People v. Russ

2022 IL App (5th) 190240-U

• Court: Appellate Court of Illinois
• Decided: February 1, 2022
• Docket: 5-19-0240
• Status: Unpublished

Opinion

NOTICE 2022 IL App (5th) 190240-U NOTICE Decision filed 02/01/22. The This order was filed under text of this decision may be NO. 5-19-0240 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed 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, ) Saline County. ) v. ) No. 08-CF-274 ) CARL D. RUSS, ) Honorable ) Cord Z. Wittig, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.

ORDER

¶1 Held: The postconviction court did not err in dismissing the defendant’s amended petition for postconviction relief at the second stage of proceedings. The defendant failed to make a substantial showing of a constitutional violation of his right to effective assistance of appellate counsel.

¶2 The defendant appeals the trial court’s dismissal of his amended petition for

postconviction relief at the second stage of postconviction proceedings. The defendant

claims that his amended petition made a substantial showing of a constitutional violation.

In support of this argument, the defendant argues that appellate counsel provided

ineffective assistance of counsel because appellate counsel failed to raise a claim of

1 ineffective assistance by defendant’s trial counsel. For the following reasons, we affirm the

trial court’s judgment.

¶3 BACKGROUND

¶4 On September 17, 2008, the defendant was charged with one count of criminal

sexual assault (720 ILCS 5/12-13(a)(3) (West 2008)) and one count of aggravated criminal

sexual abuse (720 ILCS 5/12-16(b) (West 2008)). On December 19, 2008, the State filed

an amended information charging the defendant with 2 additional counts of criminal sexual

assault and 22 additional counts of aggravated criminal sexual abuse. The State alleged

throughout the charges that the defendant had sexually abused his stepson between June

25, 2008, and September 9, 2008.

¶5 On December 22, 2008, the defendant entered a plea of guilty pursuant to an

agreement negotiated with the State. The defendant agreed to plead guilty to one count of

criminal sexual assault, count III of the amended information. In exchange for his plea to

count III, the remaining charges were nol-prossed, 1 and the State recommended a sentence

of 12 years in the Illinois Department of Corrections (IDOC). The defendant also agreed

to waive his right to appeal and signed a document titled, “Waiver of Appeal.” This

document indicated that if a motion to withdraw the guilty plea was allowed, then “upon

the request of the State any charges that may have been dismissed as a part of a plea

agreement would be reinstated and would also be set for trial.” While admonishing the

defendant regarding his waiver of appeal, the trial court advised the defendant that if the

1 Nolle prosequi is a Latin term which means “not to wish to prosecute.” Black’s Law Dictionary (11th ed. 2019). The term is often shortened to “nolle.” Black’s Law Dictionary (11th ed. 2019). 2 trial court granted a motion to withdraw the defendant’s plea of guilty, “then we would

have a trial on this count, and all of the other counts that were nolle’d would be reinstated.”

The trial court subsequently accepted the defendant’s plea to count III and sentenced the

defendant to 12 years in IDOC, followed by 2 years of mandatory supervised release. The

remaining charges were nol-prossed.

¶6 On January 16, 2009, the defendant filed a pro se motion to withdraw his guilty

plea, alleging that he received ineffective assistance of counsel. New counsel was

appointed for the defendant, and his trial counsel filed a supplement to the defendant’s

motion. During a hearing on the motion, the following colloquy occurred between the

defendant and his counsel:

“Q. Okay. What did you think was going to happen to all those other charges,

the other 25?

A. They would come back up. If I went to trial?

Q. Yes.

A. They would probably be brought back up.”

When the State cross-examined the defendant, the following exchange occurred:

“Q. Now, Mr. Russ, you understand if your plea of guilty is withdrawn that

all of these—

A. I want to go to trial.

Q. —all of these—

A. I don’t care.

Q. —charges come back? 3 A. I don’t care. This is my life.

***

Q. And you understand that a total of—

A. Twenty-six.

Q. —26—

A. —twenty-five more charges you brought back and I’m ready for them.

Q. —counts of aggravated criminal sexual assault you will be facing?

A. I don’t care. I want to face them. I want to face them. I’ve been in

Harrisburg all my life and I ain’t never been in trouble. Prove me guilty. In the name

of Jesus prove me guilty.”

Following the hearing, the trial court denied the defendant’s motion to withdraw his guilty

plea. The defendant appealed.

¶7 On appeal, this court held that the two years of mandatory supervised release

imposed by the trial court was not authorized by the statute, rendering the defendant’s plea

of guilty and sentence void. This court vacated the defendant’s plea and sentence and

remanded the case for further proceedings. See People v. Russ, No. 5-09-0569 (2011)

(unpublished order under Illinois Supreme Court Rule 23).

¶8 On remand, the defendant elected to proceed to a jury trial. The record does not

show that the State refiled the nol-prossed charges or filed a motion seeking to reinstate

the charges.

¶9 On May 13, 2011, the State filed a “Motion to Allow Testimony Via Closed Circuit

Television Pursuant to 725 ILCS 5/106B-5.” Therein, the State asserted that “the offenses 4 charged are three counts of Criminal Sexual Assault and 23 counts of Aggravated Criminal

Sexual abuse [sic].” At a hearing on this motion, the defendant’s trial counsel

acknowledged that he had reviewed the State’s motion which contained the reference to

additional counts.

¶ 10 On August 24, 2011, the defendant’s jury trial commenced. Prior to jury selection,

the trial court informed the venire that the State had filed an information against the

defendant which contained 26 counts. The trial court then read each count set forth in the

amended information to the jury. During the evidentiary portion of the defendant’s trial,

the State presented evidence on all of the counts in the information. The defendant’s

counsel cross-examined all but one witness. After the close of the State’s evidence, the

defendant’s counsel moved for a directed verdict. Defendant’s counsel stated that “we have

26 counts pled here” and argued that the State’s evidence was insufficient to support a

conviction for all counts. The defendant did not present any evidence. The jury found the

defendant guilty of all 26 counts. A summary of the evidence presented at the defendant’s

trial can be found in our prior disposition, People v. Russ, 2016 IL App (5th) 140362-U.

¶ 11 On August 29, 2011, the defendant’s counsel filed a posttrial motion for a new trial.

In this motion, defense counsel renewed the defendant’s motion to suppress statements;

renewed the defendant’s motion for a directed verdict made at trial; and renewed his

objections at trial based upon hearsay, foundation, and relevance.

¶ 12 On September 21, 2011, the defendant filed a pro se motion for a new trial alleging,

inter alia, that he had been denied effective assistance of counsel. The defendant claimed

that his trial counsel never discussed the discovery materials with the defendant and failed 5 to investigate and present favorable evidence, including two medical reports. The

defendant also claimed that defense counsel did not call 16 witnesses at trial, which

included some witnesses that had testified for the State. The defendant further alleged that

defense counsel failed to effectively cross-examine witnesses; failed to object to the State’s

evidence; and “suggested” that the defendant not testify, despite his wish to do so.

¶ 13 On November 1, 2011, while the defendant’s posttrial motions were pending, the

trial court held a sentencing hearing. The trial court sentenced the defendant to three

consecutive 13-year terms of imprisonment on the three criminal sexual assault

convictions. Additionally, the defendant was sentenced to five years’ imprisonment on

each of the aggravated criminal sexual abuse convictions, to be served concurrently with

each other and with the three sentences for the criminal sexual assault convictions.

¶ 14 On February 14, 2012, following a hearing, the trial court denied the defendant’s

motion for new trial. The trial court did not inquire into, or rule on, the defendant’s pro se

claims of ineffective assistance of counsel.

¶ 15 The defendant appealed his convictions, claiming that the trial court failed to

conduct a preliminary inquiry into his pro se posttrial claims of ineffective assistance of

counsel, as required by People v. Krankel, 102 Ill. 2d 181 (1984). The State conceded error,

and we remanded the case back to the trial court for the limited purpose of conducting a

preliminary inquiry into the defendant’s pro se claims of ineffective assistance of counsel.

See People v. Russ, No. 5-12-0236 (2014) (unpublished summary order under Illinois

Supreme Court Rule 23(c)).

6 ¶ 16 On July 1, 2014, the trial court held a hearing to conduct a preliminary inquiry into

the defendant’s allegations of ineffective assistance of trial counsel. On July 3, 2014, the

trial court denied the defendant’s pro se motion for a new trial, finding that his claims of

ineffective assistance of counsel lacked merit and pertained to matters of trial strategy. The

defendant appealed.

¶ 17 The defendant’s sole contention on appeal was whether the trial court erred in

denying his pro se posttrial motion for a new trial because he raised a nonspurious claim

alleging that defendant’s counsel possibly neglected his case. This court affirmed the trial

court’s judgment. See Russ, 2016 IL App (5th) 140362-U.

¶ 18 In June 2016, the defendant began inquiring about whether the State had refiled the

nol-prossed charges. The defendant sent a letter to the clerk of the circuit court asking

whether the defendant had been indicted between March 4, 2011, and August 24, 2011.

The defendant subsequently requested that the state’s attorney’s office provide him with,

inter alia, “[a]ny and all documents relating to Indictments or Information of charges

between January 2009 through August 2011 in regards to this case.” The state’s attorney’s

office responded to the defendant’s request and indicated that no such documents existed.

¶ 19 On August 29, 2016, the defendant filed a petition for relief from judgment pursuant

to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2016)).

The defendant alleged that his convictions for counts I, II, and IV through XXVI were void

because the trial court lacked subject matter jurisdiction and that the defendant’s rights to

due process and a fair trial had been violated. The defendant argued that counts I, II, and

IV through XXVI had been previously dismissed and were not reinstated. The defendant 7 attached a copy of his plea of guilty form, his letter to the state’s attorney’s office, and the

response received from the state’s attorney’s office. On October 17, 2016, the defendant

filed a second petition for relief from judgment pursuant to section 2-1401(f), raising the

same arguments. The State filed a motion to dismiss.

¶ 20 On March 1, 2017, the trial court entered an order dismissing the defendant’s

petition for relief from judgment as untimely. The trial court also found that if the court

had lost jurisdiction over the counts that had been nol-prossed, the defendant revested the

court with jurisdiction over these counts by actively participating in the proceedings. The

defendant appealed but subsequently moved to dismiss the appeal. This court granted the

defendant’s motion to dismiss the appeal, and the appeal was dismissed.

¶ 21 On June 5, 2017, the defendant filed a pro se postconviction petition. The

defendant’s pro se petition was advanced to the second stage, and new counsel was

subsequently appointed to represent the defendant. On December 26, 2018, postconviction

counsel filed an amended petition for postconviction relief. The amended petition alleged

that the defendant was convicted of uncharged criminal offenses because counts I, II, and

IV though XXVI of the amended information had been dismissed and were never

reinstated. The defendant argued that the defendant’s trial counsel was ineffective for

failing to raise this issue in any proceeding. The defendant further argued that appellate

counsel was ineffective for failing to raise the issue in the direct appeal of the defendant’s

trial.

¶ 22 On March 4, 2019, the State filed a motion to dismiss the defendant’s amended

petition. On May 8, 2019, the trial court held a hearing on the State’s motion to dismiss. 8 Following the hearing, the trial court entered an order dismissing the defendant’s amended

petition at the second stage of the postconviction proceedings.

¶ 23 In its order of dismissal, the trial court found that the defendant waived his

postconviction claims of ineffective assistance of counsel and that the claims were barred

by the doctrine of res judicata. The trial court further determined that the defendant’s

postconviction petition failed to make a substantial showing of a constitutional violation.

The trial court agreed that the record did not show that the State formally requested that

counts I, II, and IV through XXVI be reinstated. Nevertheless, the trial court concluded

that the defendant had not made a substantial showing of a constitutional violation and

offered three reasons for its determination. First, the trial court found that when this court

ruled that the defendant’s plea and sentence were void and remanded the case for further

proceedings, the defendant’s case returned to the same status it occupied prior to the plea.

Simply put, it was as if the plea had never occurred. Next, the trial court found that it

ultimately had jurisdiction “of all justiciable matters brought before it” which was

unaffected by the defendant’s plea, the appeal, and the remand for further proceedings.

Finally, the trial court found that even if the court had lost jurisdiction, the defendant

revested the court with jurisdiction by actively participating in the proceedings. The trial

court stated that the defendant’s conduct established that he intended to withdraw his plea

of guilty on count III and proceed to a jury trial on all counts. The trial court determined

that “[n]othing trial counsel did or failed to do prejudiced Defendant.”

¶ 24 Regarding the defendant’s claim of ineffective assistance of appellate counsel, the

trial court found that the defendant did not make a substantial showing of ineffective 9 assistance of counsel. The trial court explained that because it had found that trial counsel

was not ineffective, appellate counsel was, likewise, not objectively unreasonable for

failing to raise issues in the defendant’s direct appeal. This appeal followed.

¶ 25 ANALYSIS

¶ 26 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) sets

forth a procedural mechanism by which a criminal defendant may claim that their

conviction was the result of a substantial denial of their rights under the federal or state

constitutions, or both. 725 ILCS 5/122-1(a) (West 2018). The Act provides a three-stage

process for the adjudication of postconviction petitions. People v. English, 2013 IL 112890,

¶ 23.

¶ 27 At the first stage, the trial court independently reviews a defendant’s petition to

determine whether the petition is frivolous or patently without merit. 725 ILCS 5/122-

2.1(a)(2) (West 2018). If the petition is not dismissed at the first stage, it advances to the

second stage, where the court may appoint counsel for an indigent defendant (725 ILCS

5/122-4 (West 2018)), and the State may either answer the petition or file a motion to

dismiss (725 ILCS 5/122-5 (West 2018)). At the second stage, the trial court must

determine whether the petition and any accompanying documentation make a substantial

showing of a constitutional violation. People v. Tate, 2012 IL 112214, ¶ 10. If the petition

makes no such showing, the petition is dismissed. Tate, 2012 IL 112214, ¶ 10. If the

petition makes such a showing, however, the petition proceeds to the third stage, where the

trial court may hold an evidentiary hearing. 725 ILCS 5/122-6 (West 2018).

10 ¶ 28 Here, the defendant’s petition was dismissed at the second stage of proceedings. At

this stage, the trial court does not engage in fact-finding or credibility determinations but

examines the postconviction petition to determine its legal sufficiency. People v. Dupree,

2018 IL 122307, ¶ 29. Any allegations not affirmatively refuted by the record must be

taken as true. Dupree, 2018 IL 122307, ¶ 29. Review of the dismissal of a postconviction

petition at the second stage is de novo. Dupree, 2018 IL 122307, ¶ 29. In reviewing the

trial court’s judgment, we may affirm on any basis supported by the record. People v.

Green, 2012 IL App (4th) 101034, ¶ 30.

¶ 29 The defendant contends that the trial court erred in dismissing the defendant’s

amended petition at the second stage because his petition made a substantial showing that

appellate counsel provided ineffective assistance of counsel. In determining whether

counsel was ineffective, we apply the two-pronged test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must demonstrate that

counsel’s performance was deficient, and that the defendant suffered prejudice as a result

of the alleged deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001). To establish that

counsel’s performance was deficient, a defendant must show that counsel’s performance

fell below an objective standard of reasonableness. Edwards, 195 Ill. 2d at 162. To

establish prejudice, a defendant must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the outcome of the proceedings would have been

different. Edwards, 195 Ill. 2d at 163. A reasonable probability is a probability sufficient

to undermine confidence in the result of the proceedings. Edwards, 195 Ill. 2d at 163.

Because a defendant’s failure to satisfy either prong of the Strickland test will defeat a 11 claim of ineffective assistance of counsel, reviewing courts are not required to consider

whether counsel’s performance was deficient before determining whether a defendant was

prejudiced as a result of the alleged deficiencies. Edwards, 195 Ill. 2d at 163.

¶ 30 Claims of ineffective assistance of appellate counsel are governed by the same

standard as claims of ineffective assistance of trial counsel. Edwards, 195 Ill. 2d at 163.

Appellate counsel is not required to raise every conceivable issue on appeal, and it is not

incompetence for counsel to refrain from raising issues that counsel believes are without

merit. Edwards, 195 Ill. 2d at 163-64. Thus, unless the underlying claim is meritorious, a

defendant has suffered no prejudice from counsel’s failure to raise the particular claim on

appeal. Edwards, 195 Ill. 2d at 164.

¶ 31 Here, the defendant alleges that appellate counsel was ineffective for failing to claim

in his direct appeal that his trial counsel’s performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced the defendant. The defendant

also alleges ineffective assistance by his trial counsel for counsel’s failure to object to the

defendant being prosecuted for 25 charges that had been previously nol-prossed by the

State. The defendant further argues that because of trial counsel’s ineffective assistance,

the defendant’s due process rights were violated. Initially, we consider the defendant’s

claim that the defendant’s trial counsel provided ineffective assistance of counsel.

¶ 32 The Illinois Constitution provides that no person shall be held to answer for a crime

punishable by death or imprisonment unless the charge has been brought by grand jury

indictment or pursuant to a preliminary hearing. Ill. Const. 1970, art. I, § 7. A defendant

has a fundamental due process right to notice of the charges brought against him. People 12 v. Clark, 2016 IL 118845, ¶ 47. The purpose of this procedural process is to afford the

accused protection against surprise, unfairness, and inadequate preparation. People v.

Stafford, 325 Ill. App. 3d 1069, 1074 (2001).

¶ 33 Here, the defendant was charged by amended information with 3 counts of criminal

sexual assault and 23 counts of aggravated criminal sexual abuse. In exchange for his plea

of guilty to count III of the amended information, the State agreed to nol-pros the remaining

charges. A nolle prosequi is a formal entry of record by the State which indicates its

unwillingness to prosecute a charge. People v. Hughes, 2012 IL 112817, ¶ 22. The State

may enter a nolle prosequi as to an entire charging document, or as to one or more counts.

Hughes, 2012 IL 112817, ¶ 22.

¶ 34 A nolle prosequi is not an acquittal of the underlying conduct that served as the

basis for the original charge. Hughes, 2012 IL 112817, ¶ 23. Rather, it leaves the matter in

the same condition as before the prosecution commenced. Hughes, 2012 IL 112817, ¶ 23.

Thus, if a nolle prosequi is entered before jeopardy attaches, the State may prosecute the

defendant again, subject to other relevant statutory or constitutional defenses and absent a

showing of harassment, bad faith, or fundamental unfairness. Hughes, 2012 IL 112817,

¶ 23. Procedurally, the State may either refile the nol-prossed charges or request that the

trial court vacate the previous nolle prosequi order and reinstate the charges. Hughes, 2012

IL 112817, ¶¶ 25-26.

¶ 35 In this case, after the entry of the nolle prosequi pursuant to the plea agreement, the

defendant moved to withdraw his plea of guilty. On appeal from the trial court’s denial of

the defendant’s motion to withdraw his plea of guilty, this court found that the defendant’s 13 plea and sentence were void, and the case was remanded for further proceedings. At this

point, the State was free to refile or seek reinstatement of the nol-prossed charges. The

State did not do so. Nevertheless, the State proceeded to try the defendant on count III as

well as all of the nol-prossed charges. At the time of the prosecution, the defendant did not

object to a trial on all of the charges.

¶ 36 The defendant argues that trial counsel was ineffective for failing to object to the

State’s prosecution of the 25 nol-prossed offenses. He likens his case to People v. Stafford,

which involved the direct appeal of a defendant’s convictions. The defendant in Stafford

claimed that his due process rights were violated in that he was required to defend himself

against charges that had been previously nol-prossed and never reinstated. Stafford, 325

Ill. App. 3d at 1073. In contrast, this case involves a postconviction proceeding where we

are asked to determine whether the defendant received ineffective assistance of appellate

counsel for failing to raise a claim of ineffective assistance of trial counsel.

¶ 37 In Stafford, the defendant was indicted by a grand jury with two counts of first

degree murder, five counts of attempted first degree murder, and five counts of aggravated

discharge of a firearm. Stafford, 325 Ill. App. 3d at 1070. Before proceeding to trial, the

State nol-prossed all of the counts except for the two counts of first degree murder. Stafford,

325 Ill. App. 3d at 1070. The defendant was convicted of first degree murder, but the

appellate court reversed for a new trial. Stafford, 325 Ill. App. 3d at 1070. On the date of

the retrial, the State informed the trial court that it would be proceeding on the two first

degree murder counts and the five attempted murder counts that had previously been nol-

prossed. Stafford, 325 Ill. App. 3d at 1071. The defendant filed a motion to dismiss the 14 attempted murder counts. Stafford, 325 Ill. App. 3d at 1071. The defendant argued that

because he had not been reindicted on the five charges of attempted murder, the State was

legally precluded from proceeding to trial against the defendant on those counts. Stafford,

325 Ill. App. 3d at 1071. The State countered with a request that the attempted murder

charges be reinstated. Stafford, 325 Ill. App. 3d at 1071. The defendant responded by

arguing that oral motions to reinstate were not permissible. Stafford, 325 Ill. App. 3d at

1071. The trial court denied the defendant’s motion to dismiss and allowed the State to

proceed on the attempted murder charges. Stafford, 325 Ill. App. 3d at 1071.

¶ 38 On appeal, the appellate court held that the State was required to file new charges

of attempted murder after it initially nol-prossed those charges. 2 Stafford, 325 Ill. App. 3d

at 1073. The appellate court concluded that the State’s action in prosecuting the defendant

for the attempted murder charges at the defendant’s second trial was improper, and that the

trial court erred in allowing the State to proceed as if those charges were legally in

existence. Stafford, 325 Ill. App. 3d at 1074. The appellate court noted that until the day of

jury selection, the defendant and his trial counsel were unaware that the State intended

prosecute the defendant for the charges of attempted murder. Stafford, 325 Ill. App. 3d at

1074. The appellate court further noted that the defendant did not expect to be prosecuted

on those charges at trial because they had been nol-prossed three years earlier. Stafford,

325 Ill. App. 3d at 1074. Thus, the Stafford court questioned whether the defendant had

2 We note that the Stafford decision predates our supreme court’s decision in Hughes, which held that the State may also seek to vacate the nolle prosequi order and reinstate the charges. Hughes, 2012 IL 112817, ¶¶ 25-26. 15 notice that the State intended to prosecute him on the attempted murder charges and

determined that the defendant was unaware of the State’s intention until the day of trial.

The appellate court concluded that the defendant was unfairly forced to defend himself

against charges that were not pending against him at the time of his jury trial. Stafford, 325

Ill. App. 3d at 1074. Consequently, the appellate court held that defendant’s constitutional

rights were violated. Stafford, 325 Ill. App. 3d at 1074.

¶ 39 Stafford is distinguishable from the present case. Unlike Stafford, where the

attempted murder charges were nol-prossed prior to the defendant’s first trial, the defendant

here entered into a negotiated plea agreement whereby the State agreed to nol-pros 25

charges in exchange for the defendant’s plea of guilty to count III of the amended

information. During the defendant’s plea hearing, the trial court advised the defendant that

if the court were to grant a motion to withdraw the guilty plea, a trial would be held on

count III and all of the other counts that were nol-prossed would be reinstated. The “Waiver

of Appeal” signed by the defendant indicated that if a motion to withdraw the guilty plea

was allowed, then upon the State’s request, any charges that were nol-prossed as a part of

the plea agreement would be reinstated and set for trial. Finally, during the hearing on the

defendant’s motion to withdraw his guilty plea, the defendant’s testimony demonstrated

that he anticipated the State would prosecute him on all 26 counts charged in the amended

information if his plea of guilty was withdrawn. Indeed, the defendant testified that he was

“ready for them” and “want[ed] to face them.” Unlike Stafford, the defendant here was not

surprised by the State’s actions.

16 ¶ 40 We acknowledge the fact that the State did not refile or seek reinstatement of the

nol-prossed charges after this court vacated the defendant’s plea and sentence on direct

appeal. The State did, however, indicate in its “Motion to Allow Testimony Via Closed

Circuit Television Pursuant to 725 ILCS 5/106B-5” that the defendant was charged with 3

counts of criminal sexual assault and 23 counts of aggravated criminal sexual abuse. The

defendant’s trial counsel stated that he had reviewed this motion. On the first day of the

defendant’s trial, the trial court read all 26 charges contained in the amended information.

Defendant’s counsel actively participated on his client’s behalf at trial, including cross-

examining witnesses. After the close of the State’s evidence, defendant’s counsel moved

for a directed verdict as to all counts and stated that “we have 26 counts pled here.”

¶ 41 Thus, the due process concerns of notice and unfair surprise that formed the basis

of the Stafford decision are not present in this case. The record shows that although the

State did not refile or seek to reinstate the nol-prossed charges, the State clearly intended

to prosecute the defendant on all 26 charges set forth in the amended information. Indeed,

the State’s decision to nol-pros the charges was conditioned upon the defendant’s plea of

guilty to count III. The record also shows that both the defendant and his counsel were

aware of the State’s intent to prosecute the defendant for the nol-prossed charges.

Defendant’s trial counsel did not request a continuance of the trial, claim surprise, state he

was unprepared, or indicate in any way that proceeding to trial on count III as well as the

nol-prossed counts would result in surprise or unfairness.

¶ 42 After reviewing the record, we find that the defendant has not established the

prejudice element required by Strickland to show that defendant’s trial counsel provided 17 ineffective assistance. Under Strickland, the defendant must show that “but for” his trial

counsel’s failure to object to his prosecution on the nol-prossed charges, there is a

reasonable probability that the outcome of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the result of

the proceedings. Edwards, 195 Ill. 2d at 163. Under the circumstances presented here, we

do not believe the defendant has made a showing that he was prejudiced by trial counsel’s

failure to object to prosecution on the 25 uncharged offenses. The defendant’s bare

assertion that trial counsel’s failure to object violated the defendant’s due process rights

and caused him to suffer prejudice is insufficient to make a showing of prejudice under

Strickland.

¶ 43 Moreover, the defendant cannot show that the outcome of the proceedings would

have been different had his trial counsel objected to the State going forward on the counts

that had previously been nol-prossed. As discussed above, the record shows that the

defendant had notice of the State’s intent to prosecute him for the nol-prossed charges. Had

defense counsel objected, the State could simply have asked the trial court to reinstate the

charges. Additionally, the record clearly reveals that the defendant was not surprised or

unprepared to defend himself at trial. Therefore, the defendant’s claim that his trial counsel

was ineffective would have lacked merit.

¶ 44 Because the defendant has not shown that his trial counsel’s failure to object to the

prosecution on the additional counts prejudiced the defendant under the Strickland

analysis, he cannot establish that appellate counsel provided ineffective assistance.

Appellate counsel is under no obligation to raise claims that lack merit. Therefore, the 18 defendant has failed to make a substantial showing of a constitutional violation at the

second stage of the postconviction proceedings, and the trial court did not err in dismissing

the defendant’s amended petition.

¶ 45 Finally, we note that the defendant does not challenge the trial court’s jurisdiction

during the trial of this case. We believe it is important, however, to point out that the State’s

failure to refile the nol-prossed charges or seek to vacate the nolle prosequi and reinstate

the charges did not affect the power of the trial court to preside over the defendant’s trial

and render a judgment. See Hughes, 2012 IL 112817, ¶ 30 (concluding that the failure to

refile the charging instrument or seek to vacate and reinstate a nol-prossed charge, based

on the same offense as previously charged in the indictment, did not affect the power of

the trial court to hear and render a judgment on the defendant’s plea of guilty to the nol-

prossed charge).

¶ 46 For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 47 Affirmed.