People v. Caldwell , 2023 IL App (1st) 201375-U ( 2023 )

2023 IL App (1st) 201375-UNo. 1-20-1375
FIRST DIVISION
May 1, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 06 CR 18227
)
CHRISTOPHER CALDWELL, )
) The Honorable
Defendant-Appellant. ) Angela Petrone,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court.
Justice Coghlan concurred in the judgment.
Justice Hyman dissented.
ORDER
¶1 Held: We affirm the circuit court’s judgment granting the State’s motion to dismiss and dismissing
defendant’s postconviction petition over defendant’s contention that: (1) he received ineffective
assistance of trial and appellate counsels related to the failure to request a jury instruction on the
lesser-included offense of reckless conduct; (2) ineffective assistance of appellate counsel for the
failure to challenge the excessive nature of his 30-year prison sentence; and (3) unreasonable
assistance of postconviction counsel for failing to amend his postconviction petitions.
¶2 On appeal from the second-stage dismissal of his amended petition for postconviction relief,
defendant, Christopher Caldwell, argues that the postconviction court erred in granting the State’s
1-20-1375
motion to dismiss where: (1) he was denied effective assistance of trial counsel for failing to
request a jury instruction on the lesser-included offense of reckless conduct, and ineffective
assistance of appellate counsel for failing to raise this issue on direct appeal; and (2) he was denied
effective assistance of appellate counsel for failing to challenge defendant’s 30-year sentence as
excessive; and (3) unreasonable assistance of postconviction counsel for failing to shape
defendant’s contentions into proper legal form. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Defendant was charged with attempt first degree murder of a peace officer, attempt first degree
murder and aggravated battery with a firearm for the shooting of Chicago Police Officer Thomas
Sweeney, which occurred on July 11, 2006. The evidence at the jury trial is summarized below,
relevant to the issues on appeal, but is more thoroughly recounted in our Rule 23 order on direct
appeal, People v. Christopher Caldwell, 1-10-0483 (2012) (unpublished order pursuant to Illinois
Supreme Court Rule 23).
¶5 Prior to trial, defendant filed a motion to suppress his statements on the grounds that he was
intoxicated at the time of his arrest. Finding that the officer’s testimony was credible, and
defendant’s testimony was not credible, the Honorable Angela Petrone denied defendant’s motion
to suppress statements. At the subsequent jury trial, the State presented the testimony of Officer
Thomas Sweeney. He testified that on July 10-11, 2016, he and another officer were on patrol in
a marked police car and dressed in police uniform. At approximately 12:30 a.m., the officers
received a radio call of a “man with a gun” at the bus stop at the corner of 51st and King Drive,
Chicago, Illinois. When they arrived, they did not see anyone there. As they continued to patrol
the area, they received a second radio call of a “man with a gun” at the same bus stop. The male
-2-
1-20-1375
was described as a black male wearing a white shirt and blue jeans. Upon arriving at the bus stop,
Officer Sweeney saw defendant, who matched that description.
¶6 The officers approached defendant, getting as close as ten feet away before Officer Sweeney
exited his marked police car. Officer Sweeney instructed defendant to place their hands on the
hood of the police car because he believed that he may have been armed. Defendant did not comply
with the officer’s request and instead, immediately grabbed his waistband and ran. Officer
Sweeney pursued defendant on foot and lost sight of him briefly when defendant turned the corner,
but clearly saw defendant’s face in good lighting.
¶7 After the police squad car approached defendant from the other direction, defendant changed
directions and started running southbound towards Officer Sweeney. At this point, defendant was
on the street and Officer Sweeney was on the sidewalk. Defendant then ran towards the entrance
to a large apartment building with a courtyard. There was a gate at the entrance with a 60-foot-
long brick tunnel that led to the courtyard. Officer Sweeney tried to grab defendant with his right
hand, holding his service weapon in his left hand. Defendant slipped away and ran to the front of
the gate. Officer Sweeney testified that, “At that point, [defendant] stopped in the corner, raised
his left hand and kept his right hand down while holding a weapon.” Officer Sweeney, standing
five to six away, described the weapon as a small handgun.
¶8 Officer Sweeney had his service weapon pointed at defendant, looked him directly in the eyes,
and ordered him to drop the handgun. Defendant did not drop his weapon and, instead, fled through
the gate. Officer Sweeney took a couple steps and then stopped because he was concerned about
his safety in the tunnel. At that point, defendant “turned and pointed the weapon” at Officer
Sweeney. Facing the officer, defendant twice fired his weapon at him. Officer Sweeney felt an
impact, described as a pinching sensation, on the lower right portion of his back. He took cover
-3-
1-20-1375
behind the outer wall of the brick tunnel before returning fire at defendant. He fired three gunshots
towards defendant as defendant continued to run away from the officer, holding his weapon in his
hand. Officer Sweeney met up with his partner and then both officers returned to the squad car to
continue searching for defendant.
¶9 Officer Sweeney later examined the area where he felt the pinching sensation and saw that the
skin in that area was red and there were two holes in his outer bullet-proof vest. He was
subsequently taken to the hospital for medical treatment and released later that night. At about
4:30 a.m. on July 12, 2006, Officer Sweeney identified defendant as the shooter in a physical
lineup at the police station. He also identified security video from the apartment building, in which
he and defendant could be seen during the pursuit and shooting but did not “reflect the shooting
actually firing” the handgun.
¶ 10 Passion Payne and Monika St. Clair testified that they are cousins and in 2006 were living in
a third-floor unit in the apartment complex in question. During the evening of July 11, 2006, they
were in the apartment with Andrew Webb when they heard a knock at the back door of the unit.
Payne went to the door and, finding that it was defendant, whom she knew from the neighborhood,
she let him in. Payne “could tell he probably was drinking.” Defendant went to the living room
with Webb while Payne went to St. Clair’s bedroom to watch television. Sometime later, Payne
and St. Clair heard knocking again, and St. Clair admitted another resident of the building that she
and Payne knew only as Robert. The police then came to both the front and back doors of the unit.
Payne saw the police removing defendant from the unit. Payne was brought to the police station,
where she was interviewed.
¶ 11 Andrew Webb testified that he knew defendant since childhood. He was sleeping on the living
room sofa at St. Clair’s apartment when he heard loud popping noises outside. A short time later,
-4-
1-20-1375
he heard people talking outside the unit’s back door and then saw defendant outside the door on
the porch. Payne let defendant into the apartment. At one point, he saw defendant walk in the
direction of the two bedrooms in the apartment. Then, several police officers entered the unit and
searched it. Webb was arrested and taken to the police station. He denied telling the police that
defendant ran into the apartment, breathing heavily, and put a gun in a garbage can outside the
unit. He testified that he signed a handwritten statement because the detectives threatened to charge
him as an accomplice if he did not sign it. He further testified that he had not been provided food
or drink even though he told the ASA who took his handwritten statement, that he had been
provided these items. He also denied that he was allowed to make corrections to his statement.
¶ 12 Assistant State’s Attorney Emily Leuin (ASA Leuin) read Webb’s handwritten statement into
the trial record. In it, Webb explained that sometime after midnight, he heard three to five gunshots
outside, then defendant appeared at the apartment door about a minute later. Defendant entered the
unit, went to the windows, and then said “it went down” as he rubbed his hands on his pants. Webb
took this statement to mean that defendant was involved in the shooting he had just heard.
Defendant told Webb to keep looking outside for the police while defendant paced between the
rear of the unit and the living room. Upon learning that the police were outside the apartment,
defendant told Webb that he needed to “get rid of the gun” and then went to one of the rear
bedrooms where he dropped the gun out a window into a garbage can. The police came to the
apartment approximately one hour later, and defendant remained in the apartment during this time.
Webb identified a particular gun as the one he saw defendant dispose of on the night in question.
¶ 13 After waiving his Miranda rights, defendant provided a handwritten statement to ASA Leuin,
who read defendant’s statement into the trial record. In it, defendant explained that he and some
other men had an argument in the early morning of July 11, after which they threatened to return.
-5-
1-20-1375
Believing they would return armed with a weapon; defendant obtained a gun before coming back
to the area. While he was at the bus stop, a police car stopped, and the officers called defendant
over to them. He fled, and one of the officers pursued him on foot. Defendant had his gun in one
hand as he fled, and he fired two shots behind him to discourage the officer from his pursuit and
to get away from the officer. He stated that when he fired the shot, he “knew that [the officer] was
right there by the gangway…” Defendant continued his flight to the home of Monika St. Clair, a
friend, where he flushed the two shell casings down a toilet and threw the gun out a window into
a garbage can before he was arrested.
¶ 14 Detective Michael Jackson testified that he was searching the crime scene when he found a
handgun in a garbage can at approximately 1:47 a.m. Officer Robert Bartlett testified that he and
fellow officers went to the apartment overlooking the garbage can. When Officer Bartlett knocked
on the door of St. Clair’s third-floor apartment, a woman admitted them. The officers detained
several people in the living room and searched the apartment. Detective Patrick Thelen testified
that when he saw defendant in St. Clair’s apartment, he believed that he fit the description of the
shooter and placed him under arrest. Detective Thomas Benoit testified that he conducted a lineup
at the police station during which Officer Sweeney identified defendant as the shooter.
¶ 15 Officer John Adams testified that he guarded the garbage can until the forensic investigator
arrived, during which time he saw the gun inside the can. Police forensic investigator Joseph
Dunigan testified that he examined and photographed the crime scene at the apartment building on
the morning of the shooting. He removed and inventoried a gun from a garbage can. Four of the
gun’s six chambers were loaded and two were empty; that is, neither contained an unfired bullet
nor a spent casing. Later, Investigator Dunigan performed a gunshot residue test upon defendant.
-6-
1-20-1375
He also separately bagged and inventoried defendant’s white shirt and Officer Sweeney’s armored
vest, and he took swabs for DNA testing from the recovered gun.
¶ 16 Forensic biologists Karlee Kane and Lauren Schubert of the state crime laboratory testified
that Kane prepared the DNA swabs, from the recovered gun, for testing and Schubert conducted
the DNA testing of two swabs against a sample from defendant. Both swabs had DNA from three
persons, and defendant was excluded as a source for one swab but could not be excluded as a
source for the other swab. For the swab where defendant was not excluded, one in 24 unrelated
black persons (or one in 99 unrelated white persons, or one in 72 unrelated Hispanic persons) could
similarly not be excluded as a source.
¶ 17 The parties stipulated that forensic chemist Mary Wong of the state crime laboratory tested the
samples and found no gunshot residue. Wong concluded that defendant either “may not have
discharged a firearm with either hand” or “the particles were removed by activity, were not
deposited or were not detected by the procedures” and would explain that “running, rubbing [or]
washing are all methods” for removing such residue. The parties also stipulated that no useable
fingerprints were found on the gun or the four cartridges it contained.
¶ 18 Defendant testified that he did not shoot at Officer Sweeney and was sleeping at St. Clair’s
apartment at the time of the shooting. He denied fleeing from the police or having a gun on July
10-11. He testified that the person seen in the security video was not him, but someone dressed
like he had been that night, in jeans and a white shirt.
¶ 19 He testified that he was awakened by police officers who arrested him, took his white shirt,
and took him to the police station. There, he was placed in a lineup. When detectives tried to
question him after the lineup, he requested counsel. A detective told him that he would look like a
cold-blooded killer if he asked for an attorney. He was provided food and drink, which he did not
-7-
1-20-1375
consume, but was not permitted to use the telephone. Questioning, including threats and insulting
language, continued periodically despite his request for counsel. ASA Leuin visited him at some
point, asked him for basic biological information, then returned about an hour later with a
statement for him to sign. He was told that he could face attempted murder and 20 years’
imprisonment if he did not cooperate, but aggravated battery charges and five years’ imprisonment
if he did. He signed the statement without being allowed to read the statement or make any
corrections, and after it was suggested that “it would be better in the long run for me” if he signed.
He further denied that he initialed the statement.
¶ 20 In rebuttal, ASA Leuin denied that she, or anyone in her presence, told defendant that, if he
did not confess, requesting counsel would make him seem to be a cold-blooded killer. She denied
leaving the interview room during the interview, and specifically denied briefly asking him for
basic biological information before leaving the room. She was alone with him briefly so she could
“make sure he was comfortable talking” without the officers present. ASA Leuin reiterated that
she wrote out and reviewed defendant’s statement in his presence, that both she and defendant
signed each page, and that defendant and either herself or one of the detectives initialed each
correction in her presence. Defendant did not request counsel in her presence, and he did not tell
her that he had previously requested counsel, that the detectives had “badgered [him] so he
wouldn’t get a lawyer,” or that he signed the statement to receive one year of imprisonment for
aggravated battery rather than 20 years’ for attempt murder.
¶ 21 The jury found defendant not guilty of attempt first degree murder of a peace officer and guilty
of aggravated battery with a firearm. Prior to sentencing, trial counsel moved to withdraw as
counsel explaining to the trial court that he had received a fax from defendant raising claims of
ineffective assistance of counsel. After the State objected to the motion to withdraw, the trial court
-8-
1-20-1375
inquired in open court of defendant as to the substance of his claims of ineffective assistance of
counsel.
¶ 22 One of defendant’s claims was that his trial counsel should have requested a jury instruction
on the lesser-included offenses of reckless discharge and reckless conduct. Defendant stated that
he asked his trial counsel about these offenses, and trial counsel “kind of just shrugged me off, like
just brushed it past me.” Defendant then stated that defense counsel “said he was gonna file for a
lesser included instruction, but the next day he didn’t file for one…” In response, trial counsel
stated that defendant did not ask him to include a lesser-include offense instruction, but “[i]t was
a possible strategy leading up to the final days that that be included, but the decision was made not
to include it.” The trial court rejected all of defendant’s claims of ineffective assistance of trial
counsel and also denied counsel’s motion to withdraw. Subsequently, the trial court sentenced
defendant to 30 years’ imprisonment for aggravated battery with a firearm.
¶ 23 Direct Appeal
¶ 24 Defendant challenged his conviction on direct appeal on the grounds that the trial court erred
in denying his motion to suppress his custodial statement because he had invoked his right to
counsel and did not reinitiate conversation with the police before making the statement, and the
evidence did not prove him guilty of aggravated battery with a firearm. On April 26, 2012,
defendant’s conviction was affirmed on appeal in an unpublished order. People v. Christopher
Caldwell, 1-10-0483 (2012) (unpublished order pursuant to Illinois Supreme Court Rule 23).
¶ 25 Postconviction Proceedings
¶ 26 On April 23, 2013, defendant filed a pro se postconviction petition. In that petition, he argued,
inter alia, that: (1) he was denied a fair trial when the trial court denied his request for jury
instructions on the lesser-included offense of reckless conduct, along with an allegation that his
-9-
1-20-1375
trial counsel and the trial court erroneously advised him that an instruction on reckless conduct
would be defeated by the law of transferred intent, as well as ineffective assistance of appellate
counsel for failing to raise this issue on direct appeal; (2) the trial court abused its discretion at the
sentencing hearing where the trial court failed to take into account defendant’s rehabilitative
potential, improperly considered gang affiliation evidence, and went beyond the statutory
maximum sentence of 30 years’ imprisonment by sentencing him to in additional term of three
years’ mandatory supervised release.
¶ 27 On August 15, 2014, petitioner filed his pro se amended postconviction petition in which he
alleged: (1) ineffective assistance of trial counsel for falsely believing that aggravated battery with
a firearm carried a sentence of 15-30 years’ imprisonment, and (2) ineffective assistance of
appellate counsel for failing to raise trial counsel’s ineffectiveness on this issue.
¶ 28 On August 17, 2015, the Honorable Angela Petrone advanced defendant’s pro se
postconviction petition to the second stage of postconviction proceedings because more than 90
days had passed since defendant filed his petition. The postconviction court appointed the Office
of the Public Defender but gave the case a continuance for one month for counsel to appear. On
the next court date, the postconviction court learned that an assistant public defender had been
appointed but was unavailable to appear that day. After several continues, on March 3, 2016, the
postconviction court learned that newly appointed postconviction counsel was retiring. On April
13, 2016, a new assistant public defender appeared in court and informed the court that he had
been assigned to defendant’s case.
¶ 29 On April 17, 2019, postconviction counsel filed his Rule 651(c) certificate. The State filed its
motion to dismiss the petition on August 14, 2019. In addition to responding to the issues raised
in defendant’s original pro se petition, the State argued that defendant’s amended pro se petition
-10-
1-20-1375
superseded his original pro se postconviction petition and, as a result, only the two claims raised
in amended petition were properly before the court. Postconviction counsel filed a reply on
November 6, 2019, arguing that the State’s argument “defies both common law and common
sense,” and the courts should liberally construe pro se postconviction petitions. Postconviction
counsel also attached a letter from defendant in which he wrote that he wanted the court to consider
the claims on both pro se petitions. In a subsequent filing titled as a sur-reply, on February 5, 2020,
postconviction counsel submitted an affidavit from defendant stating the same. Both parties filed
additional motions addressing the relevant issues.
¶ 30 After the postconviction court heard oral argument from both parties, it issued a written order.
In its written order, the trial court initially found that “petitioner intended the amended pro se post-
conviction…to be a supplemental to, and not a replacement for, the original pro se post-
conviction…[and] [t]his Court will consider claims from both petitions.” Ultimately, the
postconviction court granted the State’s motion to dismiss defendant’s original and his amended
postconviction petitions, concluding that defendant failed to make a substantial showing of a
constitutional violation.
¶ 31 ANALYSIS
¶ 32 On appeal, defendant’s challenges his conviction and sentence pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). The Act provides a method by which
persons under criminal sentence in this state can assert that their convictions were the result of a
substantial denial of their rights under the United States Constitution or the Illinois Constitution
or both. People v. Hodges, 234 Ill.2d 1, 9 (2009); People v. Peeples, 205 Ill.2d 480, 509 (2002).
Here, the postconviction court reviewed defendant’s postconviction petition at the second stage of
postconviction proceedings. At this stage, counsel may be appointed to an indigent defendant (725
-11-
1-20-1375
ILCS 5/122-4 (West 2008)), and the State, as respondent, enters the litigation (725 ILCS 5/122-5
(West 2008)). The postconviction court must determine whether the petition and any
accompanying documentation make “a substantial showing of a constitutional violation.” People
v. Edwards, 197 Ill.2d 239, 246 (2001) (citing People v. Coleman, 183 Ill.2d 366, 381 (1998)).
¶ 33 At this stage, all well-pleaded facts that are not positively rebutted by the trial record are to be
taken as true. People v. Pendleton, 223 Ill. 458, 473 (2006). The postconviction court reviews the
petition’s factual sufficiency as well as its legal sufficiency considering the trial court record and
appliable law. People v. Ryburn, 2019 IL App (4th) 170779, ¶ 22 (citing People v. Alberts, 383
Ill.App.3d 374, 377 (4th Dist. 2008)). If no such showing of a constitutional violation is made,
the petition is dismissed. Edwards, 197 Ill.2d at 246. If, however, a substantial showing of a
constitutional violation is set forth, the petition is advanced to the third stage, where the
postconviction court conducts an evidentiary hearing. Id; 725 ILCS 5/122-6 (West 2008).
¶ 34 Defendant’s first two assertions concern allegations that his trial counsel was ineffective for
failing to preserve several issues for appellate review, and his appellate counsel was ineffective
for failing to properly raise these claims on direct appeal. Claims of ineffective assistance of
counsel are resolved under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The Strickland test also applies to claims of ineffective assistance of appellate counsel. People v.
Rogers, 197 Ill.2d 216, 223 (2001). Under Strickland, a defendant must demonstrate that counsel’s
performance was deficient and that such deficient performance substantially prejudiced the
defendant. Strickland, 466 U.S. at 687. 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
-12-
1-20-1375
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.
¶ 35 A defendant who claims that appellate counsel was ineffective for failing to raise an issue on
appeal must allege facts demonstrating that such failure was objectively unreasonable and
prejudiced the defendant. Rogers, 197 Ill.2d at 223. Appellate counsel is not obligated to brief
every conceivable issue on appeal, and it is not incompetence for counsel to refrain from raising
issues that, in his or her judgment, are without merit, unless counsel’s appraisal of the merits is
patently wrong. People v. Simms, 192 Ill.2d 348, 362 (2000). Thus, the inquiry as to prejudice
requires the reviewing court to examine the merits of the underlying issue, for a defendant does
not suffer prejudice from appellate counsel’s failure to raise a nonmeritorious claim on appeal. Id.In other words, unless the underlying issues are meritorious, defendant has suffered no prejudice
from counsel’s failure to raise them on appeal. People v. Easley, 192 Ill.2d 307, 329 (2000).
Appellate counsel’s choices concerning which issues to pursue are entitled to substantial
deference. Rogers, 197 Ill.2d at 223.
¶ 36 I. Failure to Request Jury Instruction
¶ 37 Defendant contends that the postconviction court erred in dismissing his postconviction
petition at the second stage of postconviction proceedings where he made a substantial showing
that his trial counsel provided ineffective assistance for failing to request a jury instruction for the
lesser-included offense of reckless conduct, and his appellate counsel was ineffective for failing
to raise this issue on direct appeal. In support, defendant relies upon his handwritten statement to
the police that he fired his gun behind him as he fled from Officer Sweeney. In turn, the State
-13-
1-20-1375
initially argues that defendant forfeited his claim that his trial counsel was ineffective where
defendant previously raised this issue in his posttrial pro se oral motion before the trial court and
it could have been raised on direct appeal. Alternatively, the State argues that appellate counsel
was not ineffective for failing to raise the issue of the jury not being provided a jury instruction on
the lesser-included offense of reckless conduct where this type of decision amounted to a strategic
choice, and defendant has not shown that the evidence support this instruction.
¶ 38 To begin with, defendant forfeited his claim that his trial counsel was ineffective for failing to
request a jury instruction for the lesser-included offense of reckless conduct. After thoroughly
reviewing the record, we find that defendant raised this exact issue in his oral pro se motion, and
the trial court heard from both defendant and defense counsel as to this particular issue. “[I]ssues
that could have been raised on direct appeal but were not, are forfeited.” People v. English, 2013
IL 112890, ¶ 22 (citing People v. Ligon, 239 Ill.2d 94, 103 (2010)). Therefore, defendant could
have raised this issue on direct appeal, but choose not to do so, resulting in forfeiture of defendant’s
claim of ineffective assistance of trial counsel.
¶ 39 That leaves defendant’s claim that his appellate counsel was ineffective for failing to raise trial
counsel’s error. Unlike defendant’s claim for ineffective assistance of trial counsel, this claim is
not forfeited, as this court has elected to relax the ordinary forfeiture rules with respect to
postconviction claims stemming from appellate counsel’s ineffectiveness. English, 2013 IL
112890, ¶ 22.
¶ 40 Substantively, we recognize that “‘a defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a reasonable jury to find in his favor.’”
People v. Grabow, 2022 IL App (2d) 210151, ¶ 20 (quoting People v. Everette, 141 Ill.2d 147,
156 (1990). Both parties are entitled to have a jury instructed on their theories of the case and,
-14-
1-20-1375
generally, an instruction is warranted if there is even slight evidence to support it. People v. Miller,
2021 IL App (1st) 190060, ¶ 44 (citing People v. Jones, 175 Ill.2d 126, 131-32 (1997)). A jury
instruction on a lesser-included offense is only required when the evidence reveals that the jury
could rationally find the defendant guilty of the lesser offense yet acquit the defendant on the
greater offense. See People v. Hamilton, 179 Ill.2d 319, 324 (1997); People v. Cardamone, 381
Ill.App.3d 462, 408 (2d Dist. 2008).
¶ 41 However, “[i]t is well settled in Illinois that counsel’s choice of jury instructions, and the
decision to rely on one theory of defense to the exclusion of others, is a matter of trial strategy.”
People v. Mister, 2016 IL App (4th) 130180-B, ¶ 97 (citing People v. Douglas, 326 Ill.App.3d 65,
75 (1st Dist. 2005). “Such decisions enjoy a strong presumption that they reflect sound trial
strategy, rather than incompetence” and therefore, are “generally immune from claims of
ineffective assistance of counsel.” People v. Enis, 194 Ill.2d 361, 378 (2000). Thus, trial counsel’s
decision as to which jury instruction to tender can support a claim of ineffective assistance of trial
counsel only if that choice is objectively unreasonable. Mister, 2016 IL App (4th) 130180-B, ¶ 97.
¶ 42 Here, trial counsel’s decision to not request instructions regarding reckless conduct amounted
to trial strategy as it would have been inconsistent with defendant’s own testimony as to how the
shooting occurred. For instance, in People v. Higgins, 233 Ill.App.3d 295 (3rd Dist. 1992), the
defendant, who was convicted of aggravated battery with a firearm, argued that there was some
evidence that he acted recklessly in shooting the victim and, consequently, his trial counsel was
ineffective for failing to tender instruction on the lesser-included offense of reckless conduct. On
the other hand, the State argued that the trial counsel’s decision amounted to trial strategy and not
ineffective assistance of trial counsel. In rejecting the defendant’s contention, the court found:
-15-
1-20-1375
“Here, the record clearly shows that defense counsel’s theory of defense was that
the defendant had not committed the shooting. Based on the evidence presented,
counsel could have reasonably elected to forego presenting a reckless conduct
instruction in order to weaken his position that the defendant did not commit the
charged felony and should be acquitted. Consequently, we find that counsel’s
decision was a matter of trial strategy and did not constitute ineffective assistance.”
Higgins, 233 Ill.App.3d at 298.
¶ 43 Likewise, in People v. Morrow, 2013 IL App (1st) 121316-U. 1 In Morrow, the defendant was
convicted of first degree murder after a shooting. At trial, the defendant testified that he denied
shooting the victim and denied being present at the time of the shooting. In a successive
postconviction petition, the defendant argued that his appellate counsel was ineffective for failing
to argue on direct appeal that the defendant’s trial counsel was ineffective for failing to request
second degree murder instructions. We disagreed, stating, in part:
“However, even if we determine that there was sufficient evidence to support a
second-degree murder instruction, defense counsel may have concluded that a self-
defense theory would have been incompatible with the theory presented, since it
would require defendant to admit to the shootings. ‘[T]he decision of whether to
submit an instruction on a lesser included offense is typically considered to be one
of trial strategy that has no bearing on the competency of counsel because counsel
could have reasonably believed that the instruction would have converted a likely
acquittal into a likely conviction of the lesser crime.’ [Citations] Here, defense
counsel made the strategic decision to argue that the State failed to prove its case,
1
This case is a published opinion but incorrectly labelled as an unpublished Rule 23 order.
-16-
1-20-1375
and although defendant’s trial counsel argument was ultimately unsuccessful, that
‘does not mean counsel performed unreasonably and rendered ineffective
assistance.’ [Citation.]” (Internal quotation marks omitted.) Morrow, 2013 IL App
(1st) 121316-U, ¶ 59.
¶ 44 At trial, defendant’s theory was based upon misidentification. Defendant testified that he did
not shoot at Officer Sweeney and was sleeping at St. Clair’s apartment at the time of the shooting.
He also testified that the person in the video was not him, but someone dressed like him. In light
of defendant’s testimony in which he wanted the jury to believe that this case was a result of
mistaken identity, trial counsel’s decision to proceed with that theory amounted to trial strategy.
Here, the alternative theory would have required defense counsel to concede that defendant was
the shooter, but that defendant committed the shooting recklessly as opposed to knowingly or
intentionally. Therefore, we find that defendant failed to overcome the presumption that trial
counsel’s failure to request the jury instruction was trial strategy.
¶ 45 Moreover, the postconviction court’s decision was proper where defendant cannot make a
substantial showing of resulting prejudice where a jury instruction on the lesser-included offense
of reckless conduct was not warranted based upon the evidence. Defendant’s statement in his
handwritten statement that he fired two shots behind him to discourage the officer from his
continued pursuit did not amount to the slight evidence necessary for a jury instruction on the
lesser-included offense of reckless conduct. Also, a jury instruction was not required where the
evidence did not show that jury could rationally find him guilty of reckless conduct and acquit him
of aggravated battery with a firearm.
¶ 46 The jury received instructions as to attempt first degree murder of a peace officer and
aggravated battery with a firearm. The State concedes that reckless conduct is a lesser-included
-17-
1-20-1375
offense of aggravated battery. See People v. Willis, 170 Ill.App.3d 1259, 1261-62 (3rd Dist. 1988)
(reckless conduct may be a lesser-included offense of aggravated battery). The mental state
required for reckless conduct distinguishes that offense from attempt first degree murder and
aggravated battery with a firearm. Specific intent is an element of the offense of attempt murder.
People v. Brown, 2015 IL App (1st) 131873, ¶ 14. Aggravated battery is not a specific intent crime
but does have an intent element and requires at least a “knowing” mental state. Brown, 2015 IL
App (1st) 134049, ¶ 44. The State is required to prove that a defendant was “consciously aware”
that his conduct was practically certain to cause great bodily harm. People v. Steele, 2014 IL App
(1st) 121452, ¶ 23.
¶ 47 On the other hand, to sustain a conviction for reckless conduct of the same facts, it must be
proven that the defendant’s conduct was “reckless.” 720 ILCS 5/12-5(1) (West 2011). A defendant
acts recklessly when he consciously disregarded a substantial and unjustifiable risk and such
disregard constituted “a gross deviation from the standard of care which a reasonable person would
exercise in the situation.” 720 ILCS 5/4-6 (West 2010).
¶ 48 Defendant claims that, based on the evidence presented at trial, a reasonable jury could have
found him guilty of reckless conduct and not guilty of aggravated battery with a firearm because,
in his handwritten statement, he stated that he fired two shots while running away from the officer
to discourage the officer from his pursuit. Defendant points to the difference between defendant’s
statement and Officer Sweeney’s testimony that defendant turned, aimed, and fired at him.
Defendant suggests that the crux of the difference is whether he aimed at the officer when he fired
the handgun. However, there was insufficient evidence presented to support defendant’s theory of
defense for a conviction of the lesser offense of reckless conduct. Defendant knew that he was
being chased by Officer Sweeney, had his gun in one hand as he fled, and fired two shots behind
-18-
1-20-1375
him to discourage the officer from his pursuit and to get away from the officer. In his statement,
he never stated that he did not aim at the officer when he fired the handgun twice. In fact, he stated
that when he fired the shot, he “knew that [the officer] was right there by the gangway…”
¶ 49 The cases defendant relies upon for support are unpersuasive. Defendant cites to People v.
Willet, 2015 IL App (4th) 130702, and People v. Bradley, 256 Ill.App.3d 514 (1st Dist. 1993), two
cases in which the reviewing court found that it was error to not include a lesser-included jury
instruction based upon evidence presented at trial regarding defendant’s custodial statement. In
sharp contrast to the facts in the instant case, the defendant in Willet did not deny that he made the
statements to law enforcement and then testify to an alternative theory at trial. Willet, 2015 IL App
(4th) 130702, ¶ 49.
¶ 50 In Bradley, the reviewing court found that there was evidence to support that the defendant
acted recklessly, to support a jury instruction on the lesser-included offense of criminal damage to
property, when he stated in his custodial statement, that he “may have dropped and retrieved a
lighted cigarette during a struggle…” 256 Ill.App.3d at 516. However, there is no evidence that
defendant displayed the same type of conduct in the instant case. Moreover, these cases dealt with
a claim of trial court error for failing to include the instructions as opposed to a claim of ineffective
assistance of appellate counsel.
¶ 51 Defendant cites to People v. Upton, 230 Ill.App.3d 365 (1st Dist. 1995), as a case in which
“defendant who fired gun at tow truck towing his car entitled to reckless conduct instructions[.]”
The defendant’s actions in Upton are factually distinct from those in the instant case. In Upton, the
reviewing court found that there was sufficient evidence to support a reckless conduct where the
defendant testified that he saw a pickup truck, without any commercial identification, hooking up
his car, that the men did not respond when he shouted at them, but he fired a warning shot from a
-19-
1-20-1375
considerable away. The first shot struck the boom protruding from the rear of the truck. He fired a
second shot towards the tire of the truck while he was running after the truck as it was driving
away. The evidence also established that as soon as the defendant went back inside his residence,
he called the police and reported his car was stolen. Here, defendant fired the shots at the police
officer, striking him the lower back, knowing that the officer was pursuing him and knowing that
the officer “was right there by the gangway…” Moreover, in Upton, the defendant’s testimony
was consistent with a charge of reckless conduct (Upton, 230 Ill.App.3d at 369-370), whereas, in
this case, defendant testified to not even being present at the shooting.
¶ 52 Therefore, we affirm the trial court’s dismissal of defendant’s postconviction petition on this
issue.
¶ 53 B. Ineffective Assistance of Appellate Counsel For Failing to Challenge Sentence
¶ 54 Defendant argues that he made a substantial showing that he was denied effective assistance
of appellate counsel when that counsel failed to challenge defendant’s sentence on direct appeal.
He argues that, despite the presence of mitigating evidence at the sentencing hearing, the trial court
refused to consider this evidence in determining defendant’s sentence. He asks for his case be
remanded for a new sentencing hearing or, alternatively, a third-stage evidentiary hearing. In turn,
the State responds that defendant did not make an adequate showing of ineffective assistance of
appellate counsel where he failed to demonstrate a substantial likelihood that his sentence would
have been reduced had such a claim been raised.
¶ 55 Sentencing decisions are entitled to great weight and deference. People v. Latona, 184 Ill.2d
260, 272 (1998). The trial court, having observed the defendant and the proceedings, has a far
better opportunity to consider these factors than the reviewing court, which must rely on the “cold”
record. People v. Alexander, 239 Ill.2d 205, 213 (2010). A reviewing court may reduce a sentence
-20-
1-20-1375
imposed by the trial court only when the record affirmatively shows that the trial court abused its
discretion. People v. Andrews, 2013 IL App (1st) 121623, ¶ 23; People v. Perruquet, 68 Ill.2d 149,
154 (1977). That power, however, should be exercised “cautiously and sparingly.” Alexander, 239
Ill.2d at 212. A sentence is considered an abuse of discretion only where it is “greatly at variance
with the spirit and purpose of law, manifestly disproportionate to the nature of the offense.” Id. at
212. The spirit and purpose of the law are promoted when a sentence reflects the seriousness of
the offense and gives adequate consideration to the rehabilitative potential of the defendant. People
v. Boclair, 225 Ill.App.3d 331, 335 (1st Dist. 1992).
¶ 56 Relevant factors in determining an appropriate sentence include the nature of the crime,
protection of the public, deterrence and punishment, and the defendant's rehabilitative prospects
and youth. People v. Bobo, 375 Ill. App. 3d 966, 988 (1st Dist. 2007); People v. Lamkey, 240
Ill.App.3d 435, 441-42 (1st Dist. 1992). Additionally, a trial court must base its sentencing
determination on the particular circumstances of each case, considering such factors as the
defendant's credibility, demeanor, general moral character, mentality, social environment, habits,
and age. People v. Streit, 142 Ill. 2d 13, 18-19 (1991). The weight attributed to each factor in
aggravation and mitigation in imposing a sentence depends on the particular circumstances in each
case. People v. D'Arezzo, 229 Ill. App. 3d 428, 430 (2nd Dist. 1992).
¶ 57 In determining an appropriate sentence, the seriousness of the offense or the need to protect
the public may outweigh any mitigating factors and the goal of rehabilitation. People v. Abrams,
2015 IL App (1st) 133746, ¶ 34. Indeed, “a defendant’s potential for rehabilitation is but one
factor for a sentencing court to consider, and it must be weighed against other countervailing
factors, including the seriousness of the crime.” People v. Evans, 373 Ill.App.3d 948, 968 (1st Dist.
2007). This Court has found, “[t]he most important factor a court considers when deciding a
-21-
1-20-1375
sentence is the seriousness of the offense…Rehabilitative potential, therefore, is not accorded more
weight than any other factor.” Evans, 373 Ill.App.3d at 968.
¶ 58 Defendant did not make a substantial showing that he was denied the effective assistance of
appellate counsel where he cannot establish that there is a reasonable probability that the outcome
of his appeal would have been different. Initially, we recognize that defendant’s sentence was
within the statutory range proscribed for aggravated battery with a firearm. The sentencing range
for this offense, a Class X felony, is 6 to 30 years’ imprisonment. 720 ILCS 5/12-4.2(A)(1) (West
2006). 2 Thus, defendant’s 30-year sentence was within the prescribed statutory range and
presumed to be proper. Moreover, we presume that in imposing this sentence, the court considered
the relevant factors in aggravation and mitigation. People v. Murray, 2020 IL App (3d) 180759, ¶
27 (citing People v. Wilson, 2017 IL App (3d) 150165, ¶ 14). To overcome this presumption,
defendant has the burden of showing that the court failed to consider the proper factors. Id.¶ 59 Here, the trial court conducted a thorough review of the pre-sentence report, the testimony of
Officer Sweeney at the sentencing hearing and considered the relevant statutory aggravating and
mitigating factors. While defendant suggests that the State offered “little aggravation,” the trial
court considered that defendant’s conduct caused or threatened serious harm where “[i]t threatened
death. But for the bullet-proof vest, we may have had a murder case here.” The trial court’s
comments show that it recognized that defendant’s decision to fire a gun at Officer Sweeney to
escape from the officer constituted an action which threatened serious harm to the officer.
Defendant’s argument, that the officer’s injuries were “minor” in this case ignores the fact that the
harm caused by defendant’s actions was due to fact that the officer decided to wear a bulletproof
2
The applicable aggravated battery with a firearm statute today is 720 ILCS 5/12-3.05(e)(1);
however, the 2006 statute is the one under which defendant was charge and sentenced.
-22-
1-20-1375
vest to protect himself from the exact type of actions defendant displayed that day, as opposed to
any actions taken by defendant in firing his weapon. Defendant’s argument also ignores that this
factor does not require a showing that the defendant’s actions “caused” serious harm, but also
encompasses actions that “threaten” serious harm. See 730 ILCS 5/5-5-3.2(a)(1) (West 2014).
Defendant’s actions of firing a weapon at the officer met the requirements of conduct that
threatened serious harm.
¶ 60 The trial court also considered, in aggravation, evidence of defendant’s prior criminal history.
“Prior convictions, or recidivism, [are] a traditional, if not the most traditional, basis
for…increasing an offender’s sentence.” People v. Fields, 383 Ill.App.3d 920, 921 (1st Dist. 2008)
(citations and quotations omitted). In the four years leading up to his arrest for this case, defendant
was twice convicted of possession of a controlled substance and once for auto theft and the
misdemeanor offenses of battery and resisting arrest. The trial court also found that this sentence
was necessary to deter others from committing the same offense.
¶ 61 Contrary to defendant’s claim that the trial court “improperly” rejected the mitigation evidence
presented and that he “presented substantial mitigating evidence demonstrating his rehabilitative
potential[,]” during the sentencing hearing, the trial court considered the applicability of each of
the statutory mitigating factors. Having considered the pre-sentence investigation, the trial court
was also aware of defendant’s moral character, social environment, habits, and rehabilitative
potential. See People v. Wright, 272 Ill.App.3d 1033, 1046 (1st Dist. 1995) (“where the sentencing
court examines a presentence report, it is presumed that the court considered the defendant’s
potential for rehabilitation.”) Accordingly, there is no evidence to contradict the presumption that
the court considered all the relevant factors, including those in mitigation, in determining
defendant’s sentence. People Sauseda, 2016 IL App (1st) 140134, ¶ 19.
-23-
1-20-1375
¶ 62 Defendant does not point to anything in the record to demonstrate that the trial court refused
to consider the mitigating evidence, and, instead, focuses on how the trial court chose to weigh the
mitigating evidence. However, a reviewing court may not reweigh the factors involved in a
sentencing decision. People v. Alexander, 239 Ill.2d 205, 214 (2010). Additionally, the existence
of mitigating factors does not mandate imposition of the minimum sentence (People v. Garibay,
366 Ill.App.3d 1103, 1103 (2d Dist. 2006), or preclude the imposition of the maximum sentence.
People v. Sauseda, 2016 IL App (1st) 140134, ¶ 19 (“The trial court is not obligated to reduce a
sentence from the maximum allowed simply because mitigating factors are present.”) (citing
People v. Pippen, 324 Ill.App.3d 649, 652 (4th Dist. 2001)). Additionally, the mitigation evidence
presented does not persuade us to find that the trial court abused its discretion. Defendant relies,
in part, upon evidence in the pre-sentence report showing his educational achievements, his work
history, and his family support. The pre-sentence report shows that he was supported by his father
and mother, but that he obtained a G.E.D. after dropping out of high school because he became
involved with the “wrong crowd,” took one semester of college classes before dropping out and,
despite being in “good physical health[,]” held a job for “a few weeks” before he quit the job due
to “the tough hours.” The existence of this type of mitigation evidence did not preclude the
imposition of the maximum sentence in this case.
¶ 63 Based upon the facts presented to the trial court at the sentencing hearing, we agree with the
State that the evidence does not show that the trial court abused its discretion in sentencing
defendant to 30 years’ imprisonment. Consequently, we affirm the postconviction court’s finding
that appellate counsel was not ineffective for failing to raise a claim of excessive sentence on direct
appeal.
¶ 64 III. Supreme Court Rule 651(c) certification
-24-
1-20-1375
¶ 65 Defendant contends that his postconviction petitions should be remanded for further second-
stage proceedings where his postconviction counsel provided unreasonable assistance of counsel
by failing to make “several necessary amendments” to his petitions. In turn, the State argues that
the record does not rebut the presumption that postconviction counsel fulfilled his obligations
under Supreme Court Rule 651(c).
¶ 66 During postconviction proceedings, there is no constitutional right to the assistance of counsel.
People v. Custer, 2019 IL 123339, ¶ 30. The right to counsel in postconviction proceedings is
wholly statutory. Custer, 2019 IL 123339, ¶ 30. Therefore, a defendant is entitled only to the level
of assistance provided by the Act. Id.; People v. Lander, 215 Ill.2d 577, 583 (2005). The Act
provides for a “reasonable” level of assistance. People v. Pendleton, 223 Ill.2d 458 (2006). A
reasonable level of assistance is less than that afforded by the federal or state constitutions.
Pendleton, 223 Ill.2d at 473. To assure the reasonable assistance required by the Act, Rule 651(c)
imposes specific duties on postconviction counsel. People v. Turner, 187 Ill.2d 406, 410 (1999).
Thus, counsel must: (1) consult with the petitioner either by mail or in person to ascertain the
contentions of deprivation of constitutional rights; (2) examine the record of the trial court
proceedings; and (3) make any amendments to the pro se petition necessary for an adequate
presentation of the defendant’s contentions. Ill. Sup. Ct. R. 651(c) (eff. July 1, 2017).
¶ 67 To that end, Rule 651(c) requires that postconviction counsel file an affidavit certifying that
he or she has complied with these requirements, or, in the absence of an affidavit, the record must
demonstrate that counsel adequately fulfilled his duties as postconviction counsel. People v.
Johnson, 154 Ill.2d 227, 238 (1993) (citing People v. Szabo, 144 Ill.2d 525 (1991)). “Our review
of an attorney’s compliance with a supreme court rule, as well as the dismissal of a postconviction
petition on the motion of the State, is de novo.” People v. Profit, 2012 IL App (1st) 101307, ¶ 17.
-25-
1-20-1375
If the record contains a certificate pursuant to Rule 651(c), that certificate gives rise to a rebuttable
presumption that postconviction counsel provided reasonable assistance. People v. Landa, 2020
IL App (1st) 170851, ¶ 46; People v. Jones, 2011 IL App (1st) 092529, ¶ 23. However, this
presumption may be rebutted by the record. People v. Marshall, 375 Ill.App.3d 670, 680 (1st Dist.
2007).
¶ 68 In this case, postconviction counsel filed a Rule 651(c) certificate, thereby causing a
presumption that defendant received the representation required by the rule at this stage of
proceedings. Jones, 2011 IL App (1st) 092529, ¶ 23. Defendant does not dispute that
postconviction counsel examined the record of the proceedings at trial and consulted with him to
ascertain his contentions of deprivation of constitutional rights but contends that postconviction
counsel failed to make “any of several necessary amendments” to his petition.
¶ 69 However, “[t]here is no requirement that post-conviction counsel must amend a petitioner’s
pro se post-conviction petition.” Turner, 187 Ill.2d at 412 (citing People v. Spreitzer, 143 Ill.2d
210, 221 (1991). Although counsel may raise additional issues if he or she so chooses, counsel is
not required to do so. People v. Pendleton, 223 Ill.2d 458, 475 (2006). “Post-conviction counsel is
only required to investigate and properly present the petitioner’s claims. * * *Counsel’s
responsibility is to adequately present those claims which the petitioner raises.” People v. Davis,
156 Ill.2d 149, 164 (1993) (emphasis in original). “Postconviction counsel has no obligation to
engage in a generalized ‘fishing expedition’ in search of support for claims raised in a
postconviction petition.” People v. Vasquez, 356 Ill.App.3d 420, 425 (2d Dist. 2005) (citing People
v. Davis, 156 Ill.2d 149, 163 (1993)). Counsel is also not required to advance frivolous or spurious
claims. People v. Greer, 212 Ill.2d 192, 205 (2004). Thus, “where***the presumption of
reasonable assistance is present, ‘the question of whether the pro se allegations had merit is crucial
-26-
1-20-1375
to determining whether counsel acted unreasonably by not filing an amended petition.’” People v.
Gallano, 2019 IL App (1st) 160570, ¶ 30 (quoting People v. Profit, 2012 IL App (1st) 101307, ¶
23.
¶ 70 First, defendant suggests postconviction counsel provided unreasonable assistance by his
failure to file an amended postconviction petition to preserve all of the claims raised in defendant’s
original petition as well as his supplemental petition. Defendant points out that postconviction
counsel waited to address this issue in his sur-reply motion after the State argued that defendant
forfeited the issues raised in his original postconviction petition. However, because the
postconviction court found that defendant did not forfeit any of his claims, and proceeded to
address all of them, defendant cannot establish unreasonable assistance. People v. Landa, 2020 IL
App (1st) 170851, ¶ 58 (the defendant must establish that prejudice prong for his claim of
unreasonable assistance).
¶ 71 Second, defendant argues that his postconviction counsel provided unreasonable assistance by
his failure to attach police reports to support the claim that Officer Sweeney made prior
inconsistent statements in these reports. In defendant’s original pro se postconviction petition,
defendant alleged that Officer Sweeney prepared a “Tactical Response Report” as well as an
“Officer’s Battery Report” in which he provided information relevant to this shooting. A thorough
review of the record shows that defendant referenced these documents as attached exhibits to his
petition. While the appellate record does not contain any of the exhibits that defendant referenced
through his petition, presumably these records were part of the record available to the parties and
the postconviction court during the postconviction proceedings. Consequently, defendant’s
reference to the documents as attached exhibits explains why postconviction counsel did not attach
these reports to any amended petition as they were already part of the record.
-27-
1-20-1375
¶ 72 Third, defendant argues that his postconviction counsel provided unreasonable assistance by
his failure to amend the petition to further clarify his claim that the trial testimony did not establish
that Officer Sweeney’s bulletproof vest bore appropriate markings necessary to establish a proper
chain of custody pursuant to Chicago Police Department policies. Defendant suggests that the
allegations in his postconviction petition should have been further clarified because they were “not
entirely clear…” On the contrary, defendant’s allegations were clear in his original pro se
postconviction petition as he went into great detail as to his claims. He outlined the trial testimony
of Officer Sweeney and Forensic Investigator Dunigan’s testimony and argued that the vest
presented at trial did not contain “the date the ballistic panel was issue[d]” as well as the officer’s
employee number as required by the policy, and referenced documents attached to his petition in
support of his argument. Therefore, defendant did not establish that his postconviction counsel
provided unreasonable assistance.
¶ 73 Fourth, defendant argues that his postconviction counsel provided unreasonable assistance by
his failure to file an amended petition to include a claim of that his trial counsel was ineffective
for failing to request a jury instruction for the lesser-included offense of reckless discharge. This
would have required postconviction counsel to add a new claim. We agree with the State’s
argument that there is no requirement that postconviction counsel amend a petitioner’s pro se
postconviction petition to add a new claim. People v. Turner, 187 Ill.2d 406, 412 (1999); People
v. Davis, 156 Ill.2d 149, 164 (1993). The supreme court has been definitive in stating that
appointed postconviction counsel need only amend the pro se petition to sufficiently present the
defendant’s claims (People v. Richardson, 382 Ill.App.3d 248, 254 (2008) (citing People v.
Pendleton, 223 Ill.2d 458, 475 (2006)), and need only amend those claims that are meritorious.
See People v. Pace, 386 Ill.App.3d 1056, 1062 (2008) (when postconviction counsel determines,
-28-
1-20-1375
after investigating the defendant’s claims, the claims are without merit he may choose to stand on
the petition). Here, we are not convinced of the merits of this case where defendant merely cites
to the statutory definition of reckless discharge of a firearm. 720 ILCS 24-1.5(a), in support of his
claim without any analysis as to the presence of “some evidence” in the record to support such a
lesser-included instruction. Consequently, we find that defendant has not shown that his
postconviction counsel provided unreasonable assistance by failing to add this new claim.
¶ 74 Fifth, defendant argues that postconviction counsel provided unreasonable assistance by
failing to file a supplemental petition to provide documentation and further explain his request for
a reduction in his sentence based upon his rehabilitative efforts in prison. However, defendant fails
to recognize the timeline in this case. This particular claim was not contained in defendant’s
original pro se postconviction petition or in his supplemental petition. Instead, on May 28, 2020,
defendant filed a pro se petition seeking a sentence reduction based upon his contention that, while
incarcerated, he had been working towards an associates degree and had applied for, but on a
waiting list, for vocational employment. At the time that defendant filed this petition, defendant
was represented by postconviction counsel who had already filed his Rule 651(c) certificate on
April 17, 2019. As the postconviction court recognized, defendant was not permitted to make such
a request where he was represented by counsel, and a defendant not entitled to hybrid
representation. People v. Trotter, 2015 IL App (1st) 131096, ¶ 37 (citing People v. Handy, 278
Ill.App.3d 829, 836-37 (4th Dist. 1996) (the defendant’s pro se motion for reduction of sentence
was not properly before the trial court where the defendant was represented by trial counsel at the
time that he filed the motion)). Because defendant was not entitled to file this petition, defendant
cannot establish that his postconviction counsel was ineffective for failing to file an amended
petition, especially after postconviction counsel had already filed a Rule 651(c) certificate.
-29-
1-20-1375
¶ 75 In his reply brief, defendant argues that postconviction counsel failed to provide reasonable
assistance when he “did not excise any claims that he could not support.” However, he fails to cite
to any case that provides that counsel provides unreasonable assistance in this instance. Again,
defendant’s argument presupposes that there were claims in which counsel found were
nonmeritorious or spurious. In doing so, he asks for us to equate the filing of a Rule 651(c)
certificate with postconviction counsel’s belief that the defendant’s arguments are frivolous and
patently without merit. We decline to do so. In a Rule 651(c) certificate, postconviction counsel
does not attest to the viability of a defendant’s claim but, instead, attests that there were no
amendments to the pro se petition necessary for an adequate presentation of the defendant’s
contention. Ill.Sup.Ct.R. 651(c) (eff. July 1, 2017). Rule 651(c) does “not require postconviction
counsel to advance frivolous or spurious claims.” People v. Greer, 212 Ill.2d 192, 205 (2004). If
postconviction counsel believes that a defendant’s postconviction petition is frivolous or patently
without merit, counsel may seek to withdraw or stand on the petition. See People v. Suarez, 224
Ill. 2d 37, 43 (2007) (citing Greer, 212 Ill. 2d at 209, and noting, “In Greer, the issue was whether
postconviction counsel may seek to withdraw as counsel due to a petition’s lack of merit. This
court determined that such a procedure was permissible, noting that under [Supreme Court] Rule
137 counsel could not ethically pursue claims that were frivolous and patently without merit.”).
¶ 76 Finally, defendant argues that the “excessive delay” in filing an amended petition further
supports the conclusion that postconviction counsel provided unreasonable assistance. At one
point, defendant suggests that the delay caused by his postconviction counsel amounted to seven
years, but, in actuality, it was approximately three years, which in some cases is too long, but given
the circumstances of this case, has not been stretched out by any lack of attention by postconviction
counsel. The postconviction court advanced defendant’s claims to second stage proceedings on
-30-
1-20-1375
August 17, 2015. While defendant’s initial postconviction counsel was appointed and announced
his retirement shortly after being assigned to the case, the case was then reassigned to new
postconviction counsel on April 13, 2016. He filed his Rule 651(c) certificate three years later, on
April 17, 2019. Thus, postconviction counsel was assigned to defendant’s case for only three years.
¶ 77 During those three years, postconviction counsel asked the court to sign a court order to obtain
the appellate records, informed the court that he was reviewing the transcript from the trial, had
contacted the former postconviction counsel to consult with him about the case, and that he had
contacted defendant “a couple times” to discuss the issues. At another point, postconviction
counsel also informed the court that he was waiting to get more information from defendant before
he could conduct further investigation, and there was a delay because defendant had been placed
in quarantine due to a flu epidemic. Later, he informed the court that he had been in contact with
defendant and defendant’s father. On October 24, 2018, postconviction counsel explained that he
had been delayed, in part, by the fact that his case load had significantly increased due to the
resignations of other attorneys. Certainly, the passage of three years and postconviction counsel’s
persistence in representing defendant, do not support defendant’s claim that postconviction
counsel provided unreasonable assistance.
¶ 78 Defendant cites to several cases in which reviewing courts or individual justices have
expressed concern about extreme delays in second-stage proceedings. People v. Kelley, 2012 IL
App (1st) 101521; People v. Bennett, 394 Ill.App.3d 350 (2nd Dist. 2009); People v. Woidtke, 313
Ill.App.3d 399 (5th Dist. 2000) (Maag, J., specially concurring). We find that none of these cases
are applicable to the facts here.
¶ 79 In Kelley, the delay of 12 years from the filing of a pro se postconviction petition to the entry
of the second-stage dismissal order was one of several factors in the court’s decision to find that
-31-
1-20-1375
the defendant did not receive reasonable assistance from counsel. Kelley, 2012 IL App (1st)
101521, ¶ 40. In fact, it was the combination of the delay, postconviction counsel’s failure to fulfill
the duty to shape defendant’s pro se allegations into proper form, and counsel’s inquiry for the
court to clarify at what stage the proceedings were, which showed “counsel either lacked basic
knowledge of the Act or fundamentally misunderstood it.” Id. ¶¶ 26, 31, 40. “However, Kelly [sic]
is not authority for finding Rule 651(c) noncompliance based on delay alone…” People v. Blake,
2022 IL App (2d) 210154, ¶ 27.
¶ 80 Defendant relies on Bennett as a case in which “the court criticized post-conviction
proceedings that ‘stalled’ at the second stage for seven years.” While true, the Second District also
found that Rule 651(c) did not apply to the facts in the case because postconviction counsel drafted
the petition. Bennett, 394 Ill.App.3d at 354. Therefore, defendant’s reliance on Bennett is
unpersuasive.
¶ 81 In the special concurrence in Woidtke, Justice Maag expressed concern that “the actions of the
trial court and counsel in allowing the defendant’ postconviction petition to languish for years
without even a hearing are unconscionable.” (Emphasis in original) Woidtke, 313 Ill.App.3d at 413
(J. Maag, specially concurring). It is unclear from the provided facts how many years had passed
between the time that the defendant filed his postconviction petition, and the court in Woidtke was
not considering the passage of time in the context of a claim of unreasonable assistance. Therefore,
we fail to find that this case supports a finding that defense counsel provided unreasonable
assistance in this case.
¶ 82 Because we find that defendant has not established that his postconviction counsel’s failure to
amend his postconviction petitions constituted unreasonable assistance, we find that
-32-
1-20-1375
postconviction counsel fulfilled his obligations under Rule 651(c). Therefore, we find that it is
unnecessary to remand this cause for further second-stage proceedings.
¶ 83 CONCLUSION
¶ 84 For the foregoing reasons, we affirm the second-stage dismissal of defendant’s postconviction
petition.
¶ 85 Affirmed.
¶ 86 JUSTICE HYMAN, dissenting:
¶ 87 Christopher Caldwell challenges his sentence, claiming direct-appeal counsel erred by failing
to challenge the trial court’s reliance on a “version of events clearly rejected by the jury.” The trial
court sentenced Caldwell to the maximum term for aggravated battery, which requires finding
Caldwell knowingly caused specific harm, after the jury acquitted him of the more serious charge
of attempted first-degree murder of a peace officer. That charge requires finding an intent to kill.
Compare 720 ILCS 5/8.4 and 720 ILCS 5/9-1(a)(1), (b)(1) (attempt first-degree murder of peace
officer) with 720 ILCS 5/12-4.2(a)(1) (aggravated battery with firearm).
¶ 88 The majority determines that the record contains no basis for direct-appeal counsel to have
challenged Caldwell’s sentence. But the record belies its conclusion. I would find that Caldwell
made a substantial showing of ineffective assistance. So I dissent.
¶ 89 Seriousness of the Offense
¶ 90 Sentencing considers the defendant’s rehabilitative potential and the seriousness of the offense.
Ill. Const.1970, art. I, § 11; see People v. Alexander, 239 Ill. 2d 205, 214 (2010). Caldwell’s claim
mainly turns on “seriousness” as the trial court construed it.
¶ 91 The jury received a pattern instruction (Illinois Pattern Jury Instructions, Criminal, No. 5.01A)
on intent. Still deliberating, it sent a note asking the trial court to “elaborate” on “intent to kill.” In
-33-
1-20-1375
the same note, the jury asked for a transcript of Officer Sweeney’s testimony. After five hours of
deliberations, and receiving the Prim instruction (People v. Prim, 53 Ill. 2d 62, 76 (1972)), the
once-deadlocked jury acquitted Caldwell of the more serious charge.
¶ 92 Following the acquittal, the State sought to nullify the jury’s apparent finding on intent, twice
arguing that Caldwell was guilty. The State contended, “With all due respect to this jury’s verdict,
it is the People’s position that * * * the evidence in this case showed the Defendant was proven
guilty beyond a reasonable doubt of attempt murder of a police [sic] officer as well[.]” According
to the State, Caldwell “decided to try to kill a Chicago police officer.”
¶ 93 Caldwell’s counsel pushed back. And the trial court responded, “The jury did find the
defendant not guilty of attempt first [-] degree murder. I cannot consider that charge in sentencing.”
But its pronouncement of the sentence not only contradicts, but also undermines, its deference.
¶ 94 The trial court rejected the evidence supporting the jury’s refusal to find Caldwell had the
intent to kill. Referencing the summary of Caldwell’s post-arrest statement, the trial court held, “I
believe it was a self-serving statement made to rebut the inference of intent, and it successfully did
that as the jury found the defendant not guilty of attempt first [-] degree murder.” It reached a
similar conclusion about a mitigating factor: whether Caldwell “contemplate[d]” that his conduct
would cause or threaten serious physical harm to another (730 ILCS 5-5-3.1(a)(2)). In the court’s
view, Caldwell “had to know.”
¶ 95 In his postconviction petition, Caldwell faulted the trial court for relying on a “version of events
clearly rejected by the jury.” On appeal, Caldwell likewise faults the trial court for having “focused
on the offense for which [he] was acquitted.” How does the majority handle Caldwell’s objection?
By sidestepping it, focusing instead on the trial court’s finding on a separate sentencing factor:
whether Caldwell’s conduct caused or threatened serious harm. 730 ILCS 5-5-3.2(a)(1). Though
-34-
1-20-1375
related, this inquiry markedly differs from what Caldwell “contemplate[d]” about that conduct
(730 ILCS 5-5-3.1(a)(2)).
¶ 96 To be sure, the Illinois Supreme Court has permitted trial courts to consider acquitted conduct
in limited circumstances not relevant here. For example, it held that due process does not require
resentencing when a defendant later secures an acquittal on charges considered by the trial court
when sentencing the defendant for an earlier conviction. People v. Jackson, 149 Ill. 2d 540, 553
(1992); see People v. Robinson, 286 Ill. App. 3d 903, 910 (1997) (reading Jackson as permitting
trial court to consider death of victim though jury acquitted on first-degree murder and convicted
on attempt armed robbery); United States v. McClinton, 23 F.4th 732, 736 (7th Cir. 2022), petition
for cert. filed, No. 21-1557 (filed June 10, 2022) (asking United States Supreme Court whether
fifth and sixth amendments prohibit federal court from basing defendant’s sentence on acquitted
conduct).
¶ 97 But the trial court did not consider acquitted conduct. Instead, the trial court nullified the jury’s
acquittal by finding that Caldwell had an intent to kill. Although it purported to reject the State’s
improper request, the trial court still expressly found Caldwell “had to know.”
¶ 98 Substantial Showing of Ineffective Assistance of Counsel
¶ 99 Caldwell claims direct-appeal counsel erred by failing to challenge the trial court’s reliance at
sentencing on a “version of events clearly rejected by the jury.” Caldwell argues that counsel’s
“decision to forgo an excessive sentence argument was constitutionally ineffective.” In general,
“[a] petitioner who contends that appellate counsel rendered ineffective assistance of counsel must
show that the failure to raise an issue on direct appeal was objectively unreasonable and that the
decision prejudiced petitioner.” People v. Childress, 191 Ill. 2d 168, 175 (2000).
-35-
1-20-1375
¶ 100 Assessing this claim, we start by analyzing the merits of the underlying issue. People v. Simms,
192 Ill. 2d 348, 361 (2000). Here, the excessive sentence claim. See People v. Stacey, 193 Ill. 2d
203, 211 (2000). If counsel erred by failing to raise the issue on direct appeal, the next inquiry
involves “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Simms, 192 Ill. 2d at 362. This is not an outcome-
determinative test; rather, “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 101 The majority holds Caldwell failed to make a substantial showing that counsel provided
ineffective assistance on direct appeal. See People v. Domagala, 2013 IL 113688, ¶ 35. I disagree.
Caldwell focuses on the core abuse at sentencing.
¶ 102 The trial court’s finding that Caldwell had an intent to kill effectively nullified the jury’s
acquittal. Yet, direct-appeal “counsel did not challenge the 30-year sentence as excessive” despite
the trial court’s “reliance on the attempt murder [.]” As Caldwell puts it, this error “begged to be
challenged,” but direct-appeal counsel failed to challenge it.
¶ 103 Further, counsel’s error led to the maximum term of 30 years. “For most violent acts, although
the violence creates real harm and needs to be repaired, it does not create an ongoing safety crisis
that must be addressed with ever-increasing amounts of incarceration.” Marta Nelson, Samuel
Feineh, & Maris Mapolski, A New Paradigm for Sentencing in the United States 29 (New York:
Vera Institute of Justice 2023) (canvassing studies on so-called “violent offenders”). Here, as
Caldwell contends and the record attests, his 30-year sentence is “highly disproportionate to the
offense and disregards the facts of the case, the mitigating evidence, and the constitutional directive
of restoring offenders to useful citizenship.”
¶ 104 The trial court’s disregard for the facts permeated its sentencing decision.
-36-
1-20-1375
¶ 105 First, its finding on intent arbitrarily rejected the jury’s contrary verdicts defining the
seriousness of the offense as an aggravated battery, not an attempt first-degree murder of a peace
officer. See People v. Lewis, 234 Ill. 2d 32, 48 (2009) (noting, the “integrity of the judicial process
is also affected when a decision is not based on applicable standards and evidence[] but appears to
be arbitrary”). Second, its improper finding supported its later decision to reject Caldwell’s
statement in allocution (an apology) as not “sincere.” Caldwell had apologized to the trial court,
his family, and Officer Sweeney “for the incident that occurred,” and the trial court stated, “This
is not an incident. This is more than an incident.” Third, the trial court rejected the application of
an otherwise proper mitigating factor (that Caldwell did not contemplate his conduct would cause
or threaten serious harm) because of its improper finding Caldwell had intended to kill. Again, in
the trial court’s view, Caldwell “had to know.”
¶ 106 Caldwell should get an evidentiary hearing to prove his allegations about direct-appeal
counsel’s strategic missteps. People v. Domagala, 2013 IL 113688, ¶ 35 (noting, second-stage
“review tests [only] the legal sufficiency of the petition”).
¶ 107 I would reverse and remand.
-37-