2022 IL App (2d) 200242-U No. 2-20-0242 Order filed May 2, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 09-CF-2815 ) RYAN A. SCHILLER, ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Trial court did not err in denying the defendant’s postconviction petition following an evidentiary hearing.
¶2 This is the third time that defendant Ryan Schiller’s case is before us. In his first appeal,
this court affirmed the defendant’s conviction for first degree murder. People v. Schiller, 2012 IL
App (2d) 110677-U (unpub. order dated Dec. 19, 2012) (Schiller I). In his second appeal, we
remanded for second stage proceedings on his postconviction petition. People v. Schiller, 2016 IL
App (2d) 140307-U (unpub. order dated June 27, 2016) (Schiller II). In this appeal, the defendant 2022 IL App (2d) 200242-U
argues that the circuit court of Winnebago County erred in denying his postconviction petition
following an evidentiary hearing. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 The facts of this case have already been set forth in considerable detail in both Schiller I
and Schiller II. We therefore include only those facts necessary to an understanding of this appeal.
¶5 The defendant caused the victim’s death by asphyxia by placing his knee on the victim’s
back while she was face-down on a bed. According to the statement the defendant gave to police,
in the early morning hours of September 4, 2009, he and the victim (who was very drunk) were
fighting, and he held her down on her bed in order to keep her from striking him, not intending to
kill her. When she stopped struggling and he released her, she fell onto her back. He attempted
mouth-to-mouth resuscitation and CPR. When he could not resuscitate her, he arranged her on the
bed and pulled the sheet up. He did not think she was alive when he left.
¶6 The forensic pathologist who performed the autopsy, Dr. Larry Blum, testified that, based
upon the bruising on the victim and other indicators, the victim suffocated because she could not
breathe when a heavy weight was placed on her chest, and her mouth and nose were partially or
wholly blocked. The toxicology reports showed that the victim's blood alcohol level at the time
of death was .276. Dr. Blum also commented that it was a somewhat unusual method by which to
intentionally cause death; in his 31 years of practice, he had not seen a similar intentional killing.
¶7 Various other witnesses testified regarding times when they had seen the defendant and the
victim together, and the nature of their relationship. The victim’s mother, Diane Reed, testified
that when the two attended a concert with her a week before the victim's death, the victim appeared
upset and was crying at one point. On the bus ride home, the two were squished together, sleeping.
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¶8 A co-worker, Paula Schwarz, testified that when the two came into a bar a couple of days
before the victim’s death, they were not getting along. At one point, the defendant covered the
victim’s mouth with his hand to keep her quiet and the victim pushed his hand away from her
mouth; the defendant then said, “I'll kill you.” (Schwarz did not mention this when she gave a
statement to the police six days later.) After the two left the bar, Schwarz saw the defendant push
the victim on the back of the neck to get her into their car.
¶9 Elizabeth Kolosa, the victim’s roommate, testified that the victim had said she did not want
to see the defendant and was going out with other friends on the evening of September 3, 2009.
The victim and the defendant had a “rocky” relationship and fought (though “not to a great extent”)
but seemed to care for each other.
¶ 10 Melissa Sadler, who identified herself as one of the victim’s best friends, said that she had
been at the victim’s apartment for most of the night on September 3, 2009. The defendant let
himself in shortly before 4 a.m. and went into the victim’s bedroom. Sadler saw him trying to
wake the victim up and heard the victim make a moaning noise. Later, when she returned to
retrieve her cell phone, she saw the defendant still sitting on the side of the victim’s bed, trying to
wake her. Sadler thought the victim was still alive at that point. The defendant was not acting in
a violent manner.
¶ 11 The victim was discovered dead in her bed more than 24 hours later, on the morning of
September 5, 2009. Her eyes were open and deep purple. Her face was bruised and there was dried
blood near her nose. Her right wrist was bruised and swollen. She was lying on her back and the
sheet was pulled up to her waist or chest. Her head was on a pillow, and the TV in the room was
on. A bloody t-shirt with the victim's blood on it was found in the trash outside her apartment. A
vaginal swab taken from the victim contained human DNA matching the defendant’s DNA.
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¶ 12 The defendant did not testify at trial, and the defense called no witnesses. Instead, the
defense argued that the evidence showed that the relationship between the defendant and the victim
was good, if uneven: the defendant had a key to the victim’s apartment; they had sex; and Kolosa
testified that the victim would probably call the defendant after a night of drinking. Defense
counsel noted that the defendant told police that the victim had started fighting with him—hitting,
kicking, and biting him—and argued that he was defending himself. Thus, he argued, the trial
court should find the defendant not guilty. The defense also argued that the State had not proven
the mental state necessary for first degree murder and at most had shown recklessness.
Accordingly, if the trial court found him guilty of anything, it should be involuntary manslaughter.
¶ 13 The trial court found the defendant guilty of first degree murder, finding that he knew that
his acts created a strong probability of death or great bodily harm: “[e]ven young children are
aware that placing an object such as a pillow over the face of someone can cause them to
suffocate,” and there was a mark on the back of the victim’s neck indicating that she had been held
down. The trial court rejected the defendant’s assertion of self-defense. There was no evidence
as to how the fight started except for the defendant’s statement, which lacked credibility. The trial
court stated that it was “obvious” that the defendant was lying in his statement to the police and
that his “credibility varie[d] between slim and none.” Further, to the extent that there were any
injuries to the defendant, the trial court found that they were caused when the victim was reacting
to being held down and was “fighting for her life.” The trial court also noted the victim’s height
and weight and commented that, based on the court’s observation of the defendant, he was “clearly
taller and heavier than she was.”
¶ 14 Of particular relevance to this appeal, the trial court then stated:
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“Now it’s appropriate to examine the defendant’s claim of self-defense. *** The only
evidence of self-defense in this case is the statement of the defendant. He said, I acted in
self-defense. Not in those words but I’m paraphrasing what he said. This may not have
been argued to the Court as a matter of trial strategy and I completely understand that, but
obviously the issue has been posed to the Court and the Court needs to deal with it.”
After analyzing the evidence presented above, the trial court then concluded:
“The Court does not find that the injuries and death of Amanda Reed were the result of
factors outlined in 720 ILCS 9–2(a)(1) and (2)” (factors that would support a finding of
second degree murder rather than first degree), as “neither of those facts [was] present in
this case.”
¶ 15 Following his conviction, the defendant moved for a new trial, arguing once again that the
most he could be convicted of was involuntary manslaughter. After a hearing, the trial court denied
the motion and sentenced the defendant to 28 years’ imprisonment. On December 19, 2012, this
court affirmed the defendant’s conviction and sentence. Schiller I, 2012 IL App (2d) 110677-U,
¶ 2.
¶ 16 On December 23, 2013, the clerk of the circuit court of Winnebago County received and
file-stamped three documents from the defendant. In one of the documents, the defendant
requested that the “Charge of 1st Degree Murder” be modified to a “Charge of 2nd Degree
Murder.” The defendant asserted that his conviction should be reduced to second degree murder
because he was acting under a sudden and intense passion resulting from serious provocation when
the victim died. In the event the trial court declined his request, the defendant requested that his
document be treated as a postconviction petition.
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¶ 17 In a second document he filed, the defendant specifically referred to it as a postconviction
petition. In that document, he did not request that his conviction for first degree murder be reduced
to second degree murder.
¶ 18 In the third document, he asserted that he had requested that his attorney “put up the 2nd
degree grounds” and present an argument that the defendant “was provoked into sudden intense
passion by [the] person killed.” He did not request that this document be construed as a
postconviction petition.
¶ 19 On March 14, 2014, the trial court dismissed the defendant’s postconviction petition as
frivolous and patently without merit under the first stage of the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122–1 et seq. (West 2012)). The trial court rejected all the arguments that the
defendant had raised in the document he had described as his postconviction petition. The trial
court did not address the arguments in the documents that had been filed simultaneously with the
¶ 20 On appeal, this court vacated the trial court’s judgment and remanded for additional
proceedings. We explained that under the Act, the trial court should have considered all the
arguments that the defendant had raised in documents he referred to as his postconviction petition,
even though arguments were raised in multiple documents. Schiller II, 2016 IL App (2d) 140307-
U, ¶¶ 26-29.
¶ 21 Following this court’s remand, the defendant retained post-conviction counsel who filed
an amended postconviction petition which raised again the defendant’s claim that trial counsel was
ineffective for failing to argue that the defendant’s conduct constituted second degree murder
based on sudden provocation. Additionally, postconviction counsel added a claim that trial
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counsel was ineffective for failing to consider retaining an expert to challenge the testimony of Dr.
Blum regarding the cause of the victim’s death.
¶ 22 The trial court advanced the defendant’s postconviction petition to the third stage of the
Act for an evidentiary hearing. At the hearing, Bradley Schreiber testified that he was one of the
defendant’s attorneys at trial. The other counsel, Joseph Polito, had since died. Schreiber recalled
that he and Polito had met with Dr. Blum for several hours prior to trial. Schreiber recalled that
Dr. Blum opined that the defendant did not intentionally cause the victim’s death, and Schreiber
characterized Dr. Blum’s assessment as “extremely helpful” to the defendant’s case. Schreiber
and Polito believed that they had discredited many of the witnesses, “[a]nd really all the State had
in [his] opinion was Blum.” Schreiber testified that Polito had some other expert witnesses
available, but asserted that after their discussions with Dr. Blum, and “[a]s a matter of trial
strategy,” he and Polito “thought it was in [the defendant’s] best interest to let the State put on the
forensic pathologist and he was going to carry our day which we believe he did.”
¶ 23 With respect to the defendant’s claim that trial counsel was ineffective for failing to argue
second degree murder at trial, Schreiber testified that he did not recall the issue being discussed.
He further testified that, based on Blum’s testimony, he believed that there would be a finding of
not guilty or involuntary manslaughter.
¶ 24 The defendant testified his attorneys told him that Blum was “basically our expert because
of what he said.” He denied having any discussions with his attorneys about retaining an expert
on his behalf. As to second degree murder, the defendant testified that he and his attorneys
discussed that on numerous occasions and disagreed with how to proceed. He wanted to put all
the available charges on the table, but they refused to listen to him. They insisted, “It’s their trial.
Let them fight it.”
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¶ 25 Following the evidentiary hearing, postconviction counsel filed a brief in support of the
petition, but only argued one of the claims presented at the hearing—that trial counsel was
ineffective for failing to consult with an expert regarding Dr. Blum’s findings as to the cause of
the victim’s death. Counsel argued that trial counsel’s failure to consult with an expert was
objectively unreasonable because only a qualified expert could determine the validity of Dr.
Blum’s opinion, and the decision to rely on Dr. Blum was therefore not the product of proper pre-
trial investigation.
¶ 26 In its response, the State argued that trial counsel’s decision not to retain an expert other
than Dr. Blum was a matter of trial strategy. The State further asserted that this claim should be
rejected because the defendant had not presented any evidence as to what a different expert would
testify to. The State also stated that trial counsel’s decision not to argue second degree murder at
trial was also trial strategy. The State maintained that arguing second degree murder would be
inconsistent with trial counsel’s strategy that the defendant was not consciously aware that his
actions were practically certain to cause the victim’s death, or alternatively, that the defendant’s
actions at most evinced recklessness.
¶ 27 In his reply brief, postconviction counsel withdrew the ineffective assistance claim for
second degree murder. Postconviction counsel explained that the State’s argument that the trial
counsel’s decision on that issue was a matter of trial strategy was meritorious. Postconviction
counsel maintained, however, that trial counsel was ineffective for not consulting with another
expert as trial counsel’s failure led to a breakdown of the adversarial process as it prevented trial
counsel from effectively cross-examining Dr. Blum.
¶ 28 After hearing arguments, the trial court denied the defendant any postconviction relief. The
trial court explained that it found both Schreiber and the defendant to be credible witnesses. The
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trial court found that trial counsel’s decision not to retain a different expert was not objectively
unreasonable and constituted trial strategy. Further, the defendant could not demonstrate any
prejudice because there was nothing in the record to show that another pathologist would have
given an opinion that would have been more helpful to the defendant than Dr. Blum’s.
¶ 29 Following the trial court’s ruling, the defendant filed a timely notice of appeal.
¶ 30 II. ANALYSIS
¶ 31 The defendant first argues on appeal that he wanted the trial court to consider whether he
was guilty of second degree murder rather than first degree murder. He therefore contends that he
was deprived of both the effective assistance of trial counsel and postconviction counsel when trial
counsel failed to raise this issue at trial and postconviction counsel withdrew the issue from
consideration following the evidentiary hearing on his postconviction petition. Further, he argues
the trial court erred in allowing postconviction counsel to withdraw his claim where counsel did
not demonstrate that the claim lacked merit.
¶ 32 The Act provides a means by which a defendant may challenge his conviction or sentence
for violations of federal or state constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183
(2005). To be entitled to postconviction relief, a defendant must show that he has suffered a
substantial deprivation of his federal or state constitutional rights in the proceedings that produced
the conviction or sentence being challenged. Id.
¶ 33 The Act provides for postconviction proceedings that may consist of as many as three
stages. At the first stage, the circuit court has 90 days to review a petition and may summarily
dismiss it if the court finds it is frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2)
(West 2012). If the petition is not dismissed within that 90-day period, the circuit court must
docket it for further consideration. Id. § 2.1(b).
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¶ 34 At the second stage of postconviction proceedings, counsel may be appointed for
defendant, if defendant is indigent. Id. § 4. Counsel’s duties, pursuant to Rule 651(c) (Ill. S. Ct.
R. 651 (c) (eff. July 1, 2017)), include consultation with the defendant to ascertain his contentions
of deprivation of constitutional right, examination of the record of the proceedings at the trial, and
amendment of the petition, if necessary, to ensure that defendant’s contentions are adequately
presented. Fulfillment of the third obligation does not require counsel to advance frivolous or
spurious claims on defendant’s behalf. People v. Greer, 212 Ill.2d 192, 205 (2004). Moreover,
“[p]ost-conviction counsel is only required to investigate and properly present the petitioner’s
claims.” People v. Pendleton, 223 Ill. 2d 458, 471 (2006). We note that a defendant in
postconviction proceedings is entitled to only a “reasonable” level of assistance, which is less than
that afforded by the federal or state constitutions. People v. Munson, 206 Ill. 2d 104, 137 (2002).
¶ 35 After counsel has made any necessary amendments to the petition, the State may move to
dismiss a petition or an amended petition pending before the court. 725 ILCS 5/122-5 (West
2012). If that motion is denied, or if no motion to dismiss is filed, the State must answer the
petition, and, barring the allowance of further pleadings by the court, the proceeding then advances
to the third stage, a hearing wherein the defendant may present evidence in support of the petition.
Id. § 6.
¶ 36 Throughout the second and third stages of a postconviction proceeding, the defendant bears
the burden of making a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d at
471. At the second stage of proceedings, all well-pleaded facts that are not positively rebutted by
the trial record are to be taken as true, and, in the event the circuit court dismisses the petition at
that stage, we generally review the circuit court’s decision using a de novo standard. People v.
Childress, 191 Ill. 2d 168, 174 (2000). When a petition is advanced to a third-stage evidentiary
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hearing, where fact-finding and credibility determinations are involved, we will not reverse a
circuit court’s decision unless it is manifestly erroneous. Id. If no such determinations are
necessary at third stage, i.e., no new evidence is presented and the issues presented are pure
questions of law, we will apply a de novo standard of review, unless the judge presiding over
postconviction proceedings has some “special expertise or familiarity” with the trial or sentencing
of the defendant and that “familiarity” has some bearing upon disposition of the postconviction
petition. See People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).
¶ 37 Claims of ineffective assistance of counsel are resolved under the standard 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 such deficient performance substantially
prejudiced the defendant. Id. To demonstrate performance deficiency, a defendant must establish
that counsel’s performance fell below an objective standard of reasonableness. People v. Edwards,
195 Ill. 2d 142, 163 (2001). To show sufficient prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. If a case can be disposed of on the
ground of lack of sufficient prejudice, the court need not consider the quality of the attorney’s
performance. Id. at 697.
¶ 38 The defendant argues that the evidence supported a request that the trial court consider
second degree murder as a lesser mitigated offense under a theory that he acted in imperfect self
defense or under sudden provocation. 720 ILCS 5/9-2(a)(1)-(2), (b) (West 2008). For second
degree murder based on imperfect self defense, a defendant must show by a preponderance of
evidence that at the time of the killing, he believed the circumstances to justify his use of force
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under section 7-1(a) of the Criminal Code of 1961 (720 ILCS 5/7-1(a) (West 2008)), but that his
belief was unreasonable. Id. § 9-2(a)(2). For second degree murder based on serious provocation,
the defendant must show by a preponderance of the evidence that, “[a]t the time of the killing he
[was] acting under a sudden and intense passion resulting from serious provocation by the
individual killed or another whom the offender endeavors to kill, but he negligently or accidentally
cause[d] the death of the individual killed.” Id. § 9-2(a)(1), (c). “Serious provocation” is defined
as “conduct sufficient to excite an intense passion in a reasonable person.” Id. § 9-2(b). A
defendant is entitled to a second degree instruction if he presents some evidence warranting such
an instruction. People v. Washington, 2012 IL 110283, ¶ 25.
¶ 39 Here, the defendant suffered no prejudice due to his trial counsel’s failure to request that
the trial court consider second degree murder as an alternative to finding the defendant guilty of
first degree murder. That is because the trial court specifically considered whether the defendant
acted in self defense and found that neither of the grounds to reduce the defendant’s conviction
from first degree murder to second degree murder—imperfect self defense or provocation—were
present. As such, the defendant was not deprived of the effective assistance of counsel on this
issue. Strickland, 466 U.S. at 697. For this same reason, his postconviction counsel did not
provide unreasonable assistance on this issue either. People v. Hotwagner, 2015 IL App (5th)
130525, ¶ 37. Further, as the issue had no merit, the trial court did not err in allowing
postconviction counsel to withdraw the issue following the evidentiary hearing.
¶ 40 In so ruling, we reject the defendant’s insistence that the trial court misstated the record in
finding that he did not act in self defense. Specifically, the defendant asserts that in referring only
to his statement as evidence that he acted in self defense, the trial court overlooked that testimony
from both Dr. Blum and the victim’s roommate that also supported a finding that he was acting in
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self defense. We do not believe that the trial court mischaracterized the evidence. As we observed
in Schiller I, the defendant and the victim were the only witnesses to their fatal altercation. Schiller
I , 2016 IL App (2d) 140307-U, ¶ 34. As the victim obviously could not testify, the trial court’s
comment that the “only evidence” that the defendant acted in self defense was the defendant’s
statement was a fair characterization of the record.
¶ 41 The defendant next asserts that the trial court incorrectly stated that trial counsel did not
argue that the defendant acted in self defense. Although the trial court did say that, it then went
on to discuss whether the defendant had acted in self defense. The defendant was not prejudiced
by the trial court’s comments about whether self defense had been raised as a defense.
¶ 42 Lastly, the defendant argues that the trial court’s citation to the second degree murder
statute by itself does not indicate that it really considered finding the defendant guilty of second
degree murder as an alternative to first degree murder. The defendant contends that the trial court’s
comments indicate that it misapprehended the law as it did not consider the relationship between
self defense and imperfect self defense. Specifically, the defendant asserts that the trial court’s
comments improperly indicate that he could not be found guilty of second degree murder if he was
not found to have acted in self defense.
¶ 43 As the defendant acknowledges, a trial court is presumed to know the law. People v.
Virella, 256 Ill. App. 3d 635, 638 (1993). The trial court’s explicit reference to the second degree
murder statute is therefore compelling evidence that it considered and rejected finding the
defendant guilty of second degree murder. None of the trial court’s comments support a different
conclusion. In examining the evidence, the trial court found that the defendant’s statement that he
acted in self defense was not credible. Thus, there was no probative evidence supporting imperfect
self defense. The trial court’s comments also reflect that it considered and rejected serious
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provocation, as it found that the victim did not start the fight and the injuries the defendant suffered
were because the victim was fighting for her life. Based on these findings, it is clear that trial court
did not misapprehend the law when it determined the second degree murder statute was not
applicable to the defendant’s case.
¶ 44 The defendant’s second contention on appeal is that his postconviction counsel provided
unreasonable assistance in regard to advancing the claim that trial counsel was ineffective for
failing to consult or retain another expert to challenge Dr. Blum’s findings. Specifically, the
defendant argues that postconviction counsel was ineffective because (1) his Rule 651(c)
certificate rebuts any claim he actually read the transcripts; and (2) he failed to support his
argument at the evidentiary hearing with any expert testimony.
¶ 45 As set forth earlier, Rule 651(c) governs the duties of postconviction counsel. Ill. S. Ct. R.
651(c) (eff. July 1, 2017). We recently held that Rule 651(c) does not apply once a postconviction
petition has been advanced to the third stage. People v. Pabello, 2019 IL App (2d) 170867, ¶ 27;
see also People v. Knight, 2020 IL App (1st) 170550, ¶ 38 (same); People v. Zareski, 2017 IL App
(1st) 150836, ¶ 59 (Rule 651(c) applies only to duties undertaken at the second stage). Thus, as
the defendant’s postconviction petition advanced to a third stage hearing, his postconviction
counsel’s alleged failure to comply with Rule 651(c) is not a basis to determine that postconviction
counsel rendered unreasonable assistance. Pabello, 2019 IL App (2d) 170867, ¶ 27. Further,
although the defendant urges us to depart from our decision in Pabello, we decline to do so.
¶ 46 We also do not believe that postconviction counsel’s failure to support his argument at the
evidentiary hearing with expert testimony demonstrates that he provided unreasonable assistance.
At the hearing, postconviction counsel questioned trial counsel Schreiber about why the defense
chose to rely only on Dr. Blum’s testimony. Schreiber explained that after he and Polito conferred
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with Dr. Blum, they believed that his testimony that the defendant had not intentionally killed the
victim would be “extremely help[ful]” to the defendant’s case. They believed that they could not
get a better witness than Dr. Blum. It was therefore the defense’s trial strategy to rely exclusively
on Dr. Blum’s expert testimony.
¶ 47 At the close of the hearing, the trial court determined trial counsel’s decision not to pursue
a different expert was a matter of trial strategy and did not prejudice the defendant. We agree with
that assessment. As such, even if postconviction counsel had presented additional expert testimony
at the evidentiary hearing, that does not change the fact that trial counsel had a legitimate reason
to rely solely at trial on the State’s expert, Dr. Blum. As trial counsel’s representation on this
matter was not ineffective, we cannot say that postconviction counsel’s representation was
unreasonable for failing to do more to support a meritless claim. See Hotwagner, 2015 IL App
(5th) 130525, ¶ 37.
¶ 48 Accordingly, as the defendant’s postconviction petition lacked merit, the trial court’s denial
of that petition was not manifestly erroneous. See Childress, 191 Ill. 2d at 174.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 51 Affirmed.
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