the moment of the collision. Next, the trial court asked

defendant whether he was “actively trying to get away at the time that the [crash] occurred,” to

which he answered, “Yes.” Defendant had already testified that he committed the burglary and

that he caused the accident that killed the victim. His sole defense to the felony-murder charge had

been that, at the time of the collision, he was no longer fleeing the police. Thus, his clear statements

- 11 - 2024 IL App (2d) 240031

to the court that he was fleeing the police up to the time of the collision constituted an admission

of guilt to felony murder. See 720 ILCS 5/9-1(a)(3) (West 2010).

¶ 33 “A judicial confession, voluntarily made, is binding upon the accused, *** whether the

confession takes the form of a plea of guilty or is found in other statements made in court in the

course of legal proceedings.” People v. Green, 17 Ill. 2d 35, 42 (1959). After making such a

confession, the defendant may not question the legal sufficiency of the evidence against him. Id.

In Green, the court held that the defendant made a binding judicial confession when, after the trial

court found him guilty and sentenced him, the defendant stated in open court, “ ‘I committed the

crime.’ ” Id. at 39. As in Green, defendant’s judicial confession here barred a later claim of

insufficient evidence.

¶ 34 We turn to defendant’s second argument—that he made a substantial showing that trial

counsel was ineffective for failing to move for a directed finding on the ground of insufficient

evidence of flight. To establish ineffective assistance of counsel, a defendant must show that

(1) counsel’s performance was objectively unreasonable and (2) there is a reasonable probability

that, absent counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); People v. Petrenko, 237 Ill. 2d 490, 496-

97 (2010).

¶ 35 The most noteworthy flaw of defendant’s argument is that, as to the performance prong of

Strickland, its factual premise is just wrong. As we have set out, trial counsel did move for a

directed finding on the precise basis defendant now raises. By defendant’s own standards, counsel

performed reasonably.

¶ 36 Moreover, denying the motion for a directed finding was amply justified.

- 12 - 2024 IL App (2d) 240031

“The purpose of a motion for a directed finding in a criminal trial is to test the constitutional

sufficiency of the evidence by determining whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. [Citation.]” People v. Williams, 2017 IL

App (1st) 152021, ¶ 26.

For purposes of a motion for a directed finding, the defendant admits the truth of the facts stated

in the prosecution’s evidence, and the trial judge does not pass upon the weight of the evidence or

witness credibility in testing the sufficiency of the evidence to withstand the motion. Id.

¶ 37 Defendant’s argument is based on the theory that, once the police called off the high-speed

pursuit, he could no longer be fleeing from them. This theory overlooks two points. The first is

that there was abundant evidence that the officers continued trying to locate defendant even after

the pursuit was called off. Garcia, Szostak, and Murauskas testified that they followed defendant’s

car well after the high-speed pursuit was terminated.

¶ 38 The second point is that there was also ample evidence that, whether or not the officers

were still looking for defendant, he was still trying to elude them. Defendant testified that, when

he reached Green Bay Road, he exited his car, walked around, and looked “[t]o see if there

was [sic] any police.” Thus, by his own admission, very shortly before the crash, defendant was

trying to avoid apprehension. Further, the undisputed fact that he ran a red light immediately before

the crash was compelling evidence that he was still trying to flee at the very moment of impact.

¶ 39 We hold that the trial court properly held that defendant failed to make a substantial

showing that trial counsel was ineffective for neglecting to raise the reasonable-doubt issue.

¶ 40 We turn to defendant’s remaining claim of error. He contends that appellate counsel was

ineffective for arguing in his initial direct appeal that the trial court erred in imposing concurrent

- 13 - 2024 IL App (2d) 240031

sentences. Defendant does not contend that the argument lacked merit; he concedes that section 5-

8-4(d)(1) of the Unified Code required consecutive sentences. See 730 ILCS 5/5-8-4(d)(1) (West

2010). Instead, defendant argues that appellate counsel was ineffective for raising the issue at all.

He reasons that, had counsel remained silent, we would not have disturbed the trial court’s

erroneous decision, thus sparing him what later turned out to be a longer aggregate sentence.

¶ 41 The State responds that appellate counsel cannot be found ineffective for declining to

perpetrate deception by silence on this court. The State notes that, under Rule 3.3(a)(2) of the

Illinois Rules of Professional Conduct of 2010, “[a] lawyer shall not *** fail to disclose to the

tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse

to the position of the client and not disclosed by opposing counsel.” Ill. R. Prof’l Conduct (2010)

R. 3.3(a)(2) (eff. Jan. 1, 2010). The State reasons that it was not unreasonable or unprofessional

performance for appellate counsel to obey the clear dictate of a binding rule of professional

conduct.

¶ 42 We affirm the trial court’s decision, but not on the basis urged by the State. See Everette,

141 Ill. 2d at 158 (the reviewing court may affirm on any basis called for by the record, regardless

of whether the trial court relied on it). The record shows that, after appropriate consultation with

appellate counsel, defendant made an informed decision to argue in his initial direct appeal that

the trial court erred in imposing concurrent sentences.

¶ 43 “There is a strong presumption that counsel’s challenged conduct was within the range of

reasonable professional assistance, and the burden is on [the] defendant to overcome this

presumption.” People v. Hernandez-Chirinos, 2024 IL App (2d) 230125, ¶ 84. “What a reasonable

attorney would do is guided by, among other things, the Rules of Professional Conduct.” People

v. Leuze, 282 Ill. App. 3d 126, 128 (1996). In his affidavit attached to the supplemental

- 14 - 2024 IL App (2d) 240031

postconviction petition, defendant described his conversation with appellate counsel about

whether to raise the concurrent-sentences issue and defendant averred that appellate counsel failed

to advise him properly before he decided to raise that issue. The standard for judging the adequacy

of appellate counsel’s consultation with defendant is Rule 1.4 of the Illinois Rules of Professional

Conduct of 2010, which addresses the attorney’s duty to communicate with the client. Rule 1.4

states:

“(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect

to which the client’s informed consent *** is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s

objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s

conduct when the lawyer knows that the client expects assistance not permitted by

the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the

client to make informed decisions regarding the representation.” Ill. R. Prof’l Conduct

(2010) R. 1.4 (eff. Jan. 1, 2010).

¶ 44 Under Strickland’s performance prong, which incorporates Rule 1.4, the question is

whether appellate counsel provided all information “reasonably necessary to permit [defendant] to

make [an] informed decision” about whether to argue on appeal that the trial court erred in

imposing concurrent sentences. In our view, appellate counsel did just that. We quoted above

- 15 - 2024 IL App (2d) 240031

(supra ¶ 24) the pertinent portion of defendant’s affidavit. However, we consider not only

defendant’s petition and affidavit but also the entire record of defendant’s initial direct appeal, No.

2-13-0318. Defendant faults appellate counsel for what counsel argued in defendant’s brief in that

appeal, but our Strickland analysis is not limited to the brief. Rather, we consider any aspect of the

record that indicates why counsel made that argument. It is well established that, in addressing a

Strickland claim, we evaluate counsel’s “entire performance” (People v. Bell, 373 Ill. App. 3d 811,

822 (2007)), based on the “entire record” in the case (People v. Flores, 128 Ill. 2d 66, 107 (1989)).

The record of the initial direct appeal includes appellate counsel’s oral argument, which reveals—

consistent with defendant’s affidavit—that counsel duly consulted with defendant before

challenging the concurrent sentences.

¶ 45 During that oral argument, appellate counsel acknowledged that, if we vacated defendant’s

sentences and remanded for resentencing, the trial court could impose an aggregate sentence longer

than 26 years. Particularly, he recognized, the trial court could reimpose the existing sentences but

make them consecutive, for an aggregate sentence of 33 years. But appellate counsel also

recognized that, “theoretically,” the court “could give [defendant] less.” We then asked appellate

counsel whether defendant was “aware of these risks.” We specifically mentioned the risk that his

aggregate sentence could be increased on remand due to misconduct since sentencing. Appellate

counsel responded, “I want to answer very carefully, because I have confidentiality restrictions,

and I don’t want to *** repeat my conversations with my client, other than to note that our office

policy is to communicate[.]” Appellate counsel added, “And I comply with our office policies in

every case[.]” We presume, and have no reason to believe otherwise, that appellate counsel’s

“communicat[ion]” with defendant conveyed both the risk and the potential benefit we had queried

counsel about.

- 16 - 2024 IL App (2d) 240031

¶ 46 But, importantly, we need not rely on appellate counsel’s statements alone, for defendant’s

own affidavit provides details on his consultation with appellate counsel. According to defendant,

appellate counsel explained that the trial court improperly gave defendant “concurrent as opposed

to consecutive sentences” and advised defendant to abandon his appeal rather than argue that the

concurrent sentences were erroneous. Defendant admitted that, after appellate counsel advised him

that the State could raise the issue later, he authorized appellate counsel to raise the issue

immediately. Defendant followed this admission with an assertion that he would not have so

authorized appellate counsel had he “been informed or believed that [he] would only have had to

spend 26 years instead of 33 years on [his] sentence.” Defendant’s phrasing turned his intended

point nearly on its head. He meant to say (as defense counsel clarified at oral argument in this

appeal) that, if he had known that he might have to spend 33 years in prison rather than 26 years,

he would not have raised the issue on appeal. However, any suggestion that defendant did not

know the risk involved in raising the issue is rebutted by what he said previously in the affidavit.

The popular meanings of “concurrent” and “consecutive” conveyed what was at stake.

“[C]onsecutive” means “following one after the other in order.” Meriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/consecutive (last visited Nov. 21, 2024)

[https://perma.cc/28UK-7VEX]; see People v. Carney, 196 Ill. 2d 518, 525-26 (2001).

“[C]oncurrent” means “operating or occurring at the same time.” Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/concurrent (last visited Nov. 21, 2024)

[https://perma.cc/A2GX-DFYE]. Thus, defendant would have realized the risk that the trial court

would simply take the sentences it had ordered be served at the same time and order that they be

served one after the other, resulting in a longer aggregate sentence. Indeed, if defendant had not

realized that risk, he would not have been concerned enough to ask appellate counsel if the State

- 17 - 2024 IL App (2d) 240031

could, on its own initiative, challenge the consecutive sentences at a later point. When appellate

counsel confirmed that the State could (see People v. Castleberry, 2015 IL 116916, ¶¶ 26-27),

defendant opted not to leave well enough alone and accept appellate counsel’s recommendation to

forgo the challenge. Rather, he acted on the possibility of receiving a positive benefit from raising

the challenge—the possibility that, even if the trial court imposed consecutive sentences at

resentencing, the trial court might impose individual terms that would result in a shorter aggregate

sentence.

¶ 47 From defendant’s affidavit and appellate counsel’s statements at oral argument, it is clear

that appellate counsel informed defendant that (1) challenging the concurrent sentences might

result in a shorter aggregate sentence, the same aggregate sentence, or a longer aggregate sentence

and (2) electing not to raise the sentencing issue would not eliminate the threat of a longer

aggregate sentence, because the State could raise the error on its own. We conclude that appellate

counsel’s representation was reasonable and allowed defendant to make a fully informed and

voluntary decision, which he did by electing to raise the concurrent-sentences issue on appeal. 3

3 At oral argument in this appeal, defendant’s attorney represented that he read the entire

record. We have as well, and we find that it rebuts at several points defendant’s claim that, when

he brought his initial direct appeal, he was unaware that challenging his concurrent sentences could

result in a longer aggregate sentence. For instance, at the resentencing hearing, defense counsel

said, “I understand the law says when a sentence is remanded that was concurrent [and] it needs

to be consecutive[,] the same numbers can be imposed without any constitutional concerns even

though it may result in the defendant actually serving some additional time once [the] sentence[s]

[are] consecutive.” This was the moment for defendant himself to speak up if he truly had not

- 18 - 2024 IL App (2d) 240031

¶ 48 Defendant has also failed to establish under Strickland a reasonable probability that the

outcome would have been different had defendant opted not to raise the concurrent-sentences issue

on appeal. It is not reasonably likely that 26 years or more would have elapsed without the State

noticing that the sentences were mandatorily consecutive and filing a mandamus action to enforce

the statutory requirement. See id. Therefore, defendant’s ineffective-assistance argument fails.

¶ 49 The dissent believes that we are “gap-filling” by tapping “unauthorized” sources to reach

our conclusion. Infra ¶¶ 62-63. We disagree, as we are examining only the sources that the Act

and supreme court precedent permit us to consider. The dissent seems to object primarily to our

consideration of the oral argument in the initial direct appeal, but the dissent cites authority for the

broader proposition that “[a] court will not take judicial notice of the contents of its records except

in the proceeding pending before it” (People v. Hunt, 357 Ill. 39, 40 (1934); see People ex rel.

understood that his aggregate sentence could be increased on resentencing. Revealingly, he said

nothing.

Later, defendant attached to his pro se postconviction petition (ultimately incorporated into

postconviction counsel’s supplemental petition) certain correspondence between himself and

appellate counsel (and counsel’s direct supervisor) about issues to raise in defendant’s second

direct appeal (his appeal following resentencing). Defendant’s handwritten notes on a piece of

correspondence from appellate counsel suggest that defendant was upset because appellate counsel

did not raise all issues defendant wanted in his initial direct appeal. Notably, although that appeal

resulted ultimately in a longer aggregate sentence, defendant did not suggest that he was upset that

appellate counsel brought the concurrent-sentences challenge, as he understandably would have

been if appellate counsel had not duly consulted with him.

- 19 - 2024 IL App (2d) 240031

Zilm v. Carr, 265 Ill. 220, 229 (1914)). This rule appears to have been abrogated, or at least

significantly restricted. See People v. Davis, 65 Ill. 2d 157, 164 (1976) (noting that cases such as

Carr “would appear to preclude a judge from taking judicial notice of the orders or decrees entered

in other cases in the court in which he presides” but holding that “[t]o the extent that [Carr and

such cases] may be thought to create an inflexible rule requiring formal proof of earlier court

records only by authenticated or certified copies of those records and proof identity, they are

incompatible with considerations of judicial economy and efficiency essential to the disposition of

present-day caseloads”); Filrep, S. A. v. Barry, 88 Ill. App. 3d 935, 939 (1980) (noting that Davis

“expressed a more flexible approach to the question of judicial notice” than prior cases).

¶ 50 In any event, the Carr/Hunt rule obviously is not applied in postconviction proceedings, in

which defendants are permitted to allege errors occurring in prior proceedings in the case and

courts address those claims without any hint of a procedural impediment to reviewing the prior

proceedings. Indeed, the Act expressly authorizes the court, at the first stage of postconviction

proceedings, to “examine the court file of the proceeding in which the petitioner was convicted,

any action taken by an appellate court in such proceeding[,] and any transcripts of such

proceeding.” 725 ILCS 5/122-2.1(c) (West 2018). Review at the second stage is not any narrower.

The only caveat is that “[t]he Act itself contemplates that the trial court will look only to the record

of the subject petitioner’s case,” and, thus, the court may not “consider the record of proceedings

not involving the petitioner whose case is before the court.” People v. Sanders, 2016 IL 118123,

¶¶ 43-44. Contrary to the dissent’s characterization, defendant’s initial direct appeal is not merely

“a related appeal” (infra ¶ 63) but, rather, is a prior proceeding in this case, which we can and must

consider in evaluating defendant’s ineffectiveness claim. Moreover, supreme court precedent

clearly permits us to consider the oral argument in that appeal. See People v. Jones, 109 Ill. 2d

- 20 - 2024 IL App (2d) 240031

19, 24 (1985) (on appeal from the second-stage dismissal of the defendant’s postconviction

petition, the supreme court considered appellate counsel’s explanation at oral argument on direct

appeal as to why he did not argue the ineffectiveness of trial counsel). Our considering the initial

direct appeal—including the oral argument—is a routine exercise of a court’s authority under the

Act to consider prior proceedings while evaluating a postconviction claim that alleges error in

those proceedings. The dissent suggests some kind of distinction between the trial court and the

reviewing court as to what they may consider in evaluating a postconviction claim. But our very

function as a reviewing court permits, and indeed requires, us to “step into the shoes of the circuit

court” (the dissent’s phrase (infra ¶¶ 63-64)) inasmuch as we consider, like the trial court, the prior

proceedings that the postconviction claim implicates—here, the initial direct appeal and appellate

counsel’s performance. Our review would not be meaningful otherwise.

¶ 51 The dissent believes that appellate counsel’s statements during oral argument “do not rebut

defendant’s assertions that he was not properly informed about, and understood, the difference

between concurrent and consecutive sentences and the virtual absolute increase of his sentence to

33 years’ imprisonment.” (Emphasis in original). Infra ¶ 65. The dissent focuses on defendant’s

conclusional (and garbled) assertion in the affidavit that he would not have challenged the

consecutive sentences had he known that he might receive a longer aggregate sentence. As

explained, the remark is rebutted by details in the remainder of the affidavit, in which defendant

acknowledges that he was informed of the sentencing error and decided to raise it on appeal against

the advice of appellate counsel and despite the risk of a longer aggregate sentence.

¶ 52 The dissent is also mistaken that defendant did not appreciate the likelihood that he would

receive a longer aggregate sentence on remand. Defendant was told that his concurrent sentences

were essentially a windfall; he could hardly have failed to realize the good chance that the trial

- 21 - 2024 IL App (2d) 240031

court would adopt the simplest remedy on remand: reimpose the original individual sentences and

make them consecutive. After all, as defendant admits, appellate counsel advised him to abandon

the appeal.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 55 Affirmed.

¶ 56 JUSTICE JORGENSEN, dissenting:

¶ 57 I respectfully dissent for two reasons. First, I cannot agree with the majority’s gap-filling

methods used to conclude that appellate counsel performed reasonably. Second, I depart from the

majority’s finding that the well-pleaded facts did not demonstrate a substantial showing of

prejudice. Accordingly, I would remand this cause for a third-stage hearing where both appellate

counsel and defendant could testify to the content and circumstances of any communication.

¶ 58 I. Unreasonable Performance

¶ 59 In considering whether there was a substantial showing that appellate counsel’s

performance fell below an objective standard of reasonableness, the majority presumes that

defendant made an “informed decision” and that appellate counsel had an “appropriate

consultation” with defendant, without evidence to rebut the well-pleaded facts contained in the

affidavit and without facts to support this, contrary, conclusion.

¶ 60 Defendant’s affidavit and the contents of this record do not support a finding that an

appropriate consultation occurred. Here, defendant’s affidavit is silent as to whether counsel

informed defendant, and he understood, the risk of and virtually guaranteed exposure to an

increased sentence if appellate counsel raised any issue regarding defendant’s sentence on appeal.

To the contrary, defendant’s affidavit states that counsel told him that (1) there was an issue

- 22 - 2024 IL App (2d) 240031

regarding his concurrent sentences, (2) he should consider abandoning the appeal, and (3) the

prosecution could move to have his sentence corrected if the error was discovered. Additionally,

defendant’s affidavit states, “had [defendant] been informed or believed that [he] would only have

had to spend 26 years instead of 33 years on [his] sentence, [he] never would have authorized

[appellate counsel] to prosecute an appeal on [his] behalf which resulted in [him] getting another

seven years on [his] sentence.” The implication here is that defendant did not understand the

difference between concurrent and consecutive sentences and that he was either not informed or

did not understand that he would certainly face an increase of seven years in his aggregate sentence

if he affirmatively addressed his sentence on appeal. Specifically, any argument during his

resentencing hearing that his sentence was excessive would necessarily start at a 33-year sentence,

not 26; thus, defendant would necessarily have to argue for a 7-plus year sentencing reduction to

see any benefit above his sentence prior to the initial direct appeal. Nothing in this record shows

that defendant was informed of that probability or that he understood it.

¶ 61 The majority acknowledges these facts and yet presumes otherwise. See supra ¶ 45. First,

the majority’s complaints regarding defendant’s poor grammar in his affidavit do nothing to rebut

his clear claims that he was not informed, and did not understand, that he would face an increase

of seven years in his aggregate sentence if he addressed his sentence on appeal. Second, the

majority’s argument that the “popular meaning” of “concurrent” and “consecutive” sentences

conveyed the stakes is not well taken. The majority presumes that defendant understood the

differences between concurrent and consecutive sentences. However, there is no evidence to

support this supposition. As defendant is not a lawyer, judge, or member of the criminal justice

system, I cannot presume, as the majority has, that he actually understood the “popular meaning”

of those words and the risks and consequences associated therewith. The foregoing is precisely the

- 23 - 2024 IL App (2d) 240031

type of information that should be gleaned from a third-stage hearing. Finally, the majority asserts

that “defendant acknowledges that he was informed of the sentencing error and decided to raise it

on appeal against the advice of appellate counsel and despite the risk of a longer aggregate

sentence.” Supra ¶ 51. However, the majority glosses over the distinct points of the affidavit to

support its result. Here, the affidavit stated that defendant was informed that a sentencing issue

existed; however, nothing in the record confirms that defendant was told what concurrent and

consecutive sentences meant (i.e., that the nature of the sentencing error was explained to him) or

how that would virtually ensure an increased aggregate sentence. Moreover, the majority’s

supposition that defendant was informed of, and understood, the risk of a longer aggregate sentence

is not supported by the record. In fact, the well-pleaded facts show that defendant was not informed

and did not believe that he would have a longer aggregate sentence if he chose to appeal. There is

nothing in this record that rebuts defendant’s claims, and the question of fact remains: what

information was conveyed during appellate counsel’s consultation with defendant to support a

conclusion that defendant understood the risks and benefits of an appeal? These questions should

be resolved at a third-stage hearing.

¶ 62 Next, I disagree with the majority’s use of gap-filling methods in finding that an

appropriate consultation occurred. To conclude that defendant’s well-pleaded facts have been

rebutted, the majority asserts that, after reviewing counsel’s “entire performance,” based on the

“entire record,” counsel consulted with defendant—specifically, about the near certainty that

appealing defendant’s concurrent sentences would result in an increased aggregate sentence after

a new hearing. I disagree for three reasons.

- 24 - 2024 IL App (2d) 240031

¶ 63 First, the majority’s review of the “entire record” is unauthorized, as its extrajudicial review

required investigation into the record from a related appeal 4 (defendant’s initial direct appeal), the

contents of which were not included in the record in this appeal, as oral argument recordings or

transcripts from a direct appeal are not listed as documents included in the record on appeal for

collateral review. See Ill. S. Ct. R. 321 (eff. Oct. 1, 2021) (content of record on appeal). Moreover,

the Act does not support the majority’s review of the evidence. As the majority acknowledges,

“ ‘[t]he Act itself contemplates that the trial court will look only to the record of the subject

petitioner’s case.’ ” (Emphasis added.) Supra ¶ 50 (quoting Sanders, 2016 IL 118123, ¶ 43).

Accordingly, neither the Act nor case law supports the majority’s conclusion that it may step into

the shoes of the circuit court and comb the record in a related appeal to support a finding of

reasonable, professional assistance. See supra ¶ 50. Instead, both Flores and Bell are examples of

the appellate court examining the contents of the present appellate record before it to find

reasonable assistance. And in Jones, 109 Ill. 2d at 24, appellate counsel’s explanation regarding a

claim of ineffective assistance of trial counsel was discussed at oral argument but, more

importantly, it was in the present record before the appellate court because the explanation was

raised in the circuit court during postconviction proceedings. These cases do not support the

majority’s expansive review beyond the record here.

4 The majority takes issue with our use of the term “related appeal”; however, collateral

proceedings are not a part of the original appeal, are civil in nature, are given a separate case

number, and have historically been considered “related” in this court. People v. Harris, 2016 IL

App (1st) 141778, ¶ 16; People v. Gandy, 227 Ill. App. 3d 112, 142 (1992).

- 25 - 2024 IL App (2d) 240031

¶ 64 Second, the majority’s quoted discussion from the oral argument in defendant’s initial

direct appeal should not be judicially noticed without notice to the parties. Pursuant to Illinois Rule

of Evidence 201, even when a court may take judicial notice, the parties are entitled to request an

opportunity to be heard on the “propriety of taking judicial notice and the tenor of the matter

noticed.” Ill. R. Evid. 201(e) (eff. Jan. 1, 2011). No opportunity was provided at the oral argument

on September 5, 2024, and no subsequent opportunity has been granted by this court. Moreover,

here, we should not take judicial notice of counsel’s argument in a related appeal. Even in a case

involving the same parties and the same subject matter, “[a] court will take judicial notice of its

own records and thus dispense with proof identifying such records, but it will not take judicial

notice of the contents of any of its records except the one in the proceeding before it.” Carr, 265

Ill. 220, 229 (1914); see Hunt, 357 Ill. 39, 40 (1934). Even to the extent that this holding has been

relaxed for judicial economy, case law and Illinois Rule of Evidence 201 do not allow an appellate

court to step into the shoes of the circuit court, comb a related record, and then rely on the facts

therein without following the procedure laid out in the in Rule 201 or the Act. At a bare minimum,

the parties should have been informed of the majority’s intent to take judicial notice, and

supplemental briefing should have been utilized to address the persuasiveness of this evidence. I

depart from the majority’s attempts to circumvent Rule 201 and the Act to create a documentary

third-stage review hearing on appeal.

¶ 65 Finally, even if we assume that the oral argument from a prior appeal was a part of the

record in this appeal, the majority relies on counsel’s vague and unsworn statements that do not

rebut defendant’s assertions that he was not properly informed about, and understood, the

difference between concurrent and consecutive sentences and the virtual absolute increase of his

sentence to 33 years’ imprisonment. Here, the majority notes that, in defendant’s initial direct

- 26 - 2024 IL App (2d) 240031

appeal, a justice asked appellate counsel if he discussed with defendant the risk of an increased

sentence by filing an appeal attacking his incorrect, concurrent sentences. Counsel did not answer

the question or divulge what he discussed with defendant. Indeed, we appreciate that he could not

at that time because of confidentiality restrictions. Instead, counsel merely stated it was office

policy to communicate with a defendant and he followed office policy. Counsel’s excerpt from the

oral argument does not tell this court what counsel told defendant or whether defendant understood

the risks of filing his appeal, and it certainly does not rebut defendant’s well-pleaded claim that he

was not informed of the risk that any argument to reduce his sentence would start from 33 years,

not 26. In other words, he was not informed of the likelihood that the circuit court would not reduce

his sentence more than seven years. Even counsel’s advice to defendant to abandon the appeal

rings hollow if counsel failed to properly explain the sentencing issue so that defendant understood

the risks associated with addressing the issue on direct appeal. These issues can and should be

resolved at a third-stage hearing, where counsel’s confidentiality restrictions would be lifted and

counsel could testify, under oath, about the details of his consultation. Ill. R. Prof’l Conduct (2010)

R. 1.6(b)(5) (eff. Jan. 1, 2016).

¶ 66 II. Prejudice

¶ 67 Next, I believe that defendant has made a substantial showing of prejudice. Here, the

majority notes that it is not reasonably likely that 26 years would pass without the State noticing

the circuit court’s sentencing error. The record suggests otherwise, as 21 months had already

passed (March 8, 2013, to December 29, 2014) between the date defendant was sentenced and the

date we issued our decision notifying the circuit court of its sentencing error. Appellate counsel

was the first and only person to notice the error and bring it to the court’s and the parties’ attention,

in the opening brief of defendant’s initial direct appeal. Even when the case was fresh in the minds

- 27 - 2024 IL App (2d) 240031

of the circuit court, the prosecutor, and defense counsel, the error was not caught at the sentencing

hearing, during the postsentencing review, or during the motion to reconsider the sentence.

Moreover, it seems outside the bounds of reason to further assume that nonlegal prison personnel

would identify a legal error that was overlooked by the circuit court and the parties. Accordingly,

I find that it was reasonably likely that defendant would have received the benefit of the circuit

court’s error but for appellate counsel’s intervention.

¶ 68 Finally, even considering the fact that we cannot “unring the bell” and reinstate defendant’s

concurrent sentences, there remains an adequate remedy at law. Here, the adequate remedy is a

third-stage hearing where, if defendant is successful, the circuit court could grant a new sentencing

hearing where the sentencing judge could consider the prior circuit court’s error and defendant’s

claim that appellate counsel’s ineffectiveness resulted in defendant’s current sentence. While there

certainly is no guarantee that defendant would receive a decreased sentence, defendant would have

the opportunity to argue for the reformation of his sentence. Accordingly, I believe this case should

proceed to a third-stage hearing.

- 28 - 2024 IL App (2d) 240031

People v. Mischke, 2024 IL App (2d) 240031

Decision Under Review: Appeal from the Circuit Court of Lake County, Nos. 11-CF-142, 10-CF-4384; the Hon. Mark L. Levitt, Judge, presiding.

Attorneys Darrell Dunham, of Carbondale, for appellant. for Appellant:

Attorneys Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick for Delfino, Edward R. Psenicka, and Adam J. Rodriguez, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 29 -