People v. Rokita

2020 IL App (5th) 170339-U

• Court: Appellate Court of Illinois
• Decided: December 8, 2020
• Docket: 5-17-0339
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 170339-U NOTICE Decision filed 12/08/20, This order was filed under corrected 04/08/21. The text of NO. 5-17-0339 Supreme Court Rule 23 and this decision may be changed may not be cited as precedent or corrected prior to the filing of by any party except in the a Petition for Rehearing or the IN THE limited circumstances allowed disposition of the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 93-CF-501 ) FREDERICK ROKITA, ) Honorable ) William G. Schwartz, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Welch and Barberis concurred in the judgment.

ORDER

¶1 Held: Defendant’s appointed counsel did not fail to provide reasonable assistance in postconviction proceedings, and the trial court did not err in granting appointed counsel’s motion to withdraw and dismissing defendant’s pro se successive postconviction petition. Further, defendant is not entitled to a remand for a Krankel-like inquiry into postconviction counsel’s reasonableness under People v. Custer, 2019 IL 123339.

¶2 Defendant, Frederick Rokita, appeals from the trial court’s order granting his

postconviction counsel’s motion to withdraw and dismissing “the post-conviction

proceedings initiated by the defendant.” The defendant argues that postconviction counsel,

Kelley Zuber, provided unreasonable assistance when Zuber sought to withdraw from

representing the defendant, rather than filing an amended successive postconviction 1 petition on the defendant’s behalf. The defendant submits that Zuber could have amended

the defendant’s pro se successive petition to include a claim of actual innocence, supported

by evidence that the victim had impaired vision, the inconclusive results of certain DNA

testing, and the alleged correspondence between the defendant’s brother and the victim’s

daughter via MySpace that implicated someone else committed the crimes. The defendant

also contends that Zuber could have made a claim that the defendant’s convictions for

aggravated criminal sexual assault should be vacated because residential burglary could

not serve as the aggravating felony for aggravated criminal sexual assault. The defendant

asks this court to remand his case for further second stage proceedings. As an alternative

remedy, the defendant asks this court to remand his case for a hearing pursuant to People

v. Krankel, 102 Ill. 2d 181 (1984), to determine whether Zuber provided reasonable

assistance of counsel. For the following reasons, we affirm the trial court’s order allowing

Zuber to withdraw and dismissing the defendant’s pro se successive postconviction

petition.

¶3 I. BACKGROUND

¶4 The defendant was tried and convicted of five counts of aggravated criminal sexual

assault and one count each of home invasion, residential burglary, and theft. Each count of

aggravated criminal sexual assault listed residential burglary as the aggravating factor. At

2 a bench trial, presided over by the Honorable Judge David Watt,1 the following evidence

relevant to this appeal was produced.

¶5 On November 13, 1993, at approximately 7 a.m., C.S. was lying on her bed inside

her mobile home in the Carbondale Mobile Home Park. She was seven months pregnant at

the time. C.S. had just turned off her alarm and noticed that her daughters, ages six and

four, were awake, when she also heard dishes rattling in the kitchen. She got out of bed to

investigate and saw a man standing at the end of the hallway. C.S. thought the man was

her boyfriend, Joe Printy, and she called out his name. The man did not reply but charged

down the hallway. C.S. testified that the man stopped and stood approximately seven

inches from her face. The man grabbed C.S., and they stared at each other for

approximately 15 to 20 seconds. The man then ordered C.S. to go in her bedroom and lie

on her stomach with a blanket over her head. C.S. was unable to lie on her stomach, so she

got on her hands and knees and put the blanket over her head. The man pinned C.S. down

and asked when her boyfriend would return. After C.S. told the man that her boyfriend was

at school, he began to remove her underwear. The man stated that C.S.’s boyfriend had

been sleeping around and owed the man $1300. C.S. told him that she had $260 in a

shoebox on her vanity and thought she heard the man retrieve the money from the shoebox.

The man then began to sexually assault C.S.

1 During the course of the defendant’s case, from its inception through this appeal, several different trial court judges presided over the defendant’s case. For clarity throughout this order, we will refer to each judge individually, rather than as “the trial court.” 3 ¶6 During the sexual assault, C.S. was told to either keep her eyes closed or place

bedding over her face. The man also went to her daughters’ bedroom and threatened to hurt

them if they did not stay in their room. C.S. testified that the man vaginally penetrated her

and forced her to perform oral sex multiple times. C.S. confirmed that the man never

ejaculated. While being forced to perform oral sex a second time, C.S. ran out of the

bedroom and into the hallway. The man chased her, and they struggled in the hallway.

C.S.’s daughter, Rachel,2 came out of her bedroom and witnessed the struggle. C.S. then

escaped outside and ran to a neighbor’s trailer for help. As C.S. was knocking on her

neighbor’s door, the man stood at the front of C.S.’s trailer, “less than two feet” from C.S.,

for a period of 30 to 40 seconds. Several days after the attack, C.S. assisted a sketch artist

in preparing a composite sketch of her attacker. C.S. also indicated that her attacker wore

a plaid shirt. At trial, C.S. identified the defendant as the man who attacked her.

¶7 On November 23, 1993, the defendant was arrested by a police officer who noticed

a resemblance between the defendant and the composite sketch of C.S.’s attacker. Law

enforcement executed a search warrant on the defendant’s home and found two pictures of

him wearing a plaid shirt. When law enforcement showed C.S. the photographs, she

recognized the defendant as her attacker. She also recognized the plaid shirt the defendant

wore in the photograph as the shirt her attacker wore.

¶8 Chris Stark testified that the defendant was staying in Stark’s mobile home at the

Green Acres trailer park. Stark stated that on November 13, 1993, at around 3 a.m., he and

2 The victim’s daughter, Rachel, was not called as a witness at trial. 4 the defendant had an argument. The defendant left and walked in the direction of the

Carbondale Mobile Home Park. Stark testified that the defendant was wearing a “coat-type

flannel shirt” over a regular flannel shirt.

¶9 Peggy Huffstutler, who also lived in the Carbondale Mobile Home Park, testified

that she was awakened by a knock at her door at approximately 5 a.m. on November 13,

1993. She answered the door and spoke to a man through her screen door for about five

minutes. The man asked if “Jason” lived there and where trailer 456 was. The man left after

standing around for approximately five minutes. Huffstutler further testified that the man

returned about 30 minutes later and knocked on her door again. The man again asked about

trailer 456 and began to curse about the people who lived in the trailer court. The man then

asked if he could use Huffstutler’s phone. Huffstutler told the man that she did not have a

phone, and the man left. At trial, Huffstutler identified the defendant as the man she

encountered on the morning of November 13.

¶ 10 Several items of evidence were collected and sent to the police crime lab, including

a pair of underwear and bedding from the victim’s bedroom. C.S. was taken to the hospital

where sexual assault evidence was collected, including vaginal and rectal swabs, as well

as blood and saliva samples. Law enforcement also collected “sexual assault kits” from

C.S.’s boyfriend and the defendant.

¶ 11 After the State concluded its evidence, the defendant presented evidence regarding

the forensic testing of the evidence collected. At the Southern Illinois Forensic Science

Center, sperm cells were found on the rectal swab but not the vaginal swab. The vaginal

swab did, however, test positive for the presence of semen. The samples from the vaginal 5 and rectal swabs, as well as blood standards from both the defendant and C.S., were then

forwarded to the Illinois State Police Forensic Science Laboratory in Springfield, Illinois,

for DNA analysis. David Metzger, the research coordinator who performs DNA analysis

for the Springfield lab, attempted to perform a type of DNA testing known as “restriction

fragment length polymorphism” (RFLP) on the samples. The RFLP procedure failed to

develop a DNA profile from the rectal swab and only produced C.S.’s DNA profile from

the vaginal swab. Metzger testified that the RFLP procedure required a certain amount of

DNA in order to develop a profile, and that RFLP analysis is more successful in developing

a profile when ejaculation occurs. Metzger further testified that he made no findings that

eliminated defendant as a suspect in this case.

¶ 12 Following the conclusion of the defendant’s evidence, Judge Watt heard arguments

from the parties. In the defendant’s closing argument, trial counsel argued that C.S. was

mistaken in her identification of the defendant and pointed out the lack of DNA evidence

linking the defendant to the crimes charged. After both sides had concluded, Judge Watt

reserved his ruling on the home invasion count, but stated, “I can tell all of you very

honestly I have no question about the rest of these counts. You couldn’t have found a better

witness. [C.S.] is a tough lady.” Judge Watt then found the defendant guilty of five counts

of aggravated criminal sexual assault, residential burglary, and theft. The next day, Judge

Watt found the defendant guilty of home invasion. The defendant was subsequently

sentenced to 80 years in the Illinois Department of Corrections.

¶ 13 In his direct appeal, the defendant argued, inter alia, that his residential burglary

conviction must be vacated because the residential burglary offense was the aggravating 6 felony for his aggravated criminal sexual assault convictions. This court agreed with the

defendant and vacated his conviction for residential burglary but affirmed his other

convictions. People v. Rokita, 284 Ill. App. 3d 1153 (1996) (unpublished order under

Supreme Court Rule 23). The defendant petitioned for leave to appeal to the Illinois

Supreme Court but was denied. People v. Rokita, 175 Ill. 2d 549 (1997).

¶ 14 On April 14, 1997, while the defendant’s petition for leave to appeal was pending,

he filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing

Act (725 ILCS 5/122-1 et seq. (West 1996)). The next day, Judge Watt dismissed the

petition as frivolous and patently without merit, and the defendant appealed. His appeal

was ultimately dismissed by this court for want of prosecution. People v. Rokita, No. 5-97-

0285 (June 30, 1998) (unpublished order).

¶ 15 On April 14, 1999, the defendant filed a motion for forensic testing pursuant to

section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 1998))

and a memorandum in support of the motion. Judge Watt held a hearing and denied the

defendant’s motion. The defendant appealed. This court reversed the trial court’s order,

finding that identity was the issue at defendant’s trial, and that the results of DNA testing

requested by defendant had the potential to produce new, noncumulative evidence

materially relevant to his assertion of actual innocence. See People v. Rokita, 316 Ill. App.

3d 292 (2000). Following this court’s ruling, on December 28, 2000, the Honorable Judge

Thomas H. Jones entered an agreed-upon order requiring that several items of evidence be

delivered to Forensic Science Associates for DNA testing.

7 ¶ 16 Meanwhile, on December 22, 2000, the defendant filed a pro se successive

postconviction petition, alleging that his extended term sentence and consecutive sentences

were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Judge Jones

dismissed the successive petition, and this court affirmed the dismissal via summary order.

People v. Rokita, No. 5-01-0217 (June 3, 2003) (unpublished summary order under Illinois

Supreme Court Rule 23(c)).

¶ 17 On October 23, 2002, the defendant filed a hybrid pleading titled, “Petition for Post

Conviction Relief and Motion for Scientific Testing.” Defendant attached several

documents to this successive petition, which included a purported report from Forensic

Science Associates dated August 22, 2001. The report stated that defendant was eliminated

as the source of a spermatozoa found in C.S.’s underwear, but C.S.’s boyfriend could not

be eliminated. No action was taken on this successive petition. On October 19, 2004, the

defendant subsequently filed an “Amended Petition for Post Conviction Relief and Motion

for Additional Forensic Testing”. 3 In this pleading, the defendant claimed, inter alia, that

newly discovered evidence established his actual innocence; counsel who represented the

defendant for purposes of DNA testing failed to submit items of evidence for testing; C.S.

is required to wear corrective lenses while driving which affected her ability to identify her

assailant; and the defendant’s convictions for aggravated criminal sexual assault were void

3 This pleading, which is the principal subject of this appeal, is a combined successive postconviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)) and a motion for DNA testing pursuant to 725 ILCS 5/116-3 (West 1998). For clarity, we will refer to the portion of defendant’s pleading seeking relief under the Post-Conviction Hearing Act as defendant’s “pro se successive petition” and the portion of defendant’s pleading seeking relief pursuant to section 116- 3 as “motion for DNA testing.” 8 “and should be vacated as lesser included offenses.” The defendant also stated in the

petition that the sexual assaults “were not committed during the ‘commission’ of the

residential burglary, and therefore are void and should be vacated.” The defendant attached

several documents to the pro se successive petition and motion for DNA testing, which

included a letter from a private investigator stating that C.S. wears corrective lenses for

driving and the report from Forensic Science Associates referenced above.

¶ 18 No action was taken on the defendant’s pro se successive petition until May 16,

2007, when the Honorable Judge Charles Grace appointed counsel John McDermott to

represent the defendant. The court’s docket entry stated as follows:

“Court reviews file, notes the file first came to this Court’s attention in late April

2007, where Amended Post Conviction Relief filed. Court appoints attorney John

McDermott to represent defendant. Clerk to set for status hearing on all pending

matters with notice to counsel. State to prepare Habeas Corpus Order for

defendant.”

Subsequently, Judge Grace stated that he set the matter for a hearing because the

defendant’s pleadings had been pending for a significant period of time. At the hearing

held on June 14, 2007, McDermott requested additional time to amend the defendant’s

pro se successive petition. McDermott also informed Judge Grace that defendant had

contracted with the Innocence Project who could potentially become involved in the case.

¶ 19 Following the hearing, on August 15, 2007, attorney Chris Cooley of the Innocence

Project entered his appearance for the defendant. Cooley also filed a supplemental motion

for postconviction fingerprint and forensic DNA testing. That same day McDermott filed 9 a certificate stating that he had consulted with defendant to ascertain his contentions of

deprivation of constitutional rights, reviewed the record of proceedings, and would defer

to the Innocence Project to make any amendments to defendant’s pro se successive petition

that were necessary for an adequate presentation of defendant’s contentions. Thereafter,

the State filed a motion to dismiss the defendant’s pro se successive petition and to deny

defendant’s request for supplemental fingerprint and DNA testing. In this motion, the State

argued that defendant’s pro se postconviction claims should be dismissed for failure to

obtain leave of court and that his motion for additional DNA testing should be dismissed

because additional DNA testing had already been completed.

¶ 20 Following a hearing on September 20, 2007, Judge Grace granted the defendant’s

supplemental motion for postconviction fingerprint and forensic DNA testing. No ruling

was made on the State’s motion to dismiss as it pertained to the defendant’s pending

successive postconviction claims. On October 2, 2008, the trial court entered an agreed-

upon order for the submission of items of evidence for additional testing. These items

included C.S.’s underwear and a bed sheet. The testing was to be completed by Orchid

Cellmark, a DNA and forensic testing company.

¶ 21 Over the next two years, the defendant filed several motions seeking to have

McDermott and Cooley removed from the defendant’s case. The defendant disagreed with

how McDermott and Cooley were handling the defendant’s case. On February 5, 2010,

Cooley requested, and was granted, leave to withdraw as the defendant’s counsel.

McDermott also filed a motion to withdraw, and the court granted this motion on July 19,

2011. Judge Grace then appointed Michael Burke, on October 11, 2011, to represent the 10 defendant. Burke took no action on the defendant’s behalf, and Kelley Zuber was

substituted for Burke on September 15, 2014.

¶ 22 Over a year later, on December 21, 2015, the Honorable Judge Kimberly Dahlen

held a hearing to determine the status of the defendant’s case. Judge Dahlen informed the

parties that she had not read the defendant’s pro se postconviction pleadings but denied the

State’s motion to dismiss that was filed in 2007. Zuber advised Judge Dahlen that he was

trying to obtain the results of the additional DNA testing performed by Orchid Cellmark

so that the defendant could have the results reviewed by an expert.

¶ 23 On August 22, 2016, Judge Dahlen held another status hearing. At this hearing,

Zuber informed Judge Dahlen that defendant wished to have the matter continued so that

the defendant could have additional DNA testing completed. Zuber believed, however, that

requests for additional DNA testing fell outside the scope of his representation as appointed

counsel because requests for DNA testing were not covered under the Post-Conviction

Hearing Act, but rather under a motion for DNA testing pursuant to section 116-3. Zuber

opined that the defendant would need to hire separate counsel for any such request. When

asked about the current DNA findings, Zuber stated that the results did not “rule

[defendant] out.” Judge Dahlen granted Zuber an additional 30 days to file an amended

postconviction petition and referred defendant’s case to the Honorable Judge William

Schwartz for further proceedings.

¶ 24 On September 14, 2016, Zuber filed a motion to withdraw pursuant to People v.

Greer, 212 Ill. 2d 192 (2004), because he concluded that he could not make any

amendments to defendant’s pro se successive postconviction petition pursuant to Illinois 11 Supreme Court Rule 651(c) (eff. Feb. 6, 2013). At the hearing on Zuber’s motion, Zuber

stated, again, that he did not believe he could file an amended postconviction petition on

defendant’s behalf. Zuber opined that the defendant’s arguments were either waived,

without legal merit, or had already been decided. Zuber also reaffirmed his belief that

further requests for DNA testing were beyond the scope of his representation. At the

hearing before Judge Schwartz, the defendant stated that he wanted “the full CODIS DNA

profile testing” completed. Judge Schwartz took the matter under advisement.

¶ 25 On November 16, 2016, the defendant filed a motion for substitute counsel, alleging

that Zuber had failed to reasonably represent the defendant, and attached to the motion

were several letters from Zuber and one letter that the defendant sent to Zuber. The

defendant’s motion alleged that Zuber indicated in a letter that he could amend defendant’s

petition to include two claims. First, the victim was required to wear corrective lenses

which affected her identification. The second claim involved correspondence between the

defendant’s brother and C.S.’s daughter on MySpace. The defendant stated in his pleading

that C.S.’s daughter identified her mother’s attacker as a neighbor.

¶ 26 On January 3, 2017, the defendant filed a supplement to his motion for substitute

counsel and attached an affidavit from Dr. Karl Reich, the chief scientific officer of

Independent Forensics of Illinois. In the affidavit, Dr. Reich averred that he had been

retained by the defendant “to provide a professional, scientific perspective for the forensic

methods, screening tests and DNA profile results” in defendant’s case. Dr. Reich’s affidavit

noted the restrictions in identifying a suspect based on the DNA testing done by Orchid

Cellmark and opined that “the only way to obtain definitive identification, or exclusion, of 12 [defendant] *** is to perform somatic/autosomal CODIS DNA profiling on the extracted

DNA” from the bed sheet. In this motion, the defendant alleged that Zuber had a copy of

the Dr. Reich affidavit.

¶ 27 On February 1, 2017, Judge Schwartz, citing People v. Kuehner, 2015 IL 117695,

entered an order finding that Zuber was required to explain to the court why the defendant’s

pro se successive petition was frivolous or patently without merit. Thereafter, Zuber filed

an amended motion to withdraw and a brief in support of the motion. In the motion, Zuber

stated that he consulted with the defendant by phone and mail to ascertain the defendant’s

contentions of deprivation of constitutional rights and examined the record of proceedings

at trial. Zuber claimed he was unable to make any amendments to the amended

postconviction petition “that would be in compliance with the applicable law and allow

Attorney Zuber to file a certificate pursuant to Illinois Supreme Court Rule 651(c).” Zuber

further asserted that the defendant requested Zuber withdraw as counsel. In the brief in

support of his motion, Zuber offered his analysis as to why he concluded each of the

defendant’s claims in his pro se successive petition were frivolous and patently without

merit. 4

¶ 28 Zuber’s brief first addressed the defendant’s claim that his convictions for

aggravated criminal sexual assault were void and must be vacated. Defendant also argued

that he could not be sentenced to an extended term on count III (aggravated criminal sexual

assault) because of the underlying residential burglary. Zuber believed the defendant

4 The defendant has made numerous claims throughout his postconviction proceedings; however, we will only address those necessary to resolve defendant’s contentions on appeal. 13 “waived” these arguments and that they would not have been successful on appeal. Zuber

noted that the defendant had successfully argued in his direct appeal that his residential

burglary conviction should be vacated because it was necessarily included in the offense

of aggravated criminal sexual assault. Zuber also stated that the “residential burglary takes

place during the time that the person remains within the dwelling” and cited to the

residential burglary statute in effect at the time Zuber filed his amended motion to

withdraw. 720 ILCS 5/19-3(a) (West 2016). Zuber went on to say that the sexual assaults

took place while the perpetrator remained within the residence, and that the trial court

found that the burglary and sexual assaults were a single course of conduct. Finally, Zuber

added that this court had already ruled on the issue of an extended term sentence for the

aggravated criminal sexual assault charged in count III, and thus defendant’s claims were

res judicata. 5

¶ 29 The defendant also claimed actual innocence. In response to this argument, Zuber

offered an explanation regarding whether the DNA evidence, C.S.’s vision, and the

MySpace correspondence would support the defendant’s claim of actual innocence. First,

Zuber discussed the results of the DNA testing that had been performed in the defendant’s

case. Zuber listed the requirements to make an actual innocence claim and cited to our

supreme court’s decision in People v. Coleman, 2013 IL 113307. Zuber concluded that the

5 In the direct appeal of his conviction, the defendant argued that he could not be sentenced to an extended term sentence on count III (aggravated criminal sexual assault) because his conduct was not extremely brutal and heinous and was inherent in his offense. This court disagreed and affirmed the defendant’s conviction and sentence with respect to this issue. People v. Rokita, 284 Ill. App. 3d 1153 (1996) (unpublished order under Supreme Court Rule 23). 14 DNA testing results from Orchid Cellmark would be considered new evidence. He did not,

however, believe that the results could support a claim of actual innocence because the

defendant was not excluded as a contributor to the DNA sample found on C.S.’s bed sheet.

Zuber noted that Dr. Reich’s affidavit stated that more DNA testing would be needed to

establish whether DNA implicated or excluded the defendant. Zuber opined that, even if

the defendant was excluded, this fact would not overcome C.S.’s identification of the

defendant “unless a new profile from the sperm fraction showing a different assailant could

be determined.” Zuber concluded that the Orchid Cellmark testing results were not

sufficient to support a claim of actual innocence.

¶ 30 The record does not reveal whether the DNA testing results from Orchid Cellmark

were ever reviewed by any of the judges presiding over the defendant’s case. The purported

Orchid Cellmark records were, however, attached to several pro se pleadings filed by the

defendant. The Orchid Cellmark report dated June 26, 2009, indicated that C.S.’s

underwear and a bed sheet were tested for DNA. The defendant and C.S.’s boyfriend were

excluded as contributors to the “partial Y-STR profile” obtained from C.S.’s underwear.

For the bed sheet, a “partial Y-STR profile” was developed from both an “epithelial

fraction” and a “sperm fraction.” The epithelial fraction contained “a mixture of at least

two males.” The defendant could not be excluded as a contributor to the epithelial fraction,

but C.S.’s boyfriend was excluded. The defendant also could not be excluded as the

predominant contributor to the sperm fraction obtained from the bed sheet. C.S.’s boyfriend

was, however, excluded as a contributor. The report explained that, due to parental

15 inheritance of the Y chromosome, all males from the same male lineage are expected to

share the same “Y-STR profile.”

¶ 31 Next, Zuber addressed the defendant’s claim regarding C.S.’s impaired vision.

Zuber observed that no cross-examination regarding C.S.’s vision occurred at trial, and

whether C.S. had any vision deficiencies at the time of the attack was unknown. Zuber also

recognized that Judge Watt heard C.S.’s testimony and found her to be an “excellent”

witness. Zuber concluded that C.S.’s current need for corrective eyewear to drive was

insufficient to support a claim of actual innocence.

¶ 32 Finally, Zuber addressed the purported statement from C.S.’s daughter, Rachel

Gratias, on MySpace that potentially implicated a neighbor. Zuber presumed that Gratias’s

statement could not be authenticated. He also doubted that the alleged statements from

Gratias would “have been made on personal knowledge as opposed to hearsay” given

Gratias’s young age at the time of the attack. Zuber’s memorandum concluded that he had

considered all factors for actual innocence and did not believe that the evidence, even when

taken together, supported a claim of actual innocence.

¶ 33 On April 7, 2017, the defendant filed a response to Zuber’s amended motion to

withdraw, disputing Zuber’s assessment of Dr. Reich’s affidavit. The defendant also filed

a “Supplemental Postconviction Petition.” In his supplemental petition, defendant included

an allegation that his brother had corresponded with Gratias on MySpace and that she

implicated a neighbor, who allegedly watched Gratias and her sister play in the yard. The

defendant stated that the MySpace correspondence was given to Zuber and was no longer

in the defendant’s possession. The defendant stated that Zuber agreed to request an 16 affidavit from the defendant’s brother and “brief this issue.” Attached to his supplemental

postconviction petition, among other things, was a purported police report from the Jackson

County Sheriff’s Department dated November 13, 1993. This report stated that C.S. had a

daughter, “Rachel,” who was six years old and present in the home at the time of the attack.

¶ 34 On August 9, 2017, Judge Schwartz granted Zuber’s amended motion to withdraw.

Citing Kuehner, Judge Schwartz found that Zuber’s amended motion to withdraw and the

brief in support were “ ‘filed subsequent to a trial court’s affirmative decision to advance

the petition to the second stage’ ” and brought “ ‘to the trial court’s attention information

that was not apparent on the face of the pro se petition at the time such assessment was

made.’ ” Judge Schwartz then concluded that “[b]ased on a review of the information the

post-conviction petition of the defendant should be denied.”

¶ 35 On August 11, 2017, the defendant filed a “Motion to Bring Forth Exhibits Compel

the Appointment of Substitute Counsel and Schedule a Status Hearing.” The motion had

been placed in the mail on August 8, 2017, prior to Judge Schwartz’s decision to dismiss

the defendant’s pro se successive petition. In the defendant’s motion, he reasserted his

claim regarding his brother’s MySpace correspondence with Gratias and attached a copy

of the correspondence to the motion. Per the MySpace correspondence, defendant’s

brother, Ray Rokita, sent Gratias a message on December 23, 2008, asking if she ever lived

in Carbondale, Illinois. On March 31, 2009, Gratias responded that she had not lived in

Carbondale since she was five years old. Ray told Gratias he was trying to reach C.S. but

could not find her. Gratias responded that Ray must know who raped her mom, and Gratias

stated she “saw it.” Ray told Gratias that he was investigating what happened and “we 17 cannot find any D.N.A. [sic] that belongs to [F]red.” Gratias told Ray that she knew “what

the guy looks like.” Gratias also told Ray that the man used to watch Gratias and her sister

play outside, and that the man lived “beside” their trailer. She further stated, “[I] don’t

know why my sister and [I] went to testify but [I] failed school that year [I] went in a shock

[I] had to learn everything over.” When defendant’s brother asked Gratias for the

neighbor’s name, she responded “has [sic] anyone in your family was [sic] a police officer

that’s who lived there.” In the motion, the defendant requested that the trial court set the

defendant’s case for a status hearing and appoint new counsel. The trial court denied the

motion the same day it was filed. This appeal follows.

¶ 36 II. ANALYSIS

¶ 37 On appeal, the defendant claims that Zuber failed to provide reasonable assistance

of counsel because his amended motion to withdraw did not demonstrate that certain

postconviction claims made by the defendant were frivolous or patently without merit. The

defendant contends that Zuber could have amended the defendant’s pro se successive

petition to include the following claims. First, defendant submits that C.S.’s need for

corrective eyewear, the contradictory DNA evidence, and the MySpace correspondence,

taken together, support a claim of actual innocence. Defendant also argues that Zuber

should have amended the defendant’s pro se successive petition to include a claim that the

defendant’s aggravated criminal sexual assault convictions should be vacated because

residential burglary could not serve as the aggravating felony. The defendant requests that

we reverse the trial court’s order and remand this case for further second stage proceedings.

18 As an alternative remedy, defendant asks this to court remand defendant’s case for a

Krankel-like inquiry into the reasonableness of Zuber’s assistance.

¶ 38 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996))

provides a statutory remedy for criminal defendants claiming a substantial violation of their

constitutional rights and is not a substitute for a direct appeal. People v. Edwards, 2012 IL

111711, ¶ 21. Rather, proceedings under the Act are collateral proceedings which allow for

review of constitutional issues that were not, and could not have been, adjudicated on direct

appeal. People v. Ortiz, 235 Ill. 2d 319, 328 (2009). Thus, issues that were resolved on

direct appeal are barred by the doctrine of res judicata, and issues that could have been

raised, but were not, are forfeited. Id. Considering these principles and the language of the

Act, our supreme court has made it clear that only one postconviction proceeding is

contemplated under the Act. Edwards, 2012 IL 111711, ¶ 22. Nevertheless, the bar against

successive proceedings will be relaxed when the defendant establishes either “cause and

prejudice” for failure to raise a claim earlier or a fundamental miscarriage of justice based

on actual innocence. Id. ¶¶ 22-23.

¶ 39 Before a defendant may file a successive postconviction petition, the defendant must

obtain leave of court. People v. Jackson, 2015 IL App (3d) 130575, ¶ 13. A request for

leave to file a successive petition based on either cause and prejudice or actual innocence

is reviewed under a higher standard than that applicable to the first stage of an initial

postconviction petition, which only requires that the petition is not frivolous or patently

without merit. Edwards, 2012 IL 111711, ¶¶ 25-29; People v. Smith, 2014 IL 115946, ¶ 35.

At this stage, all well-pleaded allegations in the petition and supporting documentation that 19 are not positively rebutted by the record are to be taken as true. People v. Sanders, 2016 IL

118123, ¶¶ 42, 48. Accordingly, leave of court to file a successive postconviction petition

should be denied where, following a review of the defendant’s successive petition and

supporting documentation, the claims alleged by the defendant fail as a matter of law or

where the successive petition with supporting documentation is insufficient to justify

further proceedings. Smith, 2014 IL 115946, ¶ 35.

¶ 40 In the absence of a request by defendant for leave to file a successive petition, the

trial court may sua sponte consider whether the successive petition should be docketed for

second stage proceedings. Sanders, 2016 IL 118123, ¶ 28. Here, the defendant neither

requested, nor did Judge Grace specifically grant the defendant, leave to file a successive

petition. We may presume, however, that Judge Grace granted the defendant leave to file

the petition because Judge Grace reviewed defendant’s court file, appointed counsel, and

directed counsel to file any amended petition that might be appropriate. See People v.

Johnson, 2018 IL App (5th) 140486, ¶¶ 42-45. In Johnson, the trial court docked the

defendant’s initial postconviction petition for second stage proceedings and appointed

counsel without making a finding that the defendant’s petition stated the gist of a

constitutional claim. Id. ¶ 42.

¶ 41 If leave of court is granted, the successive petition is docketed for second stage

proceedings. Sanders, 2016 IL 118123, ¶¶ 25-28. In the second stage, the trial court may

appoint counsel to represent the defendant and make any amendments to the petition

deemed necessary. People v. Bailey, 2017 IL 121450, ¶ 18. In proceedings under the Act,

a defendant is only entitled to a “reasonable” level of assistance, which is lower than the 20 standard of assistance required under the federal and state constitutions. People v. Perry,

2017 IL App (1st) 150587, ¶ 26. To provide reasonable assistance, postconviction counsel

must comply with Rule 651(c), which imposes certain duties upon counsel. Johnson, 2018

IL App (5th) 140486, ¶ 25. Rule 651(c) requires that counsel consult with defendant to

ascertain the defendant’s contentions of deprivation of constitutional rights, examine the

record of proceedings at trial, and make any necessary amendments to the pro se petition

to ensure defendant’s contentions are adequately presented to the trial court. Ill. S. Ct. R.

651(c) (eff. Feb. 6, 2013). If a claim is frivolous or spurious, ethical obligations prevent

postconviction counsel from advancing such claims. Perry, 2017 IL App (1st) 150587,

¶ 26. Therefore, when postconviction counsel investigates the defendant’s claims and finds

them without merit, counsel may stand on the allegations in the pro se petition and inform

the trial court of the reason the pro se petition was not amended or move to withdraw. Id.

¶ 42 In the present case, Zuber did not file a certificate demonstrating compliance with

Rule 651(c). Zuber’s amended motion to withdraw, however, stated that Zuber consulted

with the defendant by phone and mail to ascertain the defendant’s postconviction claims

and examined the record to make any necessary amendments to the defendant’s pro se

successive petition. Zuber continued that, despite consultation with the defendant and

review of the record, Zuber was “unable to make any amendments to the pro se

[successive] petition that would be in compliance with the applicable law and allow

Attorney Zuber to file a certificate pursuant to Illinois Supreme Court Rule 651(c).” Zuber,

therefore, sought to withdraw as counsel.

21 ¶ 43 When postconviction counsel decides that he or she must withdraw following the

trial court’s action of docketing a defendant’s pro se petition for second stage proceedings,

counsel must meet certain requirements. After the trial court has advanced the petition to

the second stage, postconviction counsel’s task is not to second guess the trial court’s initial

assessment of defendant’s petition. Kuehner, 2015 IL 117695, ¶ 20. Rather, postconviction

counsel is to move the process forward by “cleaning up” and presenting defendant’s claims

to the court for adjudication. Id. Our supreme court recognized, however, that

postconviction counsel may discover “something that ethically would prohibit counsel

from actually presenting the defendant’s claims to the court.” Id. ¶ 21. In this instance,

postconviction counsel “bears the burden of demonstrating, with respect to each of the

defendant’s pro se claims, why the trial court’s initial assessment was incorrect.” Id.

¶ 44 The supreme court explained that, under these circumstances, a motion to withdraw

is essentially a motion to reconsider. Id. “[A] motion to withdraw filed subsequent to a trial

court’s affirmative decision to advance the petition to the second stage does not ask the

trial court to conduct its first-stage assessment a second time but rather seeks to bring to

the trial court’s attention information that was not apparent on the face of the pro se petition

at the time such assessment was made.” Id. When postconviction counsel files such a

motion, counsel “owes the trial court at least some explanation as to why, despite its

superficial virtue, the pro se petition is in fact frivolous or patently without merit, and

counsel owes this explanation with respect to each of the defendant’s pro se claims.”

(Emphasis in original.) Id. Therefore, the supreme court held:

22 “[W]here a pro se postconviction petition advances to the second stage on the basis

of an affirmative judicial determination that the petition is neither frivolous nor

patently without merit, appointed counsel’s motion to withdraw must contain at

least some explanation as to why all of the claims set forth in that petition are so

lacking in legal and factual support as to compel his or her withdrawal from the

case.” Id. ¶ 27.

¶ 45 Here, Zuber’s brief in support of his amended motion to withdraw offered an

explanation as to why he concluded that he could not amend defendant’s pro se successive

petition. Zuber also stated that he had considered the factors required for an actual

innocence claim. It is here that we note an important distinction between Kuehner and the

present case. In Kuehner, the reasoning in postconviction counsel’s motion to withdraw

was not challenged, as defendant does in this appeal. Rather, the supreme court in Kuehner

remanded the defendant’s case for further second stage proceedings because

postconviction counsel had failed to provide an explanation as to why one of defendant’s

several claims was frivolous or patently without merit. Id. ¶¶ 23-24. The supreme court

acknowledged that an explanation as to why the defendant’s claim was frivolous or patently

without merit may exist but declined to make that case for counsel as a court of review. Id.

¶ 24. The circumstances here are different because Zuber provided an explanation in

response to each of the defendant’s claims, and Judge Schwartz did not allow Zuber to

withdraw and dismiss the defendant’s case until after “a review of the information.”

¶ 46 Our analysis, therefore, does not stop at counsel’s motion to withdraw, as the court

did in Kuehner. Implicit in Kuehner’s holding “is a requirement that the postconviction 23 court must actually determine the petition is frivolous and patently without merit before

allowing counsel to withdraw.” Johnson, 2018 IL App (5th) 140486, ¶ 38. Where counsel’s

motion to withdraw provides an explanation as to each of the defendant’s claims, as

required by Kuehner, we must then evaluate counsel’s explanations together with the

merits of the defendant’s contentions. If the record demonstrates that counsel complied

with Rule 651(c) and the defendant’s postconviction claims are without merit, we may

uphold the trial court’s ruling. Greer, 212 Ill. 2d at 211-12. We review both counsel’s

compliance with Rule 651(c) and the trial court’s dismissal of a postconviction petition

without an evidentiary hearing de novo. People v. Moore, 2018 IL App (2d) 170120, ¶ 34.

¶ 47 The defendant argues that we should remand for further second stage proceedings

because his claims were not frivolous or patently without merit. A successive

postconviction petition, however, must satisfy the requirements of cause and prejudice or

actual innocence. Edwards, 2012 IL 111711, ¶¶ 22-23. Claims of cause and prejudice and

actual innocence are evaluated under a higher standard than the standard applicable to an

initial petition, which only requires that the petition is not frivolous or patently without

merit. Id. ¶¶ 25-29; Smith, 2014 IL 115946, ¶ 35. Consequently, we review defendant’s

contentions on appeal under this higher standard and not whether his claims were frivolous

or patently without merit.

¶ 48 The defendant first argues that Zuber could have amended defendant’s pro se

successive petition to make a claim of actual innocence supported by C.S.’s need for

corrective eyewear, the contradiction in DNA testing, and the MySpace correspondence

between the defendant’s brother and the victim’s daughter. A claim of actual innocence 24 requires evidence that is newly discovered, material and not cumulative, and of such a

conclusive character that it would probably change the result on retrial. Edwards, 2012 IL

111711, ¶ 32. Newly discovered evidence is evidence that was discovered after trial and

that could not have been discovered sooner through the exercise of due diligence. Coleman,

2013 IL 113307, ¶ 96. Evidence is material when it is relevant and probative to the

defendant’s innocence, and noncumulative when it adds to the evidence before the finder

of fact at trial. Id. Finally, the conclusive character element refers to evidence that would

probably lead to a different result when considered with the evidence presented at trial. Id.

The new evidence need not be entirely dispositive to alter the result on retrial. Id. ¶ 97.

Rather, the defendant must present evidence that places the evidence at trial in a different

light and undermines the court’s confidence in the judgment of guilt. Id. The conclusive

character element is the most important element of an actual innocence claim. Sanders,

2016 IL 118123, ¶ 47.

¶ 49 The defendant asserts that C.S.’s need of corrective eyewear supports a claim of

actual innocence. This claim was contained in defendant’s pro se successive petition and

supported by a letter from a private investigator indicating that C.S. is required to wear

corrective lenses for driving. In the brief supporting his motion to withdraw, Zuber

addressed this claim and noted that no cross-examination was conducted at trial concerning

C.S.’s vision. Zuber added that whether C.S. wore corrective lenses or had any deficiencies

that would have affected her ability to identify her attacker was unknown. Zuber also noted

that Judge Watt heard the victim’s testimony and found C.S. to be a credible witness. Zuber

25 concluded that C.S.’s need for corrective eyewear to drive would not be enough to sustain

an actual innocence claim.

¶ 50 Our review of the defendant’s claim and his supporting documentation leads this

court to the same conclusion. Taking all of the defendant’s assertions as true, his claim fails

as a matter of law. First, this evidence is not “new.” Identification was the predominant

issue in the defendant’s case. It stands to reason that evidence of any vision impairment

that C.S. may have had at the time of her attack could have been discovered through the

exercise of due diligence, or at least inquired into through cross-examination at trial.

Furthermore, this evidence is not so conclusive that it would likely lead to a different result

on retrial. As Zuber noted, Judge Watt had the opportunity to view the victim’s testimony

and found her credible. The evidence that C.S. is required to wear corrective lenses only

serves to impeach her credibility, which is generally insufficient to warrant a new trial. See

People v. Holtzman, 1 Ill. 2d 562, 568 (1953) (“Newly discovered evidence, the effect of

which is to discredit, contradict and impeach a witness, does not afford a basis for the

granting of a new trial.”); see also People v. Nolden, 91 Ill. App. 3d 532, 542 (1980)

(evidence that victim wore glasses for reading only served to possibly discredit the victim’s

identification testimony and did not afford a basis for granting a new trial). Thus, the

evidence that C.S. is required to wear corrective eyewear for driving does not meet the

standard for an actual innocence claim because it is neither new, nor so conclusive, that it

would probably change result on retrial.

¶ 51 The defendant next argues that Zuber could have amended defendant’s pro se

successive petition to include a claim of actual innocence based upon the DNA testing 26 results from Orchid Cellmark and Dr. Reich’s affidavit. In addressing this claim, Zuber

offered an analysis as to why he believed the DNA testing results from Orchid Cellmark

could not support a claim of actual innocence. Zuber also identified the specific factors

required to make an actual innocence claim. Zuber observed that, while the Orchid

Cellmark evidence would be considered new, the Orchid Cellmark report did not exclude

the defendant as a contributor to either the epithelial or sperm fraction from the bed sheet.

Zuber recognized that Dr. Reich’s affidavit called for additional DNA testing that would

establish whether DNA evidence implicated or excluded defendant. In analyzing this

portion of the claim, Zuber observed that any DNA evidence, including evidence that

specifically excluded the defendant, would still have to be weighed against the victim’s

identification of defendant at trial. Zuber concluded that the Orchid Cellmark report, which

did not exclude the defendant, could not support a claim of actual innocence.

¶ 52 The record supports Zuber’s contention. At trial, Judge Watt heard evidence that

defendant’s DNA profile could not be developed from the vaginal or rectal swabs tested

by the Illinois State Police crime lab. Metzger, who performed the DNA testing, testified

that he made no findings which eliminated defendant as a suspect. The posttrial Orchid

Cellmark testing eliminated the defendant as a contributor to the partial Y-STR profile

obtained from C.S.’s underwear. The defendant was not, however, eliminated from the

partial Y-STR profiles obtained from the epithelial and sperm fractions on the bed sheet.

Much like the DNA evidence at trial, the Orchid Cellmark findings neither specifically

inculpate, nor exculpate, the defendant. Furthermore, Dr. Reich’s affidavit does not assist

the defendant, either. The affidavit only implies that more testing could be done to 27 positively identify, or exclude, the defendant. Thus, the Orchid Cellmark DNA testing

results and Dr. Reich’s affidavit do not place the trial evidence in a different light that

undermines the court’s confidence in the judgment of guilt.

¶ 53 Finally, the defendant claims that the alleged correspondence between the

defendant’s brother, Ray, and the victim’s daughter, Gratias, evidenced on MySpace, is

evidence of the defendant’s actual innocence. According to the MySpace correspondence,

Gratias allegedly stated that her mother’s attacker used to watch Gratias and her sister play

outside and lived “beside” their trailer. The defendant argues that Gratias implicated a

neighbor, which supports the defendant’s actual innocence claim. In Zuber’s brief, he

expressed his belief that the conversation could not be authenticated. He also called into

question whether Gratias’s statement would have been made based on personal knowledge,

as opposed to hearsay. Zuber’s explanation as to why he could not amend this claim does

not address the required factors for an actual innocence claim. Nonetheless, as explained

hereafter, the MySpace evidence does not meet the required standard for actual innocence.

¶ 54 Much like the defendant’s claim regarding C.S.’s need of corrective lenses, the

MySpace evidence is not new. The record shows that Gratias was known to defendant and

his defense counsel, prior to trial. Attached to the defendant’s supplemental postconviction

petition, filed on April 17, 2017, was a purported police report from the Jackson County

Sheriff’s Department, dated November 13, 1993. This report stated that C.S. had a

daughter, “Rachel,” who was six years old and present in the home at the time of the attack.

The record does not show that Rachel was ever interviewed by the defense or called as a

witness to testify at trial. The record also does not show, nor does the defendant claim, that 28 Gratias was unavailable at the time of trial, or before trial. Any testimony relating to the

identification of C.S.’s assailant by Gratias could have been discovered through the

exercise of due diligence. Therefore, the purported MySpace correspondence does not

satisfy the requirement of newly discovered evidence to support a claim of actual

innocence.

¶ 55 Finally, the defendant contends that his pro se successive petition could have been

amended to include a claim that residential burglary could not be the aggravating felony to

support a conviction for aggravated criminal sexual assault. The defendant submits that the

State failed to prove him guilty of aggravated criminal sexual assault because the State did

not introduce evidence that any sexual assault occurred “during the course of” the

perpetrator’s entry into C.S.’s trailer.

¶ 56 In his pro se successive petition, the defendant argued that his convictions for

aggravated criminal sexual assault were void and should be vacated. The defendant also

argued that he could not be sentenced to an extended term on count III (aggravated criminal

sexual assault) based on a residential burglary. Zuber addressed these claims and noted that

this court had previously found the residential burglary was a “lesser included offense” for

aggravated criminal sexual assault because the burglary was an “enhancing factor.” Zuber

also stated how residential burglary may serve as the aggravating felony for a charge of

aggravated criminal sexual assault. In doing so, Zuber quoted the version of the residential

burglary statute as it existed at the time of his amended motion to withdraw. See 720 ILCS

5/19-3(a) (West 2014) (“A person commits residential burglary when he or she knowingly

and without authority enters or knowingly and without authority remains within the 29 dwelling place of another, or any part thereof, with the intent to commit therein a felony or

theft.”). Zuber continued by stating that the sexual assaults occurred while the perpetrator

remained within the dwelling and constituted a continuous act. Zuber also stated that the

trial judge specifically found the defendant’s actions were a single course of conduct.

¶ 57 Zuber’s analysis is improper in that he evaluated the defendant’s claim under the

incorrect version of the residential burglary statute. As it existed at the time of the

defendant’s trial, the statute did not contain the language “remains within” the dwelling

place of another. See 720 ILCS 5/19-3(a) (West 1992). As evidenced at the sentencing

hearing, Judge Watt stated that he believed “[t]he residential burglary was completed

shortly after the entry.”

¶ 58 On appeal, the defendant criticizes Zuber’s analysis and argues that an attorney

providing reasonable representation would have amended defendant’s pro se successive

petition to allege that the State failed to prove defendant guilty of aggravated criminal

sexual assault because the offenses did not occur “during the course of” the residential

burglary. A defendant commits aggravated criminal sexual assault when the criminal

sexual assault was perpetrated during the course of the commission or attempted

commission of any other felony. See id. § 12-14(a)(4). The defendant asserts that the

residential burglary was completed upon his entry into C.S.’s residence (see People v.

Maggette, 195 Ill. 2d 336, 353 (2001)) and, therefore, could not serve as the aggravating

felony for aggravated criminal sexual assault.

¶ 59 In making this argument, the defendant relies on our supreme court’s decision in

People v. Giraud, 2012 IL 113116. In Giraud, the defendant was charged with aggravated 30 criminal sexual assault. Id. ¶ 1. The charge was aggravated by the fact that the defendant

knew he was HIV positive and had forcible intercourse with the victim without wearing a

condom. Id. The supreme court reversed defendant’s conviction for aggravated criminal

sexual assault because the “mere” exposure to HIV during the commission of the sexual

assaults did not threaten or endanger the victim’s life. Id. ¶ 39. According to the court, the

defendant would had to have communicated to the victim at the time of the assault that he

was HIV positive. Id. ¶¶ 14-16. To endanger the victim’s life, the victim would have had

to actually be infected with HIV during the assault—the victim was never infected with

HIV. Id. ¶¶ 33-35. The defendant argues Giraud limits aggravating circumstances to only

those actions that occur “during the course of” the offense. Defendant’s reliance on Giraud

is misplaced.

¶ 60 To be considered an aggravating factor, the aggravating circumstance must occur at

the time of the commission of the offense or so close to its occurrence that the defendant’s

actions are an inseparable part of the offense. People v. Singleton, 217 Ill. App. 3d 675,

687 (1991). The defendant argues that Giraud imposes a stricter reading for the phrase

“during the course of” than Singleton. Under the defendant’s interpretation, a defendant’s

actions that occur close in time to the aggravated offense could not be considered an

aggravating factor. Giraud imposed no such reading of the statute. Rather, Giraud was

concerned with the fact that no threat was ever communicated during the offense, and the

victim’s life was not in fact endangered during the offense. Giraud, 2012 IL 113116, ¶ 39.

Therefore, we do not read Giraud as a limitation on Singleton’s pronouncement that an

aggravating circumstance may be close in time to the aggravated offense. 31 ¶ 61 The defendant’s case is more akin to People v. Colley, 188 Ill. App. 3d 817, 820

(1989). In Colley, the defendant entered the victim’s home at night and sexually assaulted

her in a bedroom. Id. at 818. The defendant demanded money, and when the victim refused,

the defendant struck the victim, threw her on the bed, and placed a pillow over her head.

Id. The defendant then ordered the victim to go downstairs, where the defendant cut the

victim with a knife. Id. at 818-19. On appeal, the defendant argued that the aggravating

factor, cutting the victim with a knife, occurred “too long after the sexual acts were

completed to be considered part of the same course of conduct.” Id. at 819-20. The

appellate court held that the aggravating circumstance, cutting the victim, was sufficiently

close in time so that it may be considered to have been committed “during the course of”

the sexual assault. Id. at 820.

¶ 62 Here, the defendant entered C.S.’s residence, ordered her into her bedroom, sexually

assaulted her multiple times, told C.S. her boyfriend owed the defendant money, and stole

money from a box on C.S.’s vanity. These actions occurred in a single course of conduct

and were only interrupted when defendant went to the daughters’ room to threaten them.

Thus, the residential burglary was sufficiently close in time to the sexual assaults to be

considered an aggravating factor. Although Zuber analyzed the defendant’s contentions

under the incorrect version of the statute, we find that Singleton and Colley support our

finding that the residential burglary was sufficiently close in time to the sexual assaults to

be considered an aggravating factor. Thus, remand for further second stage proceedings is

not warranted, as the defendant’s claim fails as a matter of law, and the defendant has not

32 shown that this claim can be brought under either the “cause and prejudice” or actual

innocence exceptions to the statutory bar against successive petitions.

¶ 63 In summary, we find Zuber did not fail to provide reasonable assistance of counsel,

and Judge Schwartz properly granted Zuber’s amended motion to withdraw and dismissed

the defendant’s case. The record shows that Zuber consulted with the defendant and

ascertained his contentions but determined he could not amend the defendant’s petition.

Zuber’s amended motion to withdraw and brief in support offered a sufficient explanation

as to why Zuber believed he could not amend the defendant’s pro se successive petition.

The record also demonstrates that the defendant’s purported actual innocence claims and

argument for vacating his aggravated criminal sexual assault convictions fail as a matter of

law.

¶ 64 As an alternative remedy, the defendant asks this court to remand his case for a

Krankel-like inquiry into whether Zuber provided unreasonable assistance of counsel.

Following the submission of defendant’s initial brief, however, the Illinois Supreme Court

held that the posttrial motion procedure created in Krankel did not extend to allegations of

unreasonable assistance by postconviction counsel. People v. Custer, 2019 IL 123339,

¶ 46. Accordingly, we deny the defendant’s request for remand.

¶ 65 For the foregoing reasons, the trial court’s order allowing Zuber to withdraw and

dismissing defendant’s pro se successive postconviction petition is affirmed.

¶ 66 Affirmed.