People v. Perez

2023 IL App (4th) 220280

• Court: Appellate Court of Illinois
• Decided: February 28, 2023
• Docket: 4-22-0280
• Status: Published

Opinion

2023 IL App (4th) 220280 FILED NO. 4-22-0280 February 28, 2023 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County ANTHONY M. PEREZ, ) No. 13CF270 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.

OPINION

¶1 Defendant, Anthony M. Perez, appeals an order dismissing his postconviction

petition at the second stage of proceedings. Defendant’s retained counsel filed an untimely

postconviction petition on defendant’s behalf without pleading defendant’s lack of culpable

negligence. Counsel’s one-day delay seems due to his miscalculating the deadline to file a petition

for certiorari in the Supreme Court of the United States after the Illinois Supreme Court denied

leave to appeal in defendant’s direct appeal. As a result, the trial court dismissed defendant’s

postconviction petition on the State’s motion without considering the merits of most of defendant’s

claims. On appeal, defendant’s primary contention is that he received unreasonable assistance of

postconviction counsel. The most significant issue for our consideration is whether we should

automatically remand the matter for further second-stage proceedings due to counsel’s mistake or

whether we should instead consider the merits of defendant’s postconviction claims. For the following reasons, we hold that it is appropriate to consider the merits of defendant’s

postconviction claims, and we affirm the trial court’s judgment.

¶2 I. BACKGROUND

¶3 Following a trial in the circuit court of Boone County, a jury found defendant guilty

of three counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)), two counts of attempted

first degree murder, aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)),

unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)),

and mob action (720 ILCS 5/25-1(a)(1) (West 2012)). The jury further found that defendant

personally discharged a firearm. The court sentenced defendant to an aggregate of 95 years in

prison. The Second District of the Illinois Appellate Court affirmed the judgment on direct appeal,

providing a lengthy summary of the trial evidence. People v. Perez, 2020 IL App (2d) 180073-U.

We will recount only the facts necessary to understand defendant’s postconviction claims.

¶4 In the early morning hours of November 30, 2013, two armed men approached a

parked car occupied by Giovanni Galicia, Jesus Casas, and Fermin Estrada. One of the armed men

opened fired at the car. Galicia was killed, but neither Casas nor Estrada were hit. Shortly

thereafter, a police officer engaged in a high-speed chase with a Lincoln Navigator that was

suspected to be driven by the perpetrators. When the Navigator eventually stopped, the occupants

fled from the vehicle. The police quickly apprehended three people—Ricardo Garcia, Ricardo

Figueroa, and Cheyanne Patton. The police later observed that all four doors of the Navigator were

open, suggesting that a fourth suspect escaped on foot. Inside the Navigator, the police found the

gun that was used in the shooting. The police found a second gun nearby in the street. The State’s

theory at trial was that defendant was the shooter who escaped from the Navigator on foot.

-2- ¶5 Authorities were unable to connect defendant to the shooting with either fingerprint

or DNA evidence. The murder weapon was determined to contain a mixture of DNA from at least

two individuals. Specifically, there was a major female profile along with an incomplete minor

profile. Patton, the only female who submitted a swab for comparison, was excluded as

contributing to that major profile. The State introduced evidence that defendant made statements

to fellow inmates at the county jail expressing his belief that the female DNA may have come from

defendant having previously hit an unidentified woman with the gun or having put the gun to that

woman’s head.

¶6 Neither Casas nor Estrada ever identified defendant as one of the perpetrators.

Casas did not get a good look at either of the armed men. Although Estrada noticed that the shooter

wore a hoodie and had his face covered, Estrada initially told the police, with either 85% or 100%

certainty, that the shooter was somebody other than defendant.

¶7 Patton, however, identified defendant as the shooter. Patton testified that she

attended a party the evening before the shooting at a residence in Belvidere she shared with Garcia

and Mallek Sanchez. Patton claimed that Garcia, Figueroa, and defendant were at the party. Patton

saw both Figueroa and defendant taking “pictures with a gun” at the party. Patton explained that

Garcia then drove her, Figueroa, and defendant in a Navigator to a different area of Belvidere to

“get at somebody.” Patton testified that Figueroa and defendant exited the Navigator, then Patton

heard gunshots. Figueroa and defendant returned to the Navigator. Defendant, who was holding a

gun, then made a comment about having just shot somebody in the face.

¶8 The State also presented evidence from two witnesses, Hugo Pena and Patrick

Brooks, who detailed their conversations with defendant in the Boone County jail after the

shooting. Pena and Brooks both testified that defendant made incriminating statements to them

-3- about his involvement in the shooting. Pena also stated that he saw one or more photographs on

Facebook where defendant was wearing a “du-rag” and “showing” a gun. Those photographs,

which Pena said had since been taken down from Facebook, were not admitted into evidence.

Apparently, the State never possessed those photographs. Some of the details that Brooks claimed

defendant told him did not conform to the known facts about the shooting.

¶9 The State presented Joseph Raschke, a special agent with the Federal Bureau of

Investigation, as an expert on the topic of historical cell-site analysis. Raschke tracked the

movements on the night of the shooting of a phone that the State linked to defendant. The

movements of that phone were consistent with the State’s theory that defendant fled the scene of

the shooting in the Navigator. There was extensive pretrial litigation and trial testimony addressing

the reliability of the State’s cell-site-analysis evidence. The defense wanted to call Joseph Kennedy

as a cellular technology expert to counter Raschke’s opinions. The trial court found Kennedy

unqualified and, thus, barred his testimony.

¶ 10 The jury found defendant guilty of all charges and found that he personally

discharged a firearm. The court sentenced defendant on five of the eight counts to an aggregate of

95 years in prison.

¶ 11 The Second District affirmed the judgment. As it pertains to the present appeal, the

court held that (1) the State proved defendant guilty beyond a reasonable doubt, (2) there was no

merit to defendant’s challenges to various portions of Raschke’s testimony, and (3) defendant

failed to present a cogent plain-error argument, so the court would not review defendant’s forfeited

challenge to Pena’s testimony describing the photographs he saw on Facebook. Perez, 2020 IL

App (2d) 180073-U, ¶¶ 92, 128-34, 142-44.

-4- ¶ 12 On May 27, 2020, our supreme court denied defendant’s petition for leave to

appeal. People v. Perez, No. 125824 (Ill. May 27, 2020). The due date for filing a petition for

certiorari with the Supreme Court of the United States was August 25, 2020. See Sup. Ct. R. 13(1)

(a petition for certiorari is due within 90 days after the state court of last resort denies discretionary

review). Defendant did not file a petition for certiorari. Thus, defendant’s deadline for filing a

postconviction petition was February 25, 2021. See 725 ILCS 5/122-1(c) (West 2020) (“If a

petition for certiorari is not filed, no proceedings under this Article shall be commenced more than

6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing

that the delay was not due to his or her culpable negligence.”). However, this deadline does not

apply to claims of actual innocence. 725 ILCS 5/122-1(c) (West 2020).

¶ 13 On February 26, 2021, one day after the deadline, defendant, represented by the

same law firm that represented him on direct appeal, filed a postconviction petition. Defendant did

not allege that his one-day delay in filing was not due to his culpable negligence. Defendant raised

six claims, some of which had multiple subparts. We will mention only the aspects of the claims

that are relevant to this appeal.

¶ 14 Defendant claimed that “the trial court improperly admitted speculative testimony

disguised as expert opinions[,] causing the jury to be misled as to the limitations of [historical

cell-site analysis], violating defendant’s right to due process and rendering defendant’s trial

fundamentally unfair.” Although defendant acknowledged that the appellate court rejected a

similar challenge to Raschke’s testimony in defendant’s direct appeal, defendant asserted that “it

is now known that Raschke’s testimony was mere speculation.” In support of this allegation,

defendant attached the affidavit of Manfred Schenk, a computer scientist. In his affidavit, Schenk

-5- described why he believed Raschke reached erroneous conclusions about the locations of

defendant’s cell phone on the night of the shooting.

¶ 15 Defendant also claimed that his trial counsel was ineffective for failing to preserve

challenges to Pena’s testimony about what he saw on Facebook. According to defendant, Pena’s

testimony was improper for multiple reasons, including that it violated the best evidence rule.

¶ 16 Defendant further claimed that he was innocent of the crimes for which he was

convicted. Defendant first noted that, after his trial, authorities determined that the female DNA

on the murder weapon came from a laboratory technician.

¶ 17 As part of his actual-innocence claim, defendant also presented his own affidavit,

along with the affidavits of Mallek Sanchez and Michelle Boyd. In his affidavit, defendant denied

(1) being involved in the shooting, (2) attending the party on the evening of the shooting,

(3) making the statements that Pena and Brooks attributed to him, or (4) posing for a picture

wearing a du-rag and holding a gun. Sanchez averred that (1) defendant was not at the party on the

night of the shooting, (2) he (Sanchez) was never questioned by the police on that issue, and (3) had

he been so questioned, he would have said that defendant was not there on the night of the shooting.

¶ 18 In her affidavit, Boyd attested that she received text messages from Pena after

defendant’s trial. Boyd attached screenshots of the text messages to her affidavit. In those text

messages, Pena told Boyd the following, in relevant portion:

“Hey your friend angie perez [(defendant’s mother)]…Give word to her that i got

some info that can get her son back to court for a new trial. They made me testify

on his case but this other guy that testified lied n i had proof n the states attorny

wanted to keep it secret[.] *** When i gave the info to my lawyer about the guy

that lied i told him i was going to get a hold of anthonys lawyer n let him kno what’s

-6- goin on n he looked worried..n went to talk to the state attorney.. they wanted to

hurry n sentance me n get me on my way after i said that.”

In his postconviction petition, defendant interpreted these text messages as meaning that Pena had

proof that Brooks lied at defendant’s trial.

¶ 19 The trial court advanced defendant’s postconviction petition to the second stage.

The court noted that the petition was “replete with allegations that are frivolous or patently without

merit or would not survive waiver and res judicata arguments.” Nevertheless, the court determined

that, although the claim was not specifically raised in the petition, defendant had “unwittingly”

raised the gist of a claim that the State committed a Brady violation by failing to inform the defense

about the information referenced in Pena’s text messages to Boyd. See Brady v. Maryland, 373

U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution”).

¶ 20 After the trial court advanced the matter to the second stage, postconviction counsel

initially told the court he would amend the petition. When the matter returned to court,

postconviction counsel said: “I conferred with my client. We’re going to stand on the first original

one.”

¶ 21 The trial court appointed the Office of the State’s Attorneys Appellate Prosecutor

as the special prosecutor to represent the State in connection with the postconviction proceedings.

The State moved to dismiss defendant’s petition. With no additional elaboration, the State asserted

that (1) the petition was untimely, (2) defendant failed to establish a substantial denial of his

constitutional rights, (3) the petition’s allegations were deficient for failing to attach affidavits,

-7- records, or other evidence, and (4) the petition contained allegations that were either waived or

barred by res judicata.

¶ 22 At the hearing on the State’s motion to dismiss the petition, neither the State nor

defendant’s postconviction counsel identified the correct due date for defendant’s postconviction

petition. Defendant’s postconviction counsel erroneously argued that the petition was timely

because it was filed within nine months of our supreme court denying defendant’s petition for

leave to appeal. With respect to the potential Brady claim that the court had identified in advancing

the petition to the second stage, defendant’s postconviction counsel told the court that defendant

was not making allegations against any particular assistant state’s attorney. Counsel added that

“[w]e” received unsolicited information from Pena. Counsel stated, “[w]e don’t know it all yet,”

though he hoped “to present them [sic] in an evidentiary hearing.”

¶ 23 On February 22, 2022, the trial court granted the State’s motion to dismiss the

postconviction petition. The court determined that the petition was untimely by one day, which

precluded all defendant’s claims except for his claim of actual innocence. The court determined

that defendant failed to make a substantial showing of actual innocence. See People v. Robinson,

2020 IL 123849, ¶ 47 (“To establish a claim of actual innocence, the supporting evidence must be

(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it

would probably change the result on retrial.”).

¶ 24 Specifically, the trial court determined that the DNA evidence, though newly

discovered, was not material, as “[t]he jury knew that the DNA on the weapon was not the

defendant’s.” The court reasoned that “[t]he only help to the defendant to knowing this information

earlier would have been to avoid making incriminatory statements to Mr. Pena trying to explain

the presence of female DNA on the weapon.” According to the court, “[b]ecause the DNA test

-8- does not even meet the materiality threshold, it cannot come anywhere near the requirement of

undermining the court’s confidence in the judgment of guilt.”

¶ 25 The trial court determined that Sanchez’s affidavit contained information that was

material and noncumulative. However, Sanchez’s affidavit was not newly discovered, as Sanchez

was “well known to the petitioner at the time of trial, and the testimony of Mr. Sanchez could have

been acquired and presented by the defendant at trial.” The court also concluded that “Sanchez’s

testimony that the petitioner was not at the party does not place the trial evidence in a different

light or undermine the court’s confidence in the judgment of guilt.”

¶ 26 Similarly, the trial court found that defendant’s affidavit was not newly discovered,

as defendant had declined to exercise his right to testify at trial.

¶ 27 The trial court explained that Boyd’s affidavit provided “possible sources of new

evidence” but was “not new evidence itself.” The court noted that Boyd had no personal

information about the case, nor did she specify the details of other witnesses’ potential testimony

referenced in Pena’s text messages. Without knowing the nature of the potential testimony

referenced in the text messages, the court determined that defendant had not shown that such

evidence was material, noncumulative, or conclusive.

¶ 28 This court allowed defendant to file a late notice of appeal and this appeal followed.

¶ 29 II. ANALYSIS

¶ 30 Defendant raises two overarching issues on appeal: (1) his postconviction counsel

provided unreasonable assistance and (2) he made a substantial showing of actual innocence.

¶ 31 In support of his claim of unreasonable assistance, defendant emphasizes that his

postconviction counsel filed an untimely petition without pleading defendant’s lack of culpable

negligence. Although defendant acknowledges authority contradicting his argument, he proposes

-9- that we should remand for further second-stage proceedings without considering whether he

demonstrated prejudice as a result of the dismissal. Alternatively, defendant contends that he was

prejudiced by his postconviction counsel’s failure to overcome untimeliness because the petition

made substantial showings that (1) Raschke’s trial testimony violated defendant’s right to due

process and (2) defendant’s trial counsel was ineffective for failing to preserve for appellate review

an argument that portions of Pena’s testimony violated the best evidence rule. Defendant further

submits that his postconviction counsel provided unreasonable assistance by (1) failing to

supplement the petition to develop a Brady claim and (2) failing to argue that trial counsel was

ineffective for not calling Sanchez as a witness. Defendant separately contends that Boyd’s

affidavit and the new DNA evidence made a substantial showing of actual innocence.

¶ 32 The State responds that defendant’s petition was untimely and did not make

substantial showings of either a constitutional violation or actual innocence.

¶ 33 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020))

“provides a tool for criminal defendants to 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.” People v. House, 2021 IL 125124, ¶ 15. There are three stages of postconviction

proceedings. At the first stage, the court reviews the petition independently to “determine whether

it is ‘frivolous or *** patently without merit.’ ” House, 2021 IL 125124, ¶ 16 (quoting 725 ILCS

5/122-2.1(a)(2) (West 2008)). If the court does not summarily dismiss the petition, the matter

proceeds to the second stage. House, 2021 IL 125124, ¶ 16. At the second stage, the State may file

a responsive pleading. House, 2021 IL 125124, ¶ 17. If the defendant does not make a substantial

showing of a constitutional violation at the second stage, the court dismisses the petition. House,

2021 IL 125124, ¶ 17. However, if the defendant makes such showing, the matter proceeds to a

- 10 - third-stage evidentiary hearing. House, 2021 IL 125124, ¶ 17. We review de novo an order

dismissing a petition at the second stage. People v. Sanders, 2016 IL 118123, ¶ 31.

¶ 34 A. Reasonable Assistance of Postconviction Counsel

¶ 35 We first address defendant’s claim that he received unreasonable assistance of

postconviction counsel. Defendant requests a remand for further second-stage proceedings. As a

preliminary issue, we must decide whether we should consider the merits of defendant’s

postconviction claims when evaluating the reasonableness of counsel’s assistance. In other words,

to show that his postconviction counsel’s assistance was unreasonable, must defendant show that

his counsel’s actions caused him to forgo a meritorious claim? Or, as defendant proposes,

irrespective of the merits of defendant’s postconviction claims, is a remand warranted because

counsel’s mistake regarding the filing deadline caused the trial court to dismiss most of defendant’s

claims as time-barred?

¶ 36 1. We Will Consider the Merits of Defendant’s

Postconviction Claims When Evaluating the Reasonableness

of Counsel’s Assistance

¶ 37 In most cases, prisoners file an initial pro se postconviction petition. If that petition

survives summary dismissal and advances to the second stage, the trial court then appoints counsel

for the petitioner. A postconviction petitioner is entitled to “reasonable assistance” of counsel at

the second stage of proceedings, which is “ ‘significantly lower than the [standard] mandated at

trial by our state and federal constitutions.’ ” People v. Smith, 2022 IL 126940, ¶ 35 (quoting

People v. Custer, 2019 IL 123339, ¶ 30). When the court appoints counsel for a petitioner, counsel

must substantially comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. July

1, 2017). People v. Profit, 2012 IL App (1st) 101307, ¶ 18. Rule 651(c) imposes three duties on

- 11 - counsel: (1) the duty to consult with the petitioner, (2) the duty to examine the record, and (3) the

duty to “make any amendments to the pro se petition necessary for an adequate presentation of the

petitioner’s contentions.” People v. Perkins, 229 Ill. 2d 34, 42 (2007). This third duty “requires

amendment of an untimely petition to allege any available facts showing the delay in filing was

not due to the petitioner’s culpable negligence in an effort to excuse the untimely filing.” Perkins,

229 Ill. 2d at 37.

¶ 38 Where postconviction counsel files a certificate attesting that he or she fulfilled the

three obligations of Rule 651(c), there is a rebuttable presumption that the petitioner received

reasonable postconviction assistance. People v. Dixon, 2018 IL App (3d) 150630, ¶ 14. If counsel

did not comply with Rule 651(c), the reviewing court will not consider the merits of the

defendant’s postconviction claims but instead must remand for further second-stage proceedings

“with the benefit of reasonable assistance of counsel.” People v. Turner, 187 Ill. 2d 406, 417

(1999); see also People v. Suarez, 224 Ill. 2d 37, 51 (2007) (“Our Rule 651(c) analysis has been

driven, not by whether a particular defendant’s claim is potentially meritorious, but by the

conviction that where postconviction counsel does not adequately complete the duties mandated

by the rule, the limited right to counsel conferred by the Act cannot be fully realized.”). Some

cases refer to this as an “automatic-remand rule.” People v. Zareski, 2017 IL App (1st) 150836,

¶ 55.

¶ 39 Rule 651(c) does not apply where a petitioner retains counsel to file the initial

postconviction petition. See People v. Cotto, 2016 IL 119006, ¶ 41 (“Rule 651(c) applies only to

a postconviction petition initially filed by a pro se defendant.”). Nevertheless, a petitioner who

retains counsel is entitled to reasonable assistance of counsel (Cotto, 2016 IL 119006, ¶¶ 41-42),

even at the first stage of postconviction proceedings (People v. Johnson, 2018 IL 122227, ¶ 23).

- 12 - ¶ 40 Here, Rule 651(c) does not apply, as defendant’s retained counsel filed the initial

postconviction petition. However, defendant seeks the benefit of an “automatic-remand rule” that

developed under caselaw interpreting Rule 651(c). In Zareski, the First District of the Illinois

Appellate Court rejected a similar argument, holding that the “automatic-remand rule” does not

apply where retained counsel files the initial postconviction petition. Zareski, 2017 IL App (1st)

150836, ¶ 55.

¶ 41 Zareski came before the appellate court in an identical procedural posture to the

case at bar. Specifically, the defendant retained counsel to file an initial postconviction petition,

the trial court dismissed that petition at the second stage of proceedings, and the defendant argued

on appeal that his counsel provided unreasonable assistance. Zareski, 2017 IL App (1st) 150836,

¶¶ 1, 46. The defendant in Zareski complained that his counsel failed to raise certain claims and

that counsel raised other claims that were procedurally barred. Zareski, 2017 IL App (1st) 150836,

¶ 46. According to the defendant, because his postconviction counsel failed to present claims

“properly” and “in their best light,” the appellate court should “automatically remand to the trial

court without considering whether these claims would have had any chance of success in the trial

court.” Zareski, 2017 IL App (1st) 150836, ¶ 46. The State, by contrast, contended that defendant’s

postconviction claims lacked merit. Zareski, 2017 IL App (1st) 150836, ¶ 46.

¶ 42 In addressing this dispute, the appellate court in Zareski noted that the federal

constitution gives defendants the right to “effective assistance of counsel at trial and on direct

appeal.” Zareski, 2017 IL App (1st) 150836, ¶ 48. In all but the rarest cases, a defendant must

demonstrate that he or she sustained prejudice before obtaining relief for counsel’s constitutionally

deficient performance. Zareski, 2017 IL App (1st) 150836, ¶¶ 48-49. Specifically, in accordance

with Strickland v. Washington, 466 U.S. 668 (1984), prejudice requires a showing that “there was

- 13 - a reasonable probability of a different outcome had counsel performed their duties.” Zareski, 2017

IL App (1st) 150836, ¶ 49. However, postconviction petitioners are not constitutionally entitled to

effective assistance of counsel. Zareski, 2017 IL App (1st) 150836, ¶ 50. Instead, the Illinois

legislature grants postconviction petitioners the right to reasonable assistance, which the Zareski

court labeled an “inadequately defined” lower standard than effective assistance. Zareski, 2017 IL

App (1st) 150836, ¶ 50.

¶ 43 According to the court in Zareski, because reasonable assistance is a lower standard

than effective assistance, “it should be even more difficult for a defendant to prove that he or she

received unreasonable assistance than to prove that he or she received ineffective assistance under

Strickland.” Zareski, 2017 IL App (1st) 150836, ¶ 50. Nevertheless, the court in Zareski

recognized that our supreme court held in Suarez that if postconviction counsel does not comply

with the duties outlined in Rule 651(c), a reviewing court must remand the matter without

considering the merits of the defendant’s postconviction claims. Zareski, 2017 IL App (1st)

150836, ¶ 52.

¶ 44 Relying on Suarez, the defendant in Zareski argued that, because his postconviction

counsel “failed to formulate his claims properly in the postconviction petition,” the defendant was

entitled to a remand “regardless of whether those claims would have had any chance of success in

postconviction.” Zareski, 2017 IL App (1st) 150836, ¶ 53. The Zareski court deemed this an “odd

outcome,” given that (1) “in the constitutional context, only truly egregious failures allow for a

new trial regardless of prejudice” and (2) “[t]he reasonable assistance standard *** is supposed to

be even lower than the Strickland standard.” Zareski, 2017 IL App (1st) 150836, ¶ 54. The Zareski

court thus questioned how it could “reconcile Suarez’s holding with the Supreme Court’s

- 14 - statements that defendants are entitled to less assistance in postconviction than on direct appeal.”

Zareski, 2017 IL App (1st) 150836, ¶ 54.

¶ 45 The Zareski court determined that “the answer lies in Rule 651.” Zareski, 2017 IL

App (1st) 150836, ¶ 55. Specifically, according to the Zareski court, “[t]he real key of the Suarez

holding was not that Suarez’s counsel had provided unreasonable assistance, but that Suarez’s

counsel had violated a supreme court rule.” Zareski, 2017 IL App (1st) 150836, ¶ 55. The Zareski

court determined that Suarez’s logic does not extend to situations where Rule 651 does not guide

counsel’s conduct—i.e., where retained counsel filed the initial postconviction petition. Zareski,

2017 IL App (1st) 150836, ¶ 55. In the Zareski court’s view, a defendant who retains counsel at

the first stage of postconviction proceedings is entitled to reasonable assistance but not “the

additional protections of Rule 651 and Suarez’s holding.” Zareski, 2017 IL App (1st) 150836, ¶ 55.

¶ 46 The Zareski court next considered how it should evaluate reasonable assistance

apart from Rule 651. Zareski, 2017 IL App (1st) 150836, ¶ 58. The court noted that our supreme

court has “never explicitly stated a standard” for evaluating reasonable assistance of counsel.

Zareski, 2017 IL App (1st) 150836, ¶ 58. The State proposed implementing a “Strickland-like

analysis,” thus presuming that postconviction counsel was competent and requiring the defendant

to show prejudice. Zareski, 2017 IL App (1st) 150836, ¶ 58. The defendant, on the other hand,

proposed “evaluat[ing] reasonable assistance in tandem with Rule 651’s requirements.” Zareski,

2017 IL App (1st) 150836, ¶ 58.

¶ 47 The Zareski court adopted the “Strickland-like analysis,” which “requires an

evaluation of prejudice.” Zareski, 2017 IL App (1st) 150836, ¶ 59. The court reasoned that the

benefits of such approach included (1) the avoidance of “pointless remands to trial courts for

repeated evaluation of claims that have no chance of success,” (2) the familiarity of the Strickland

- 15 - standard “to both the courts and attorneys,” and (3) the ability to use the approach to evaluate

claims of unreasonable assistance after a third-stage evidentiary hearing. Zareski, 2017 IL App

(1st) 150836, ¶ 59. The court further observed that numerous states “use the Strickland standard

to evaluate postconviction counsel.” Zareski, 2017 IL App (1st) 150836, ¶ 60. Thus, to evaluate

the defendant’s contention that his counsel provided unreasonable assistance by failing to present

certain claims properly, the Zareski court would consider whether the defendant sustained

prejudice. Zareski, 2017 IL App (1st) 150836, ¶ 61. According to the court, if the defendant’s

“potential claim had no merit,” the defendant “cannot receive postconviction relief on that claim,

regardless of whether [the defendant’s direct appeal and postconviction counsel] should have

presented it earlier, better, or at all.” (Emphasis added.) Zareski, 2017 IL App (1st) 150836, ¶ 61.

¶ 48 Here, defendant argues that his postconviction counsel should have filed the

postconviction petition earlier to avoid most of defendant’s claims being time-barred. Defendant

asserts that his postconviction counsel, at the least, should have pleaded defendant’s lack of

culpable negligence for the late filing. Defendant also argues that his counsel should have

presented some claims differently and presented additional claims. Defendant recognizes that,

pursuant to Zareski, he is not entitled to a remand unless he identifies a meritorious postconviction

claim. However, defendant asks us to reject Zareski and reconsider the holding of that case in light

of Johnson, 2018 IL 122227, in which our supreme court recognized that a defendant who retains

counsel at the first stage of postconviction proceedings is entitled to reasonable assistance.

Defendant requests that we “apply the Suarez rule” here and hold that defendant “need not

establish prejudice if he can show post-conviction counsel was unreasonable for failing to avoid

procedural bars.” At oral argument, defendant’s appellate counsel asserted that defendant was not

seeking to extend Rule 651 to first-stage petitioners who retain counsel. However, appellate

- 16 - counsel urged us to apply a Rule “651(c)-like analysis.” Appellate counsel proposed that we should

remand without considering the merits of defendant’s postconviction claims.

¶ 49 In Johnson, the defendant retained postconviction counsel, who filed the

defendant’s initial postconviction petition. Johnson, 2018 IL 122227, ¶ 5. The trial court

summarily dismissed that petition at the first stage. Johnson, 2018 IL 122227, ¶ 5. The defendant

then filed a timely pro se motion to reconsider, complaining that his counsel excluded multiple

claims from the petition. Johnson, 2018 IL 122227, ¶¶ 6, 8. The trial court denied the defendant’s

motion to reconsider without considering the merits of the additional claims, determining that such

claims were waived because they were not included in the initial petition filed by counsel. Johnson,

2018 IL 122227, ¶ 8.

¶ 50 On appeal to our supreme court, the specific issue in Johnson was whether a

defendant who retains private counsel to file an initial postconviction petition is entitled to

reasonable assistance at the first stage of proceedings. Johnson, 2018 IL 122227, ¶ 13. Our

supreme court determined that a defendant in such position is entitled to reasonable assistance of

counsel. Johnson, 2018 IL 122227, ¶ 23. In light of that holding, because the trial court did not

“reach the substance” of the additional claims the defendant raised in his motion to reconsider, our

supreme court remanded the matter for a determination of whether such claims were “frivolous or

patently without merit.” Johnson, 2018 IL 122227, ¶ 24. According to the court, if such claims

were frivolous or patently without merit, “then the failure to include those claims would not

amount to a denial of reasonable assistance of counsel, and defendant would not be entitled to

relief on his motion to reconsider.” Johnson, 2018 IL 122227, ¶ 24. On the other hand, if any of

the defendant’s additional claims were not frivolous or patently without merit, and if the

defendant’s postconviction counsel “was aware of such claims and refused to include them,” then

- 17 - the defendant “should be permitted to amend his petition with the claims and proceed to the second

stage of postconviction proceedings.” Johnson, 2018 IL 122227, ¶ 24.

¶ 51 We reject defendant’s contention that Johnson calls Zareski’s holding into

question. The Johnson court did not mention Zareski, and the issues in the two cases were different.

As explained above, Zareski considered the proper standard for evaluating claims of unreasonable

assistance when such claims are (1) raised in an appeal from a second-stage dismissal and

(2) asserted against an attorney who filed the initial postconviction petition on the defendant’s

behalf. Johnson, by contrast, addressed whether a defendant may challenge the reasonableness of

retained postconviction counsel’s performance in a pro se motion to reconsider filed in the trial

court after a first-stage dismissal. Moreover, the court in Johnson said that the defendant was not

entitled to advance to the second stage of postconviction proceedings if the additional claims he

identified were frivolous or patently without merit. If anything, Johnson thus supports Zareski’s

holding that the merits of a defendant’s postconviction claims are relevant to evaluating whether

retained counsel provided reasonable assistance.

¶ 52 Defendant directs our attention to language in Johnson about placing all

postconviction petitioners “on an equal footing” at the first stage, irrespective of whether they

retain counsel. Johnson, 2018 IL 122227, ¶ 21. Defendant asserts that had he filed an untimely

pro se initial petition that proceeded to the second stage, and had appointed counsel then failed to

amend that petition to allege a lack of culpable negligence, counsel’s assistance would be deemed

unreasonable under Rule 651(c), and the matter would be remanded without considering the merits

of the postconviction claims. Defendant thus seeks to be put on equal footing with a pro se

petitioner.

- 18 - ¶ 53 The supreme court’s remark in Johnson about equal footing was in response to a

point raised by the appellate court. Our supreme court has cautioned that we should not use general

language from its opinions to support a rule far broader than what was presented by the specific

circumstances of the case. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 30. We thus

reject defendant’s contention that the court’s comment in Johnson about “equal footing” casts

doubt on Zareski’s analysis of an unrelated issue.

¶ 54 Accordingly, we determine that Zareski remains viable in light of Johnson. The

“Strickland-like analysis” that Zareski adopted is a familiar and manageable framework for

evaluating claims of unreasonable assistance where retained counsel filed the defendant’s initial

postconviction petition. We note that we cited Zareski’s standard with approval in three

unpublished orders just last year. See People v. Beverly, 2022 IL App (4th) 210677-U, ¶ 87; People

v. Compton, 2022 IL App (4th) 210032-U, ¶¶ 33, 36; and People v. Schoolcraft, 2022 IL App (4th)

200601-U, ¶ 41. We agree with Zareski that the “automatic-remand rule” announced in Suarez and

other cases is implicated only when counsel violated Rule 651(c). Where Rule 651(c) does not

apply, to justify a remand on a claim of unreasonable assistance, a defendant must identify some

meritorious postconviction claim that he or she lost due to counsel’s conduct. In other words, had

counsel done the things the defendant claims should have been done (including filing the petition

on time or attempting to excuse the untimely filing), the postconviction proceedings would have

advanced to the next stage or the trial court would have granted the defendant postconviction relief.

¶ 55 Our conclusion is consistent with our supreme court’s recent decision in People v.

Pingelton, 2022 IL 127680, ¶ 50, where the court declined to apply Suarez’s rule, despite the court

determining that the trial court violated the defendant’s procedural due process rights at the second

stage of postconviction proceedings. The supreme court noted that Suarez involved a situation

- 19 - where “postconviction counsel’s performance was ‘so deficient that it amount[ed] to virtually no

representation at all.’ ” Pingelton, 2022 IL 127680, ¶ 50 (quoting Suarez, 224 Ill. 2d at 48). The

court explained that “the reasoning underlying the decision in Suarez is premised on the

recognition that the failure to comply with Rule 651(c) could result in consequences that are

difficult to ascertain.” Pingelton, 2022 IL 127680, ¶ 50. By contrast, “[w]here the impact of the

error is quantifiable and found to be harmless, automatic reversal and remand would serve no

useful purpose and would merely delay the dismissal of the postconviction petition.” Pingelton,

2022 IL 127680, ¶ 50.

¶ 56 Here, defendant’s postconviction counsel’s failure to file a timely petition was

error. We note, however, that even the State failed to identify the proper deadline for the petition

at the hearing on the State’s motion to dismiss. Defendant’s postconviction counsel advanced

multiple detailed claims on defendant’s behalf supported by affidavits. Thus, despite counsel’s

mistake as to the filing deadline, this was not a situation where counsel provided defendant

virtually no representation at all. The impact of postconviction counsel’s error is easily quantifiable

if we consider the merits of defendant’s postconviction claims.

¶ 57 The alternative that defendant suggests—a Rule “651(c)-like analysis”—is

unworkable. It makes little sense to assess an attorney’s performance pursuant to a rule that does

not apply to him or her. Defendant’s proposal also would lead to pointless remands for

postconviction proceedings on meritless claims. With the benefit of hindsight and a little creativity,

a defendant whose postconviction petition was dismissed could always think of additional claims

that counsel might have included in the initial postconviction petition or claims that could have

been presented differently. If, as defendant proposes, we cannot consider the merits of those

additional claims when determining whether counsel provided reasonable assistance, the apparent

- 20 - result would be that we would remand every case for further postconviction proceedings whenever

a defendant complained that his or her retained counsel neglected to present a claim. That would

be an absurd result and a waste of judicial resources.

¶ 58 Having established the framework for evaluating defendant’s claim of

unreasonable assistance, we will now address his specific contentions. Defendant proposes that

two of his postconviction claims were meritorious: (1) his challenge to Raschke’s

historical-cell-site-analysis testimony and (2) his challenge to Pena’s testimony about pictures on

Facebook. Defendant further argues that his postconviction counsel provided unreasonable

assistance by failing to develop and present claims pertaining to a Brady violation and ineffective

assistance of trial counsel.

¶ 59 2. Challenge to Raschke’s Testimony

¶ 60 Defendant argues that he made a substantial showing in his postconviction petition

that his due process rights were violated because Raschke’s testimony lacked foundation. We hold

that this claim lacks merit, as the Second District rejected a very similar challenge to Raschke’s

testimony in defendant’s direct appeal. Perez, 2020 IL App (2d) 180073-U, ¶¶ 128-34; see also

People v. Blalock, 2022 IL 126682, ¶ 37 (noting that “issues that were raised and decided on direct

appeal are barred from postconviction consideration by the doctrine of res judicata, while issues

that could have been raised, but were not, are forfeited”). Additionally, the purpose of

postconviction proceedings is to address substantial denials of constitutional rights (725 ILCS

5/122-1(a)(1) (West 2020)), not to repackage evidentiary challenges that were addressed on direct

appeal. See People v. Haines, 2021 IL App (4th) 190612, ¶ 21 (rejecting a postconviction

petitioner’s attempt to recast a previously adjudicated sentencing issue “in constitutional

clothing”).

- 21 - ¶ 61 3. Challenge to Pena’s Description of What He Saw on Facebook

¶ 62 Defendant also argues that he made a substantial showing in his postconviction

petition that his trial counsel was ineffective for failing to preserve a best-evidence-rule challenge

to Pena’s description of what he saw on Facebook. We determine that this claim is forfeited. All

of the facts attendant to this claim were included in the record on direct appeal, and defendant

indeed challenged Pena’s testimony on direct appeal. However, the appellate court declined to

address the issue, as defendant did not cogently invoke the plain-error doctrine. Perez, 2020 IL

App (2d) 180073-U, ¶¶ 142-44. Moreover, defendant did not claim in his postconviction petition

that his appellate counsel was ineffective for failing to present the challenge to Pena’s testimony

in a way that would have allowed the court to address the issue on direct appeal. See Turner, 187

Ill. 2d at 413 (explaining that alleging ineffective assistance of appellate counsel in a

postconviction petition can circumvent forfeiture).

¶ 63 We recognize that defendant’s postconviction counsel also represented defendant

on direct appeal, which could explain why counsel did not allege his own infectiveness. Forfeiture

aside, even if Pena’s description of what he saw on Facebook violated the best evidence rule, such

error would not have resulted in a new trial had appellate counsel properly presented that challenge

on direct appeal. Had defendant’s appellate counsel cogently argued first-prong plain error,

defendant could not have shown that the evidence was closely balanced. “In determining whether

the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence

and conduct a qualitative, commonsense assessment of it within the context of the case.” People

v. Sebby, 2017 IL 119445, ¶ 53. Here, Patton testified that defendant told her immediately after

she heard gunshots that he shot somebody in the face, and Patton saw defendant holding a gun.

Two witnesses, Pena and Brooks, testified that defendant later made inculpatory statements to

- 22 - them. (Although Brooks’s testimony was dubious in that it contradicted some of the known facts

about the shooting, Pena’s testimony did not suffer from the same infirmities.) An analysis of the

phone connected to defendant showed movements on the night of the shooting consistent with the

State’s theory. Under the circumstances, we determine that the evidence was not closely balanced,

so defendant would not have succeeded on direct appeal had his appellate counsel raised a cogent

first-prong-plain-error challenge to Pena’s description of what he saw on Facebook.

¶ 64 For similar reasons, defendant would not have succeeded had his appellate counsel

argued that trial counsel was ineffective for failing to raise and preserve a best-evidence-rule

challenge. To establish prejudice for such ineffective-assistance claim, defendant would have had

to show on direct appeal “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. We conclude that there is no reasonable probability that the result of defendant’s trial

would have been different had the jury not heard Pena’s description of what he saw on Facebook.

As explained above, the evidence connecting defendant to the shooting was not closely balanced.

¶ 65 4. Claims Not Included in the Postconviction Petition

¶ 66 Defendant also maintains that his postconviction counsel provided unreasonable

assistance by (1) failing to supplement the petition to develop a claim that the State committed a

Brady violation and (2) failing to argue that trial counsel was ineffective for not calling Sanchez

as a witness. Defendant’s argument lacks merit.

¶ 67 Notably, defendant does not contend that the record contains information from

which it could be argued that he made a substantial showing of a Brady violation. Defendant

instead seems to speculate that his postconviction counsel might have been able to make a

- 23 - substantial showing of a Brady violation had counsel further investigated the vague statements in

Pena’s text messages. Defendant’s argument is flawed. The record does not contain information

supporting a conclusion that postconviction counsel could have presented a meritorious Brady

claim, so we cannot say that counsel provided unreasonable assistance in connection with that

issue. See Zareski, 2017 IL App (1st) 150836, ¶¶ 58-59 (adopting a “Strickland-like analysis,”

pursuant to which the court presumes postconviction counsel was competent and requires the

defendant to show prejudice).

¶ 68 The record also does not support defendant’s assertion that his postconviction

counsel failed to conduct an adequate investigation. Counsel drafted an initial petition presenting

six detailed claims with accompanying evidentiary support. Counsel used the information in

Pena’s text messages to support a claim of actual innocence, not a Brady violation. Nevertheless,

the trial court advanced defendant’s petition to the second stage by spotting a potential Brady issue

sua sponte. After the trial court did so, postconviction counsel told the court that he would need to

amend the petition. When the matter returned to court, postconviction counsel said, “I conferred

with my client. We’re going to stand on the first original one.” Thus, rather than showing that

postconviction counsel failed to investigate defendant’s potential Brady claim, the record supports

an inference that counsel and defendant collectively decided not to amend the petition to include

that claim.

¶ 69 Defendant’s new contention that his trial counsel was ineffective for not calling

Sanchez as a witness also lacks merit. Determining which witnesses to call typically is a matter of

trial strategy, and strategic errors constitute ineffective assistance only where “ ‘counsel entirely

fails to conduct any meaningful adversarial testing.’ ” (Internal quotation marks omitted.) Custer,

2019 IL 123339, ¶ 39 (quoting People v. West, 187 Ill. 2d 418, 432-33 (1999)). The record

- 24 - confirms that defendant’s trial counsel subjected the State’s case to rigorous adversarial testing.

Moreover, we note that Sanchez attested in his affidavit that he “was never questioned by the

police as to whether [defendant] was present at the party” on the night of the shooting. (Emphasis

added.) Sanchez did not claim that he never spoke with defendant’s trial counsel. The record does

not support defendant’s contention that his trial counsel was ineffective for failing to call Sanchez

as a witness.

¶ 70 5. Conclusion Regarding Unreasonable Assistance

¶ 71 We determine that defendant did not sustain prejudice from his postconviction

counsel’s performance. Therefore, counsel did not provide unreasonable assistance.

¶ 72 B. Actual Innocence

¶ 73 Defendant next argues that he made a substantial showing of actual innocence

based on Boyd’s affidavit and the DNA evidence.

¶ 74 A claim of actual innocence requires evidence that is “(1) newly discovered,

(2) material and not cumulative, and (3) of such conclusive character that it would probably change

the result on retrial.” Robinson, 2020 IL 123849, ¶ 47. “Newly discovered” means that the

evidence was discovered after trial and the petitioner could not have discovered it earlier through

the exercise of due diligence. Robinson, 2020 IL 123849, ¶ 47. “Material” means that the evidence

is “relevant and probative of the petitioner’s innocence.” Robinson, 2020 IL 123849, ¶ 47.

“Noncumulative” means that the evidence “adds to the information that the fact finder heard at

trial.” Robinson, 2020 IL 123849, ¶ 47. The “conclusive character” requirement is “the most

important element of an actual innocence claim”; it means that the new evidence, “when

considered along with the trial evidence, would probably lead to a different result.” Robinson,

2020 IL 123849, ¶ 47. In other words, “[t]he new evidence need not be entirely dispositive[,]” but

- 25 - it must “place[ ] the trial evidence in a different light and undermine[ ] the court’s confidence in

the judgment of guilt.” Robinson, 2020 IL 123849, ¶ 48.

¶ 75 We hold that defendant failed to make a substantial showing of actual innocence.

The trial court found that Boyd’s affidavit provided “possible sources of new evidence” but was

“not new evidence itself.” The court noted that Boyd had no personal information about the case,

nor did she specify the details of other witnesses’ potential testimony referenced in Pena’s text

messages. Without knowing the nature of the potential testimony referenced in the text messages,

the court determined that defendant had not shown that such evidence was material,

noncumulative, or conclusive. We agree with this assessment. Pena’s vague statement in his text

messages that he had information that an unspecified witness lied at trial does not undermine

confidence in the judgment of guilt. Accepting defendant’s assumption that Pena was implying

that Brooks lied at trial, it was already evident to the jury that some of the things Brooks claimed

defendant told him did not conform to the known facts about the shooting.

¶ 76 The trial court determined that the DNA evidence was newly discovered but not

material, as “[t]he jury knew that the DNA on the weapon was not the defendant’s.” The court

reasoned that “[t]he only help to the defendant to knowing this information earlier would have

been to avoid making incriminatory statements to Mr. Pena trying to explain the presence of female

DNA on the weapon.” According to the court, “[b]ecause the DNA test does not even meet the

materiality threshold, it cannot come anywhere near the requirement of undermining the court’s

confidence in the judgment of guilt.” We agree with this assessment. The source of the female

DNA on the murder weapon was a collateral issue at trial.

¶ 77 III. CONCLUSION

¶ 78 For the reasons stated, we affirm the trial court’s judgment.

- 26 - ¶ 79 Affirmed.

- 27 - People v. Perez, 2023 IL App (4th) 220280

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 13-CF- 270; the Hon. C. Robert Tobin III, Judge, presiding.

Attorneys Ian M. Barney and Madison N. Heckel, of Barney & Hourihane, for LLP, of Evanston, for appellant. Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, for David J. Robinson, and Melissa S. Schwoerer, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 28 -