NOTICE 2023 IL App (4th) 220389-U FILED This Order was filed under February 28, 2023 Supreme Court Rule 23 and is NO. 4-22-0389 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County ANTONIO PHILLIPS, ) No. 10CF86 Defendant-Appellant. ) ) Honorable ) Raylene Grischow, ) Judge Presiding. ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err by granting the State’s motion to dismiss defendant’s amended postconviction petition on the basis that it did not make a substantial showing of a constitutional violation.
(2) Defendant failed to establish that he was entitled to additional second-stage postconviction proceedings due to the alleged unreasonable assistance of his postconviction counsel.
¶2 Defendant, Antonio Phillips, appeals from the trial court’s second-stage dismissal
of his postconviction petition. He argues he is entitled to remand for further postconviction
proceedings because (1) his petition made a substantial showing that his constitutional right to
conflict-free representation was violated and (2) he received unreasonable assistance from his
postconviction counsel due to counsel’s failure to pursue defendant’s pro se claim that his de facto
life sentence was unconstitutional. We affirm. ¶3 I. BACKGROUND
¶4 In February 2010, a grand jury indicted defendant on one count of first degree
murder (720 ILCS 5/9-1(a)(3) (West 2008)) and one count of armed robbery (id. § 18-2(a)). The
charges were based on allegations that defendant, or someone for whom he was legally
accountable, took a wallet from the victim, William Suggs, by the use of force and while carrying
a firearm and discharged that firearm, striking Suggs and causing his death.
¶5 In March 2013, defendant’s jury trial was conducted. The State’s evidence showed
that at approximately 12:44 a.m. on December 10, 2009, the Springfield Police Department
received a report of a “slumped male driver.” Officers responded to the scene and found Suggs
seated behind the wheel of a vehicle. He had been shot in the face at close range and was deceased.
¶6 During the course of the investigation into Suggs’s murder, defendant and his
cousin, Jonathon Phillips, came to the attention of the police. The State’s evidence showed that
defendant and Jonathon were together the evening of December 9, 2009, in the hours prior to the
shooting. Two witnesses testified that they saw defendant and Jonathon that evening and heard
them discuss committing a robbery. The same night, Jonathon was both observed and
photographed with a gun. An individual who resided with Jonathon’s mother reported seeing
defendant and Jonathon during the evening of December 9 or the early morning hours of December
10, 2009. Defendant appeared nervous. He reported that he and Jonathon had been “riding with a
friend,” and after Jonathon exited the vehicle to smoke a cigarette, defendant told the friend to
“give it up.” Defendant and the friend then scuffled with the gun, and it discharged. Defendant
stated he and Jonathon fled the scene in different directions.
¶7 The State’s evidence showed that in the days after the shooting, defendant sold a
gun to an individual named Hayes Miller and fled Springfield. The gun defendant sold was later
-2- recovered by the police. Forensic testing showed the bullet recovered from Suggs’s body “could
have been fired from” that gun. While in jail following his arrest, defendant told another inmate
that he needed to “get in touch with *** Miller so they [could] get rid of the gun that had a body
on it.” After his arrest, defendant was also interviewed twice by the police. He denied any
connection to the charged offenses, but his story changed several times. Ultimately, defendant
admitted to being inside of Suggs’s car on the night of the shooting and disposing of Suggs’s
wallet.
¶8 Finally, the State presented evidence of an armed robbery that occurred on
December 6, 2009, four or five blocks away from where Suggs was later found. The victim in that
case was a taxicab driver, who stated he picked up a fare and was robbed at gunpoint. The victim
identified defendant as his assailant from a photographic lineup.
¶9 The jury found defendant guilty of both charged offenses. In May 2013, the trial
court denied defendant’s posttrial motion and conducted his sentencing hearing. Defendant’s
presentence investigation report (PSI) showed he was born in February 1990 and was 19 years old
at the time of the alleged offenses. He had prior juvenile adjudications for two counts of battery
and one count of disorderly conduct in 2004 (Sangamon County case No. 04-JD-16) and for
possession of a controlled substance in 2006 (Sangamon County case No. 06-JD-43). In connection
with his 2004 case, defendant was placed on one year of probation, beginning in May 2004. His
probation was extended to August 2005 “due to a revocation based on his failure to attend school.”
In August 2005, a petition to revoke defendant’s probation was filed, alleging he ingested illegal
substances. His term of probation terminated the same month.
¶ 10 In his 2006 case, defendant was again placed on probation for a period of one year.
In December 2006, he was determined to have violated his probation and was committed to the
-3- juvenile division of the Illinois Department of Corrections (DOC). Twice, defendant was granted
parole, but he was recommitted after parole violations. He was ultimately released from DOC in
September 2009. Although defendant’s PSI showed he had no prior adult criminal convictions at
the time of his sentencing in the underlying case, he had pending felony charges for armed robbery
and aggravated robbery (Sangamon County case No. 09-CF-1084) and a pending misdemeanor
charge for criminal damage to property (Sangamon County case No. 09-CM-410).
¶ 11 The PSI further showed that defendant was the youngest of nine children born to
his mother. He had no contact with his biological father since birth. At age five, defendant was
adopted by his aunt “due to his mother’s drug use and inability to care for the defendant or his
siblings.” In 2004, defendant’s aunt passed away and defendant began living with his older sister,
who became his guardian. Defendant reported that he had regular contact with his mother. He also
had one daughter, who was four years old and resided with her mother in Minnesota.
¶ 12 According to the PSI, defendant had completed school through only the eighth
grade, and he had no known history of employment. He reported that he began consuming alcohol
at age 16 and used alcohol on a regular basis until his arrest for the underlying offenses. Defendant
stated he began using cannabis on a regular basis at nine years old and that he used cannabis “ ‘all
day, everyday’, before his arrest.” He denied any other drug use.
¶ 13 As evidence in aggravation, the State presented testimony from Detective Ryan
Sims with the Springfield Police Department. Sims testified he investigated the underlying
offenses, as well as an armed robbery that occurred on October 27, 2009, approximately three
blocks from where Suggs’s body was later found. The victim in the October 2009 case reported
that she stopped her vehicle at a four-way stop around 1 a.m., when a male opened her passenger
door, entered her vehicle, pointed a gun at her, and forcefully demanded money. The man took
-4- $40 from the victim and fled the scene. Sims stated he showed the victim a photographic lineup
and she identified defendant as the person who robbed her.
¶ 14 The record reflects the State also presented testimony from Suggs’s mother, who
described the effect Suggs’s death had upon his family. The trial court considered victim impact
statements written by both of Suggs’s parents, as well as defendant’s PSI. Defendant did not
present any additional evidence.
¶ 15 The State argued defendant faced a sentencing range of 35 to 75 years in prison—
a range of 20 to 60 years for murder plus a 15-year sentencing enhancement due to the use of a
firearm. It recommended that the trial court impose a 60-year sentence, noting defendant’s history
of delinquency and criminal activity and arguing he was a danger to the community. Defendant’s
counsel asked the court to impose a 35-year sentence, arguing defendant’s criminal conduct was
facilitated by Jonathon and noting defendant’s “youth” and lack of an adult record.
¶ 16 Finding defendant’s armed robbery count merged into his first degree murder
count, the trial court sentenced defendant to 65 years in prison for first degree murder. The court
stated it had considered the evidence presented and “studied” defendant’s PSI and concluded as
follows: “[A]lthough [defendant] does not have an adult history *** this very young man is a threat
to our society.”
¶ 17 Defendant filed a motion to reconsider his sentence, arguing the trial court failed to
adequately consider mitigating evidence contained within his PSI, specifically his age, potential
for rehabilitation, strong family ties, strong community ties, and “that an excessive term of
imprisonment [would] entail [an] excessive hardship to his family.” On May 29, 2013, the court
conducted a hearing on defendant’s motion. Defendant’s counsel asked the court to reconsider the
sentence it imposed and “refocus on [defendant’s] age.” He argued defendant had a child and was
-5- “so young that the potential for rehabilitation *** [was] great.” The court denied the motion,
stating as follows:
“I did take into account all of the factors in aggravation and what factors in
mitigation that there were, and I believe the 65 years was a very appropriate
sentence considering the horrendous nature of this offense, the damage that it
caused, the other evidence presented by the State as to this individual basically
wreaking havoc in the area [in] a very short time before this occurrence took place.”
On direct appeal, this court affirmed the trial court’s judgment. People v. Phillips, 2015 IL App
(4th) 130459-U, ¶ 50.
¶ 18 In March 2016, defendant filed a pro se postconviction petition, raising several
claims of alleged constitutional error. Relevant to this appeal, he asserted that his 65-year sentence
violated the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and
the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because
when imposing his sentence, the trial court failed to consider his youth, his “minimal involvement
in the commission of the” charged offenses, or his lack of a prior violent criminal history. To
support his claim, defendant cited case authority, including United States Supreme Court’s
decision in Miller v. Alabama, 567 U.S. 460 (2012), which recognized that juveniles are
constitutionally different from adults for sentencing purposes and setting forth limits on the
imposition of life sentences for juvenile offenders. Defendant pointed out that he was 19 years old
at the time of the alleged offenses and argued that sentencing considerations applicable to juvenile
offenders should also be applied to him as a young adult.
¶ 19 The trial court advanced defendant’s pro se petition to the second stage of
postconviction proceedings and appointed counsel for defendant. In August 2021, defendant’s
-6- postconviction counsel filed an amended postconviction petition on defendant’s behalf. The
petition set forth a single claim of error that defendant was deprived of his constitutional right to
the effective assistance of counsel because his trial attorney, Craig Reiser, contemporaneously
represented “a potential State witness.”
¶ 20 In the amended petition, defendant alleged Reiser represented him in the underlying
case from February 11, 2010, shortly after the charges were filed against him, through May 22,
2013, the date of his sentencing. He asserted that on March 25, 2010, Reiser also began
representing an individual named Maurice Watts in an unrelated case, which went to trial on July
21, 2010, and during which “Reiser served as lead defense counsel.” According to defendant,
Watts was “housed” at the Sangamon County Jail with both defendant and Jonathon from March
to October 2010. Defendant alleged that in May 2010, Watts contacted the police about
defendant’s and Jonathon’s cases, “ostensibly to help himself.” On May 18, 2010, Watts met with
detectives at the jail and told them “damaging information about [defendant],” specifically that he
overheard defendant confess to shooting Suggs. Defendant alleged that Watts appeared on the
State’s witness list in his case and that he had been unaware that “a potential State witness was
also being represented by his attorney.” Defendant maintained such circumstances resulted in a
per se conflict of interest and a violated his sixth amendment right to counsel.
¶ 21 In support of his claim, defendant presented a police report, dated June 15, 2010,
and which described law enforcement’s May 18, 2010, interview with Watts. According to the
report, detectives met with Watts at the Sangamon County Jail. Watts reported that he knew
defendant and Jonathon from “being in jail,” and stated he had been “housed with them both on
separate occasions.” During the interview, Watts reported that Jonathon told him that defendant
had robbed and shot Suggs. Watts also asserted that he heard defendant make incriminating
-7- statements about his involvement in Suggs’s murder.
¶ 22 Defendant also presented a printout from the Sangamon County Circuit Clerk’s
Office of the case information for Watt’s criminal case (Sangamon County case No. 10-CF-153).
The printout showed that on March 25, 2010, Reiser was appointed to represent Watts in that case.
Reiser’s representation continued through the date of Watts’s July 2010 jury trial, which resulted
in a guilty verdict, and Watts’s sentencing in October 2010. Reiser’s representation of Watts ended
on December 20, 2010, when, after the trial court denied Watts’s motion to reconsider his sentence,
Watts asserted his desire to appeal, and the court appointed the Office of the State Appellate
Defender to represent him.
¶ 23 The underlying record in defendant’s case shows that in August 2012, the State
disclosed a “[r]ecorded [i]nterview” with Watts and named Watts as a potential witness in
defendant’s case. In March 2013, Watts’s name also appeared on an amended witness list disclosed
by the State. Ultimately, however, Watts did not testify as a witness at defendant’s jury trial.
¶ 24 In August 2021, defendant’s postconviction counsel filed an amended certificate
pursuant to Rule 651(c) (eff. July 1, 2017). Counsel asserted as follows:
“1. I am the attorney for the [defendant].
2. I have consulted with the [defendant] via telephone to ascertain his
contentions of deprivation of constitutional rights.
3. I have examined the record of the trial proceedings.
4. Amendments to the petition filed pro se are required for an adequate
representation of [defendant’s] contentions.”
¶ 25 In September 2021, the State filed a motion to dismiss defendant’s amended
postconviction petition. It asserted defendant’s claim of error was “waived” because it could have
-8- been raised on direct appeal but was not. Alternatively, the State asserted defendant’s allegations
did not support a claim of ineffective assistance based on a per se conflict of interest because
Reiser did not contemporaneously represent a prosecution witness at the time of defendant’s trial.
It noted that Reiser’s representation of Watts ended before Watts appeared on the State’s witness
list in defendant’s case and that Watts was ultimately never called to testify as a witness at
defendant’s trial.
¶ 26 Following a hearing and additional filings by the parties, the trial court entered a
written order in February 2022, granting the State’s motion to dismiss defendant’s amended
postconviction petition. In setting forth its decision, the court noted that Reiser’s representation of
Watts ended in December 2010, and that Watts did not appear on the State’s witness list in
defendant’s case “until approximately two years later.” Additionally, it pointed out that
defendant’s trial did not begin until March 2013 and that Watts was never called to testify. The
court concluded that, “[w]hile Reiser did represent both Watts and [defendant] in 2010, a
significant amount of time elapsed before [defendant’s] case went to trial” and “there was no per se
conflict because Watts was never an actual witness.”
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Second-Stage Dismissal of Defendant’s Amended Postconviction Petition
¶ 30 On appeal, defendant first argues that the trial court erred by granting the State’s
motion to dismiss his amended postconviction petition at the second stage of postconviction
proceedings. He contends his petition made a substantial showing that his sixth amendment right
to counsel was violated because Reiser, his trial attorney, “labored under an undisclosed per se
conflict of interest by contemporaneously representing [him] and *** Watts[,] who was a witness
-9- for the prosecution against [him].”
¶ 31 “The Post-Conviction Hearing Act [(Act)] provides a procedural mechanism
through which criminal defendants can assert that their federal or state constitutional rights were
substantially violated in their original trials or sentencing hearings.” People v. Buffer, 2019 IL
122327, ¶ 12, 137 N.E.3d 763. “The Act provides a three-stage process for the adjudication of
postconviction petitions.” Id. ¶ 45. At the first stage, the trial court independently reviews the
defendant’s petition without input from the State. People v. House, 2021 IL 125124, ¶ 16, 185
N.E.3d 1234. The court may summarily dismiss the petition upon a determination that “it is
‘frivolous or is patently without merit.’ ” Id. (quoting 725 ILCS 5/122-2.1(a)(2) (West 2008)).
¶ 32 A petition that is not summarily dismissed advances to the second stage, where the
trial court may appoint counsel to represent the defendant and the State may file responsive
pleadings. Id. ¶¶ 16-17. During the second stage, the court determines “whether the postconviction
petition and any accompanying documentation make a substantial showing of a constitutional
violation.” Id. ¶ 17.
“The second stage of postconviction review tests the legal sufficiency of the
petition. Unless the petitioner’s allegations are affirmatively refuted by the record,
they are taken as true, and the question is whether those allegations establish or
‘show’ a constitutional violation. In other words, the ‘substantial showing’ of a
constitutional violation that must be made at the second stage [citation] is a measure
of the legal sufficiency of the petition’s well-pled allegations of a constitutional
violation, which if proven at an evidentiary hearing, would entitle petitioner to
relief.” (Emphasis omitted.) People v. Domagala, 2013 IL 113688, ¶ 35, 987
N.E.2d 767.
- 10 - A petition that makes a substantial showing of a constitutional violation at the second stage of
proceedings will be advanced for a third-stage evidentiary hearing, while one that does not is
subject to dismissal. House, 2021 IL 125124, ¶ 17. The second-stage dismissal of a postconviction
petition is subject to de novo review. People v. Dupree, 2018 IL 122307, ¶ 29, 124 N.E.3d 908.
¶ 33 As set forth above, defendant’s amended postconviction petition alleged Reiser, his
defense counsel, labored under a per se conflict of interest. “A criminal defendant’s sixth
amendment right to effective assistance of counsel includes the right to conflict-free
representation.” People v. Yost, 2021 IL 126187, ¶ 36, 184 N.E.3d 269. “Such representation
means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests
or inconsistent obligations.” (Internal quotation marks omitted.) People v. Peterson, 2017 IL
120331, ¶ 102, 106 N.E.3d 944.
¶ 34 “Illinois law recognizes two types of conflict of interest—actual and per se. Yost,
2021 IL 126187, ¶ 37. “A per se conflict of interest exists when specific facts about the defense
attorney’s status, by themselves, create a disabling conflict.” Id. ¶ 39. To establish the existence
of a per se conflict, a defendant is not required to show that his counsel’s performance was affected
by the conflict or that he suffered actual prejudice. Id. Rather, “a criminal defendant asserting the
existence of a per se conflict ‘must show the attorney has a contemporaneous conflicting
professional commitment to another.’ ” Id. ¶ 59 (quoting People v. Hillenbrand, 121 Ill. 2d 537,
544, 521 N.E.2d 900, 903 (1988)). Our supreme court has recognized that per se conflicts of
interest fall into only three categories:
“(1) when defense counsel has a contemporaneous association with the victim, the
prosecution, or an entity assisting the prosecution; (2) when defense counsel
contemporaneously represents a prosecution witness; and (3) when defense counsel
- 11 - was a former prosecutor who was personally involved in the prosecution of the
defendant.” Id. ¶ 66.
¶ 35 The justification for finding per se conflicts in the above circumstances “is that, in
each situation, the defense counsel’s association or tie to the victim, the prosecution, or a
prosecution witness may have subtle or subliminal effects on counsel’s performance that are
difficult to detect and demonstrate.” Peterson, 2017 IL 120331, ¶ 103. “Unless a defendant waives
his right to conflict-free representation, the existence of a per se conflict of interest is grounds for
automatic reversal.” Id. ¶ 104. Additionally, when the facts are undisputed, the issue of whether a
per se conflict of interest exists is a legal question that is reviewed de novo. People v. Fields, 2012
IL 112438, ¶ 19, 980 N.E.2d 35.
¶ 36 Defendant argues his case falls into the second category of per se conflicts of
interest, in that Reiser contemporaneously represented a prosecution witness. We disagree and find
the supreme court’s decision in People v. Morales, 209 Ill. 2d 340, 808 N.E.2d 510 (2004), is
dispositive of the issue.
¶ 37 In Morales, the defendant’s attorney represented a potential State witness, Jorge
Hernandez, in an unrelated federal case at the same time the attorney represented the defendant.
Id. at 344. Ultimately, Hernandez did not testify at the defendant’s trial, although parts of a letter
he wrote were introduced by the State at the defendant’s sentencing. Id. at 344-45. On appeal, the
defendant claimed his attorney’s contemporaneous representation of Hernandez created a conflict
of interest that violated his sixth amendment right to the effective assistance of counsel. Id. at 345.
The supreme rejected the defendant’s claim, stating as follows:
“This case most closely resembles the cases in which defense counsel
contemporaneously represented a prosecution witness, because Hernandez was a
- 12 - potential witness for the State. It is undisputed that [the defendant’s attorney] had
an attorney-client relationship with Hernandez while he represented defendant. The
question becomes whether Hernandez’s relationship to the case triggers the per se
rule. *** A per se conflict is one in which ‘facts about a defense attorney’s status
*** engender, by themselves, a disabling conflict.’ [Citation.] In this case,
Hernandez was a potential witness and his out-of-court statements about defendant
in a letter were admitted into evidence at sentencing. However, the fact remains
that he was never a witness. Thus[,] defense counsel never assumed the status of
attorney for a prosecution witness. We therefore hold that [defense counsel’s]
simultaneous representation of Hernandez and defendant did not constitute a per se
conflict of interest.” (Emphasis in original.) Id. at 346.
¶ 38 The supreme court also rejected an argument by the defendant that it should
“disregard Hernandez’s status as merely a potential witness” because Hernandez was someone
who could have benefited from an unfavorable verdict for the defendant. Id. It found there was no
basis in the record “for concluding that Hernandez stood to gain from [the] defendant’s
conviction.” Id. The court stated that “whether Hernandez wanted a particular result from [the]
defendant’s trial depend[ed] on unknown facts about Hernandez” and that “[s]peculation that
Hernandez might have stood to benefit from a verdict against defendant [did] not support
application of the per se rule.” Id. at 347.
¶ 39 The circumstances of the present case are similar to Morales. For a period of time
in 2010, Reiser contemporaneously represented defendant in the underlying case and Watts in an
unrelated matter. After Reiser’s representation of Watts had ended, the prosecution disclosed
Watts’s recorded interview with detectives and identified Watts as a potential witness in the case.
- 13 - Significantly, however, Watts was never called as a witness at defendant’s trial. Like in Morales,
Reiser “never assumed the status of attorney for a prosecution witness,” and his simultaneous
representation of defendant and Watts did not constitute a per se conflict of interest. Id. at 346.
¶ 40 As the defendant did in Morales, defendant in this case suggests a different result
is warranted because Watts likely expected to benefit from providing evidence against defendant.
He points out that at defendant’s trial, other State witnesses “explicitly testified to cooperating
with the police with the hopes of securing a deal from the prosecution.” However, similar to
Morales, defendant’s contentions are without factual support and entirely speculative. The
allegations of his petition and the documentation he presented show only that Watts spoke with
detectives about his case in May 2010 and that Watts was disclosed as a potential prosecution
witness for the first time in August 2012, long after Watts had already been convicted and
sentenced in his own criminal case. Defendant presents nothing to show how Watts could have
benefited from a guilty verdict in defendant’s case under these circumstances.
¶ 41 Defendant also asks this court to consider the special concurrence in Morales,
wherein Justice Kilbride stated he would have found a per se conflict of interest based on the
defense counsel’s contemporaneous representation of the defendant and Hernandez, but also a
waiver by the defendant of his right to conflict-free representation. Morales, 209 Ill. 2d at 352
(Kilbride, J., specially concurring, joined by Rarick, J.). In setting forth his rationale for finding a
per se conflict, Justice Kilbride noted that the supreme court had “consistently held that a ‘possible
conflict of interest’ dictated ‘application of a per se rule.’ ” Id. Thus, he reasoned that only a
“ ‘potential’ conflict,” not an “ ‘actual’ conflict,” was necessary to constitute a per se conflict. Id.
He concluded that it was “enough” in the defendant’s case “that the defendant’s attorney [was]
representing or ha[d] represented a ‘potential’ State’s witness.” Id.
- 14 - ¶ 42 We note, however, that majority decisions of the supreme court are binding upon
this court when we are presented with an analogous case. See Blumenthal v. Brewer, 2016 IL
118781, ¶ 61, 69 N.E.3d 834 (stating that under the doctrine of stare decisis, appellate courts are
bound by supreme court decisions on any point and must follow those decisions in similar cases).
Morales presents similar factual circumstances to the case at bar, and defendant presents no valid
basis upon which to depart from the majority’s holding in that case. See also People v. White, 2011
IL App (1st) 092852, ¶ 103, 963 N.E.2d 994 (“[W]e are bound by Morales, where the Illinois
Supreme Court found no per se conflict when defense counsel represents a potential prosecution
witness.”).
¶ 43 Finally, defendant also asks us to consider and follow the First District’s recent
decision in People v. Matthews, 2021 IL App (1st) 192180-U. Although Matthews is an
unpublished decision, it may be cited as persuasive authority on review. See Ill. S. Ct. R. 23(e)(1)
(eff. Jan. 1, 2021) (providing that a nonprecedential order entered under Rule 23(b) “may be cited
for persuasive purposes”).
¶ 44 In that case, the defendant was convicted of first degree murder and sentenced to
50 years in prison. Matthews, 2021 IL App (1st) 192180-U ¶ 4. He later sought leave to file a
successive postconviction petition, alleging, in part, that his trial attorney had labored under a
conflict of interest because he contemporaneously represented a potential prosecution witness,
Tarzay Wilson, in an unrelated case. Id. ¶ 15. He further alleged that Wilson was also the mother
of his codefendant in the underlying case and a cousin to the murder victim. Id. Although Wilson
was a named witness in the defendant’s case, she did not testify at his trial. Id. ¶ 18. The trial court
denied the defendant leave to file a successive postconviction petition, and he appealed. Id. ¶ 21.
On review, the First District reversed, finding defendant’s claims were sufficient to entitle him to
- 15 - further proceedings under the Act. Id. ¶ 37.
¶ 45 In reaching its decision, the First District found the defendant “adequately pled a
claim for a per se conflict of interest,” noting he pled facts that detailed both his attorney’s
contemporaneous representation of Wilson and that Wilson “stood to benefit from the defendant’s
conviction.” Id. ¶ 36. The court rejected the State’s argument that no per se conflict existed
because the potential witness did not ultimately testify at the defendant’s trial. Id. ¶ 34. It reasoned
that a possible conflict was enough to invoke the per se rule and cited Justice Kilbride’s special
concurrence in Morales as “instructive.” Id. ¶¶ 34-35. The court also cited Morales for the
proposition that “when determining whether a possible per se conflict arose from defense
counsel’s representation of a named witness, the question is whether the named witness stood to
benefit from the defendant’s conviction.” (Emphasis omitted.) Id. ¶ 34 (citing Morales, 209 Ill. 2d
at 347). It further determined as follows:
“Here, we need not speculate about whether *** Wilson stood to benefit from the
defendant’s conviction. *** Wilson, quite importantly, is the mother of
[defendant’s] codefendant ***, who was tried separately from the defendant and
who was the only other suspect in the murder. Notably, [the] codefendant *** was
acquitted of all charges in this case. It is reasonable to infer that *** Wilson would
benefit if the defendant, rather than her son, was convicted.” (Emphasis omitted.)
Id.
¶ 46 Here, we find Matthews unpersuasive. Initially, in Matthews, the First District did
not explicitly address the majority holding in Morales that a per se conflict does not exist when a
defendant’s counsel represents only a potential prosecution witness. Instead, the Matthews court
appears to have relied on the conflicting rationale of the special concurrence. For the reasons
- 16 - already stated, we are bound by the majority holding in Morales.
¶ 47 Additionally, the Matthews court relied heavily on the defendant’s well-pled factual
allegation that Wilson, the potential prosecution witness, “stood to benefit from the defendant’s
conviction.” (Emphasis omitted.) Id. In particular, it noted that Wilson was the mother of the
defendant’s codefendant, who was the only other suspect in the charged murder, tried separately
from the defendant, and ultimately acquitted of all charges. As discussed, defendant’s claim in this
case that Watts had a stake in the outcome of his trial was conclusory and speculative.
¶ 48 Under the circumstances presented, we find defendant’s amended postconviction
petition failed to make a substantial showing of a constitutional violation based upon the claim
that he did not receive effective assistance of counsel due to a per se conflict of interest.
Accordingly, the trial court committed no error in granting the State’s motion to dismiss
defendant’s amended postconviction petition.
¶ 49 B. Unreasonable Assistance of Postconviction Counsel
¶ 50 On appeal, defendant also argues that his postconviction counsel provided
unreasonable assistance by abandoning defendant’s viable pro se claim that his 65-year sentence,
a “de facto natural life sentence,” was unconstitutional under the proportionate penalties clause of
the Illinois Constitution. He contends that because the representation he received was
unreasonable, he is entitled to remand for further second-stage postconviction proceedings.
¶ 51 The sixth amendment right to the effective assistance of counsel does not apply in
a postconviction proceeding. People v. Custer, 2019 IL 123339, ¶ 30, 155 N.E.3d 374. Instead, the
Act requires only that postconviction petitioners receive a reasonable level of assistance, “a
standard that is significantly lower than the one mandated at trial by our state and federal
constitutions.” Id. One reason for applying a lower standard in a postconviction case is that a
- 17 - defendant’s presumption of innocence “is stripped away” upon conviction. Id. ¶ 31.
¶ 52 Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) applies when the trial court
appoints counsel for a defendant who initially filed a pro se postconviction petition. People v.
Cotto, 2016 IL 119006, ¶ 41, 51 N.E.3d 802. “Commensurate with the lower reasonable assistance
standard mandated in postconviction proceedings, [Rule 651(c)] sharply limits the requisite duties
of postconviction counsel.” Custer, 2019 IL 123339, ¶ 32. It requires that postconviction counsel
certify that he or she has (1) consulted with the defendant by phone, mail, electronic means or in
person to ascertain the defendant’s contentions of deprivation of constitutional rights,
(2) examined the record of the proceedings at the trial, and (3) made any amendments to the
defendant’s pro se petition that are necessary for an adequate presentation of the defendant’s
contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
¶ 53 “Although strict compliance is not necessary, postconviction counsel must
substantially comply with Rule 651(c).” People v. Mason, 2016 IL App (4th) 140517, ¶ 19, 56
N.E.3d 1141. “The filing of a facially valid Rule 651(c) certificate creates a rebuttable presumption
that counsel acted reasonably and complied with the rule.” (Internal quotation marks omitted.)
People v. Beasley, 2017 IL App (4th) 150291, ¶ 39, 85 N.E.3d 568; see also Custer, 2019 IL
123339, ¶ 32 (“Postconviction counsel may create a rebuttable presumption that reasonable
assistance was provided by filing a Rule 651 certificate.”). Whether postconviction counsel
provided reasonable assistance is reviewed de novo. People v. Jones, 2017 IL App (4th) 140594,
¶ 31, 72 N.E.3d 449.
¶ 54 As set forth above, defendant argues his postconviction counsel acted unreasonably
by omitting one of his pro se claims from the amended petition counsel filed on defendant’s behalf.
Notably, he does not dispute that his postconviction counsel filed a valid Rule 651(c) certificate.
- 18 - ¶ 55 We note that fulfillment of Rule 651(c)’s obligation that postconviction counsel
make necessary amendments to a pro se petition “does not require postconviction counsel to
advance frivolous or spurious claims on defendant’s behalf.” People v. Greer, 212 Ill. 2d 192, 205,
817 N.E.2d 511, 519 (2004). “If amendments to a pro se postconviction petition would only further
a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the
rule.” Id. Where postconviction counsel has filed a valid Rule 651(c) certificate that gives rise to
a rebuttable presumption of reasonable assistance, “the question of whether the [defendant’s]
pro se allegations had merit is crucial to determining whether counsel acted unreasonably by not
filing an amended petition.” People v. Profit, 2012 IL App (1st) 101307, ¶ 23, 974 N.E.2d 813.
The same analysis applies when postconviction counsel files an amended petition and omits a
pro se claim. See People v. Turner, 2022 IL App (2d) 210753, ¶ 11 (“It follows that, where counsel
does file an amended petition, the reasonableness of counsel’s choice to omit a particular pro se
claim from the amended petition likewise depends on the merits of that claim.”); People v. Blake,
2022 IL App (2d) 210154, ¶ 15 (“[W]hen counsel chooses to omit pro se claims from an amended
petition, the reasonableness of that choice depends on the merits of the pro se claims.”).
¶ 56 Here, in his pro se postconviction petition, defendant raised a claim that his 65-year
prison sentence violated the proportionate penalties clause of the Illinois Constitution as applied
to him. Essentially, he argued that as a 19-year-old young adult offender, his brain development
was similar to that of a juvenile and, as a result, he was entitled to, but did not receive, the same
Miller-based sentencing considerations as a juvenile offender.
¶ 57 In Miller, 567 U.S. at 479, which was decided in 2012, the United States Supreme
Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.” In reaching its decision, the Court referenced
- 19 - scientific research that showed “fundamental differences between juvenile and adult minds” and
noted prior case authority establishing that children are constitutionally different from adults for
sentencing purposes. (Internal quotation marks omitted.) Id. at 471-72. “Because juveniles have
diminished culpability and greater prospects for reform, *** they are less deserving of the most
severe punishments.” (Internal quotation marks omitted.) Id. at 471. The Court concluded
“mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s
age and the wealth of characteristics and circumstances attendant to it.” Id. at 476. It held that a
sentencing court must have the ability to consider a juvenile offender’s youth and its attendant
characteristics before imposing a particular penalty. Id. at 483.
¶ 58 In Illinois, Miller has been extended to cases involving juvenile offenders sentenced
to de facto life sentences (People v. Reyes, 2016 IL 119271, ¶ 9, 63 N.E.3d 884) and discretionary
sentences of life without parole (People v. Holman, 2017 IL 120655, ¶ 40, 91 N.E.3d 849). A
de facto life sentence is one that is greater than 40 years. People v. Buffer, 2019 IL 122327, ¶ 42,
137 N.E.3d 763. Additionally, as defendant notes, supreme court case authority has suggested that
proceedings under the Act are an appropriate avenue for a young adult offender to raise an
as-applied, constitutional challenge to his sentence based on the reasoning in Miller. See People
v. Harris, 2018 IL 121932, ¶¶ 46, 48, 120 N.E.3d 900; People v. Thompson, 2015 IL 118151, ¶ 44,
43 N.E.3d 984.
¶ 59 On appeal, defendant argues his pro se claim alleging a violation of the
proportionate penalties clause based on Miller was a “viable” claim. He contends his 65-year
sentence was a de facto life sentence. Defendant also argues that he sufficiently alleged (1) that
the brain-development research applicable to juvenile offenders applied equally to him as a young
adult and (2) the trial court did not properly consider his youth and its attendant characteristics at
- 20 - the time of sentencing. The State responds that defendant’s postconviction counsel did not act
unreasonably by failing to pursue the above claim. It contends the claim was both forfeited by
defendant’s failure to raise it on direct appeal and is without merit.
¶ 60 Initially, we disagree that forfeiture applies in this instance. The State correctly
notes that in a postconviction proceeding, forfeiture bars a defendant from raising “issues that
could have been raised [on direct appeal], but were not.” People v. Blair, 215 Ill. 2d 427, 443-44,
831 N.E.2d 604, 614-15 (2005). When forfeiture precludes “a defendant from obtaining relief,
such a claim is necessarily ‘frivolous’ or ‘patently without merit.’ ” Id. at 445. However, “omitting
a claim in the direct appeal will not result in a forfeiture of the claim in a subsequent postconviction
proceeding if the record on direct appeal did not provide the means of raising the claim.” People
v. Wrencher, 2015 IL App (4th) 130522, ¶ 23, 31 N.E.3d 815. In this instance, defendant’s pro se
claim depended, at least in part, on evidence outside the appellate record, i.e., the science regarding
brain development that could establish his similarity to a juvenile offender. See Harris, 2018 IL
121932, ¶ 46 (noting the record on direct appeal did “not contain evidence about how the evolving
science on juvenile maturity and brain development that helped form the basis for the Miller
decision applie[d] to [the young adult] defendant’s specific facts and circumstances”).
¶ 61 Additionally, we note that “an exception” to the forfeiture doctrine exists in
postconviction proceedings. People v. Turner, 187 Ill. 2d 406, 413, 719 N.E.2d 725, 729 (1999).
Specifically, a postconviction petitioner may overcome the procedural bar of forfeiture by alleging
ineffective assistance of appellate counsel for failing to raise an issue on direct appeal. Id. We note
“the purpose of Rule 651(c) is to ensure that [postconviction] counsel shapes the petitioner’s
claims into proper legal form and presents those claims to the court.” People v. Perkins, 229 Ill.
2d 34, 44, 890 N.E.2d 398, 403 (2008). “An adequate or proper presentation of a petitioner’s
- 21 - substantive claims necessarily includes attempting to overcome procedural bars *** that will result
in dismissal of a petition if not rebutted.” Id. Here, assuming defendant’s pro se claim had merit
and that the appellate record provided the means for raising the claim on direct appeal,
postconviction counsel could be deemed to have acted unreasonably by failing to pursue the claim
and to amend it to prevent application of the forfeiture doctrine.
¶ 62 Although we are not persuaded by the State’s forfeiture argument, we do agree with
its contention that defendant’s pro se claim lacked merit. To establish an as-applied constitutional
challenge to his sentence based on Miller, defendant, as a young adult offender, had to show that:
“(1) at the time of the commission of the underlying offense, his or her own specific
characteristics—those related to youth, level of maturity, and brain development—
placed him or her in the same category as juvenile offenders described in Miller
and (2) his or her sentencing was not Miller compliant, in that a life sentence was
imposed without regard for the offender’s youth and its attendant characteristics.”
People v. Cortez, 2021 IL App (4th) 190158, ¶ 47, 185 N.E.3d 316.
In this case, assuming that defendant can show his entitlement to Miller-related sentencing
considerations, we find he cannot establish that his sentencing was not Miller compliant.
¶ 63 The record shows defendant received a discretionary, de facto life sentence. As
stated, the supreme court has held that Miller applies to discretionary life sentences imposed upon
juvenile offenders. Holman, 2017 IL 120655, ¶ 40; but see People v. Dorsey, 2021 IL 123010,
¶¶ 40-41, 183 N.E.3d 715 (stating Holman’s holding that Miller applies to discretionary life
sentences was “questionable” given the Supreme Court’s recent decision in Jones v. Mississippi,
539 U.S. __, __141 S. Ct. 1307, 1314 (2021), stating that Miller rejected the idea that more than a
discretionary sentence for juvenile offenders is required). In setting forth what it meant to apply
- 22 - Miller, the Holman court stated as follows:
“[A] juvenile defendant may be sentenced to life imprisonment without parole, but
only if the trial court determines that the defendant’s conduct showed irretrievable
depravity, permanent incorrigibility, or irreparable corruption beyond the
possibility of rehabilitation. The court may make that decision only after
considering the defendant’s youth and its attendant characteristics. Those
characteristics include, but are not limited to, the following factors: (1) the juvenile
defendant’s chronological age at the time of the offense and any evidence of his
particular immaturity, impetuosity, and failure to appreciate risks and
consequences; (2) the juvenile defendant’s family and home environment; (3) the
juvenile defendant’s degree of participation in the homicide and any evidence of
familial or peer pressures that may have affected him; (4) the juvenile defendant’s
incompetence, including his inability to deal with police officers or prosecutors and
his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects
for rehabilitation.” Holman, 2017 IL 120655, ¶ 46.
¶ 64 An inquiry into whether a sentencing hearing comported with the requirements of
Miller “looks back to the trial and the sentencing hearing to determine whether the trial court at
that time considered evidence and argument related to the Miller factors.” People v. Lusby, 2020
IL 124046, ¶ 35, 182 N.E.3d 563 (citing Holman, 2017 IL 120655, ¶ 47). Additionally, under a
Holman analysis, “a key feature of the juvenile’s sentencing hearing is that the defendant had the
‘opportunity to present evidence to show that his criminal conduct was the product of immaturity
and not incorrigibility.’ ” People v. Croft, 2018 IL App (1st) 150043, ¶ 23, 100 N.E.3d 577 (citing
Holman, 2017 IL 120655, ¶ 49); see also Lusby, 2020 IL 124046, ¶ 52 (finding the juvenile
- 23 - defendant’s de facto discretionary life sentence passed constitutional muster under Miller, where
defendant had the opportunity to present mitigating evidence but chose not to and the record
showed “[t]he trial court presided over the case from beginning to end and considered the
defendant’s youth and its attendant characteristics before concluding that his future should be spent
in prison”).
¶ 65 Here, the record shows that defendant clearly had the opportunity to present
evidence at his sentencing hearing that was relevant to his youth and its attendant characteristics.
Although he chose not to present any evidence or testimony, his PSI contained information
pertinent to the characteristics of his youth, including his age, his familial and criminal
background, and his level of education. His counsel also presented argument to the trial court that
a less severe sentence was warranted based on defendant’s youth, his lack of an adult record, and
because his crimes were facilitated by another.
¶ 66 In his pro se petition, defendant argued the sentencing court failed to consider his
age, that he was minimally culpable with respect to the charged offenses, and his lack of a prior
violent criminal history. However, the record does not support his argument. The trial court stated
that it had “studied” defendant’s PSI, which defendant points to on appeal as containing “facts
specific to [defendant] that would have impacted his brain development.” The court also explicitly
recognized defendant’s youth. Further, the court’s comments, both at defendant’s sentencing
hearing and at the hearing on his motion to reconsider his sentence, show the court considered and
rejected any argument that defendant was only minimally culpable for the charged offenses.
¶ 67 The sentencing court’s comments further show that although it recognized that
defendant was a youthful offender, it believed a significant sentence was warranted by the
“horrendous” circumstances of the underlying offenses. The court found defendant posed “a threat
- 24 - to *** society” and that he had committed additional, similar armed robberies close in time to
Suggs’s murder. In denying defendant’s motion to reconsider, in which defendant explicitly argued
the court failed to consider his rehabilitative potential, the court described defendant as “wreaking
havoc in the area [in] a very short time before” Suggs’s murder.
¶ 68 Accordingly, even assuming defendant could show that his own specific
characteristics as a 19-year-old offender placed him in the same category as a juvenile offender,
he could not show that his 65-year sentence was imposed without regard for his youth and its
attendant characteristics. In other words, defendant’s sentencing hearing was Miller compliant,
and his pro se claim alleging a violation of the proportionate penalties clause based on Miller and
its progeny lacks merit. Because we find defendant’s pro se claim has no merit, his postconviction
counsel could not have acted unreasonably by failing to raise it in the amended postconviction he
filed on defendant’s behalf. We hold defendant is not entitled to additional second-stage
postconviction proceedings.
¶ 69 III. CONCLUSION
¶ 70 For the reasons stated, we affirm the trial court’s judgment.
¶ 71 Affirmed.
- 25 -