People v. Fenderson

2020 IL App (5th) 160052-U NOTICE
NOTICE
Decision filed 04/17/20. The This order was filed under
text of this decision may be NO. 5-16-0052 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of
IN THE
limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 85-CF-80
)
LEON FENDERSON, ) Honorable
) Eric J. Dirnbeck,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court.
Justices Boie and Wharton concurred in the judgment.
ORDER
¶1 Held: Where the defendant failed to make a substantial showing that his sentence of
natural life imprisonment is constitutionally infirm and must be vacated or
reduced, and any argument to the contrary would lack merit, appointed appellate
counsel is granted leave to withdraw as counsel, and the judgment of the circuit
court, dismissing the defendant’s postconviction petition, is affirmed.
¶2 In 1985, a jury found the defendant, Leon Fenderson, guilty of murder, and the circuit court
sentenced him to imprisonment for a term of natural life. In 2000, the defendant filed a pro se
petition for relief from judgment, wherein he claimed that his natural life sentence was
unconstitutional under the rule enunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). The
circuit court recharacterized the defendant’s pro se petition as a petition for postconviction relief
and appointed postconviction counsel for the defendant. Later, the defendant proceeded pro se,
and he filed an amended petition and a supplement to the petition. Ultimately, the circuit court
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dismissed the postconviction petition, as amended and supplemented by the defendant. From that
dismissal, the defendant now appeals.
¶3 The defendant’s appointed counsel on appeal, the Office of the State Appellate Defender
(OSAD), has concluded that the instant appeal lacks merit, and on that basis, it has filed a motion
to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a brief in
support of the motion. The defendant has filed with this court two separate responses to OSAD’s
Finley motion, asking that this court vacate his natural life sentence and remand this cause to the
circuit court for either a new trial or a new sentencing hearing. This court has examined OSAD’s
Finley motion and brief, the defendant’s written responses, the entire record on appeal, and this
court’s decisions in prior appeals in this cause. This court has concluded that this appeal does
indeed lack merit. Accordingly, OSAD is granted leave to withdraw as appellate counsel for the
defendant, and the judgment of the circuit court is affirmed.
¶4 BACKGROUND
¶5 In September 1985, a jury found the defendant guilty of murder (Ill. Rev. Stat. 1985, ch.
38, ¶ 9-1(a)(2)) and concealment of a homicidal death (id .¶ 9-3.1(a)). In October 1985, the circuit
court sentenced the defendant to imprisonment on both counts, with a term of natural life for the
murder count and a term of five years for the concealment count. In imposing the natural life
sentence, the circuit court relied upon section 5-8-1(a)(1)(b) of the Unified Code of Corrections
(Corrections Code), which allowed a court to impose a sentence of natural life imprisonment for
murder if the court made a factual finding that the murder was “accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-
1(a)(1)(b).
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¶6 On direct appeal, this court affirmed the conviction and sentence for murder. This court
reversed the conviction and sentence for concealment of a homicidal death, due to insufficient
evidence of guilt. See People v. Fenderson, 157 Ill. App. 3d 537 (1987). In regard to the natural
life sentence for murder, this court concluded that the record was sufficient to support the requisite
finding under section 5-8-1(a)(1)(b) of the Corrections Code, i.e., the circuit court’s factual finding
that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton
cruelty. This court noted that the victim, Mary Rhodes, “had been beaten to death, having been
struck repeatedly on her head and chest. Two ribs were broken. After being severely beaten but
while still alive, she was placed in a shower under hot water which caused second degree burns.”
Id. at 550. The defendant filed a timely petition for leave to appeal, which our supreme court
denied on February 3, 1988. See People v. Fenderson, 118 Ill. 2d 547 (1988). The defendant did
not file a petition for a writ of certiorari.
¶7 In January 1991, the defendant filed a pro se petition for relief under the Post-Conviction
Hearing Act (Ill. Rev. Stat. 1991, ch. 38, ¶ 122-1 et seq.), thus commencing his first postconviction
proceeding. The defendant claimed that he had been deprived of a fair trial and equal protection,
that trial counsel had provided ineffective assistance, and that his natural life sentence was
excessive and represented an abuse of the circuit court’s discretion. Although the circuit court
appointed postconviction counsel, the defendant later filed a pro se amended postconviction
petition. Ultimately, the circuit court dismissed the pro se amended postconviction petition. On
appeal, this court affirmed the dismissal order. See People v. Fenderson, No. 5-93-0386 (Jan. 26,
1995) (unpublished order under Illinois Supreme Court Rule 23).
¶8 On November 29, 2000, the defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), alleging that his
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sentence of imprisonment for a term of natural life was improper under the rule enunciated in
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the sentencing judge, rather than the jury,
made the factual finding on which the natural life sentence was predicated, i.e., the finding that the
murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
Without prior notice to the defendant, the circuit court recharacterized the defendant’s section 2-
1401 petition as a (successive) petition for postconviction relief. On February 6, 2001, the circuit
court appointed postconviction counsel for the defendant, effectively advancing the
recharacterized postconviction petition to the second stage of postconviction proceedings. On
March 7, 2001, the State filed a motion for extension of time, asking the court to allow it to respond
to the postconviction petition after appointed postconviction counsel had decided whether to file
an amended postconviction petition.
¶9 Years passed. The record on appeal does not indicate what, if anything, occurred in this
case between March 2001 and May 2004. On May 17, 2004, the defendant filed a pro se
“supplement” to the postconviction petition, wherein the defendant argued that he was sentenced
to life imprisonment pursuant to a “statutory scheme” that was unconstitutional because it
(1) “dictated the mode of the proceeding”, (2) relieved the State of its burden of calling witnesses
at the defendant’s “capital sentencing hearing” in order to prove that the crime was exceptionally
brutal and heinous, and (3) “circumscribes the power of the court to determine facts and law.” In
June 2004, the circuit court, on its own motion, scheduled a status hearing. Additional years
passed. The record does not indicate what, if anything, occurred in this case between June 2004
and September 2007. On September 13, 2007, the defendant filed a pro se “motion to supplement”
his postconviction petition, wherein he complained that appointed postconviction counsel was
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neglecting his case. In October 2007, the circuit court, on its own motion, scheduled a status
hearing.
¶ 10 On May 27, 2008, the State filed a motion to dismiss the defendant’s postconviction
petition, on the grounds that (1) it was untimely, (2) the defendant had not obtained leave of court
to file a successive postconviction petition, and (3) the Apprendi decision did not apply
retroactively to the defendant’s case. The record shows that between May 2008 and September
2013, the circuit court held many status hearings in this cause. On September 11, 2013, the
defendant filed a pro se “motion for interlocutory ruling and appointment of new counsel,”
wherein he asked the circuit court to decide whether his postconviction petition should be
advanced to the third stage of postconviction proceedings and also asked for the appointment of
new counsel. In November 2013, the court allowed postconviction counsel to withdraw, due to
counsel’s appointment as an associate circuit judge, and appointed substitute postconviction
counsel for the defendant.
¶ 11 In February 2014, substitute postconviction counsel filed a motion to withdraw as counsel,
pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and a certificate of compliance with
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Counsel argued that the defendant could
not make a substantial showing of a constitutional violation because Apprendi did not even apply
to his case, since the direct appellate review of his case had been completed prior to the decision
in Apprendi. The defendant promptly filed a written objection to postconviction counsel’s Finley
motion, arguing that Apprendi did indeed apply to his case, and also arguing that section 5-8-
1(a)(1)(b) of the Corrections Code, the section under which he was sentenced to natural life
imprisonment, was void ab initio because it assigned to the sentencing judge, and not to the jury,
the task of determining whether the murder was accompanied by exceptionally brutal or heinous
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behavior, etc. On March 5, 2014, the court held a hearing on counsel’s Finley motion, and it
granted the motion. The court also allowed the State 30 days in which to file a responsive pleading
or a motion to dismiss the postconviction petition.
¶ 12 On March 27, 2014, the defendant filed a pro se amended postconviction petition, wherein
he argued that the Apprendi rule applied retroactively to his case even though direct appellate
review of his case had been completed prior to the Apprendi decision. The defendant also
requested the appointment of another postconviction attorney. Having been granted additional
time in which to file a response or a motion to dismiss, the State on April 30, 2014, filed a motion
to dismiss the amended postconviction petition, on the ground that Apprendi did not apply
retroactively to the defendant’s case. On June 9, 2014, the defendant filed a pro se response to the
State’s April 30, 2014, motion to dismiss, arguing that regardless of when his direct-appeal process
concluded, his natural life sentence was imposed in violation of due process, and the sentence
needed to be reduced. On August 13, 2014, the defendant was in court, pro se, and he filed a
“supplement” to the amended postconviction petition, wherein he claimed that (1) direct-appeal
counsel had provided ineffective assistance by not raising the Apprendi issue, (2) the State had
filed its motion to dismiss his postconviction petition in an untimely manner, thus requiring the
circuit court to grant the relief the defendant requested, and (3) he was statutorily entitled to the
appointment of postconviction counsel. The court scheduled for September 10, 2014, a hearing
on the State’s motion to dismiss the amended postconviction petition. The State soon filed a
response to the defendant’s August 13, 2014, supplement.
¶ 13 On September 10, 2014, the court held a hearing on the State’s motion to dismiss the
amended postconviction petition; the State and the defendant pro se presented arguments already
stated in their written pleadings, and the court took the matter under advisement. On October 8,
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2014, the circuit court announced to the State and the defendant pro se, in open court, that it
“denied” the defendant’s postconviction petition. The defendant immediately perfected an appeal
from the order, and the circuit court appointed OSAD to represent him on appeal. However, on
October 29, 2014, the defendant filed a pro se “motion for rehearing and reconsideration,” wherein
he argued that (1) the circuit court, in February 2001, improperly recharacterized his pro se section
2-1401 petition as a petition for postconviction relief, for the court recharacterized the pro se
pleading without first providing the defendant with proper notice and admonishment, and under
those circumstances, the court’s dismissal of the postconviction petition constituted reversible
error, as held by our supreme court in People v. Pearson, 216 Ill. 2d 58 (2005), (2) the circuit court
deprived the defendant of due process when it refused to appoint substitute postconviction counsel
after the March 5, 2014, withdrawal of postconviction counsel, and (3) the constitutional
prohibition on ex post facto laws was violated when the court refused to grant the relief he had
requested in his November 2000 postconviction petition.
¶ 14 In July 2015, this court entered an order remanding the cause to the circuit court with
directions to strike the October 8, 2014, notice of appeal as premature and to proceed on the timely-
filed October 29, 2014, motion to reconsider. See People v. Fenderson, No. 5-14-0505 (July 31,
2015 (unpublished summary order under Illinois Supreme Court Rule 23(c)). In September 2015,
the defendant filed in the circuit court a pro se amended motion to reconsider, wherein he argued
that the extended-term portion of his natural life sentence, i.e., the portion that exceeded the
nonextended maximum of 40 years, was unauthorized by statute and was therefore void, since the
extended-term portion was based on an aggravating factor that was proved only by a
preponderance of the evidence, and not beyond a reasonable doubt. On January 20, 2016, the State
and the defendant pro se appeared before the circuit court. The defendant again moved for the
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appointment of new postconviction counsel, and the circuit court denied that motion. The
defendant argued that the sentencing court lacked the statutory authority to impose a sentence
greater than the 40-year maximum nonextended term, rendering void any portion of the sentence
beyond 40 years, and it asked the circuit court to reduce his sentence to 40 years. From the bench,
the court denied the motion to reconsider. The defendant perfected the instant appeal. The court
appointed OSAD to represent the defendant in this appeal.
¶ 15 ANALYSIS
¶ 16 This appeal is from the second-stage dismissal of the defendant’s successive petition for
postconviction relief, as amended and supplemented by the defendant. As previously mentioned,
the defendant’s appointed counsel on appeal, OSAD, has concluded that this appeal lacks merit
and has filed a Finley motion to withdraw as counsel, along with a supporting brief. In its brief,
OSAD discussed three potential issues in this appeal, reframed as follows: (1) whether the United
States Supreme Court’s decision in Apprendi v. New Jersey applies retroactively to the defendant’s
case, (2) whether the circuit court was required to appoint a third postconviction counsel for the
defendant after the court granted the second postconviction counsel’s Finley motion and allowed
her to withdraw, and (3) whether postconviction counsel failed to satisfy the requirements of
Illinois Supreme Court Rule 651(c). This court will address those three potential issues.
¶ 17 The Post-Conviction Hearing Act (Act) provides a method by which any person
imprisoned in the penitentiary may assert that his conviction resulted from a substantial violation
of his federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2018); People v. Smith,
2015 IL 116572, ¶ 9. A proceeding under the Act is a collateral proceeding, not an appeal from
the judgment of conviction. People v. English, 2013 IL 112890, ¶ 21. A criminal defendant
initiates a postconviction proceeding by filing a petition in the circuit court. 725 ILCS 5/122-1(b)
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(West 2018). In general, the Act contemplates the filing of only one postconviction petition in any
particular cause. See, e.g., People v. Flores, 153 Ill. 2d 264, 273 (1992). A postconviction
proceeding has three distinct stages. People v. Edwards, 197 Ill. 2d 239, 244 (2001).
¶ 18 In the instant case, the defendant in November 2000 filed a petition for relief from judgment
pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)),
therein presenting his claim that Apprendi was violated in his case and necessitated relief. Without
prior notice to the defendant, the circuit court recharacterized that petition for relief from judgment
as a petition for postconviction relief, and it appointed postconviction counsel for the defendant,
thus advancing the (recharacterized) postconviction petition to the second stage of postconviction
proceedings. See 725 ILCS 5/122-2.1(b), 122-5 (West 2014). (The circuit court did not seem to
mind that the postconviction petition was a successive petition.) Ultimately, the circuit court
dismissed the petition at the second stage.
¶ 19 At the second stage of postconviction proceedings, the criminal defendant bears the burden
of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458,
473 (2006). The circuit court must take as true all well-pleaded facts that are not positively
rebutted by the trial record. Id. In short, the second stage of postconviction scrutiny “tests the
legal sufficiency of the petition.” People v. Domagala, 2013 IL 113688, ¶ 35. If the court finds
that the defendant failed to make the requisite substantial showing, and it dismisses the
postconviction petition on that basis, the dismissal is reviewed de novo. People v. Cotto, 2016 IL
119006, ¶ 24.
¶ 20 OSAD, in its brief filed in support of its Finley motion, states that a potential issue in this
appeal is whether the Apprendi decision applies retroactively to this case. The procedures followed
in this case certainly would not be permitted today, given the Apprendi decision. A jury found the
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defendant guilty of murder, in violation of section 9-1(a)(2) of the Criminal Code of 1961. See
Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1(a)(2). More specifically, the jury found beyond a reasonable
doubt that (1) the defendant performed the acts that caused the death of Mary Rhodes and (2) when
the defendant performed those acts, he knew that they created a strong probability of death or great
bodily harm to Mary Rhodes. Ordinarily, the sentence for murder was imprisonment for a term
not less than 20 years and not more than 40 years. See Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-
1(a)(1)(a). In other words, 40 years was the maximum sentence based solely on the facts found
by the jury beyond a reasonable doubt. However, at the defendant’s sentencing hearing, the circuit
court made a factual finding that the murder of Mary Rhodes was accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty, and on the basis of this factual finding—
a finding made by the court alone, and not by the jury—the court sentenced the defendant to natural
life imprisonment, all pursuant to section 5-8-1(a)(1)(b) of the Corrections Code. See id. ¶ 1005-
8-1(a)(1)(b). The statute was clear and unambiguous in giving the circuit court the authority to
make such a factual finding and to impose such a sentence.
¶ 21 The Supreme Court in Apprendi made clear that such a practice is unconstitutional. That
is, the practice of allowing a sentencing court to impose a penalty beyond the prescribed statutory
maximum based solely upon its own factual finding by a preponderance of the evidence that there
exists some particular aggravating circumstance, other than a prior conviction, is a practice that
violates a criminal defendant’s right to the due process of law. Apprendi, 530 U.S. at 490. The
Supreme Court held that in a state criminal prosecution, as in a federal criminal prosecution, any
fact, other than a prior conviction, that increases the maximum penalty for a crime must be charged
in the charging instrument, submitted to a jury, and proved beyond a reasonable doubt. Id. at 476-
77, 490. See also, e.g., People v. Swift, 202 Ill. 2d 378, 383 (2002), and cases cited therein.
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¶ 22 In his postconviction petition, the instant defendant tried to benefit from Apprendi, insisting
that the decision applied to his case and required a reduction in his prison term. However, as
OSAD recognizes in its Finley brief, the Apprendi decision does not apply to the defendant’s case,
and the defendant cannot benefit from it. Our Illinois Supreme Court has stated emphatically that
the Apprendi decision “does not apply retroactively to causes in which the direct appeal process
had concluded at the time that Apprendi was decided.” People v. De La Paz, 204 Ill. 2d 426, 429
(2003). See also Lucien v. Briley, 213 Ill. 2d 340, 348 (2004) (“contrary to [habeas corpus
petitioner’s] suggestion, De La Paz was correctly decided”). This court decided the defendant’s
direct appeal on June 19, 1987. See People v. Fenderson, 157 Ill. App. 3d 537 (1987). The
defendant timely petitioned our supreme court for leave to appeal. This court issued its mandate
to the clerk of the circuit court of Jefferson County on July 20, 1987, and the mandate never was
withdrawn. On February 3, 1988, our supreme court denied the defendant’s petition for leave to
appeal. See People v. Fenderson, 118 Ill. 2d 547 (1988). No petition for a writ of certiorari was
filed. The United States Supreme Court did not decide Apprendi until June 26, 2000, more than
12 years after the petition for leave to appeal was denied. Quite clearly, the direct appeal process
in this cause had concluded by the time Apprendi was decided, and therefore Apprendi does not
apply to this cause.
¶ 23 This court notes that the defendant, in his September 2015 pro se amended motion to
reconsider, asserted a claim distinct from his Apprendi claim. He asserted that the extended-term
portion of his natural life sentence, i.e., the portion that exceeded the nonextended maximum of
40 years, was unauthorized by the criminal statute that the jury found him guilty of violating and
therefore, according to the defendant, that portion of the sentence was void. This same argument
was presented to, and rejected by, the First District and the Second District of the Appellate Court,
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in People v. Rockman, 2012 IL App (1st) 102729, and People v. Smith, 395 Ill. App. 3d 496 (2009),
respectively. The First District recognized that the voidness argument was an attempt to avoid the
De La Paz holding concerning Apprendi retroactivity. See Rockman, 2012 IL App (1st) 102729,
¶ 27 (“defendant recognizes the problem created for him by De La Paz and, as a result, he claims
that he is not making an Apprendi argument but a voidness argument”). The argument is not any
stronger now. Furthermore, after the decisions in Rockman and Smith, our supreme court decided
People v. Castleberry, 2015 IL 116916, and explicitly abolished the void-sentence rule. A
sentence’s failure to conform to a statutory requirement does not render the sentence void; if the
sentencing court had jurisdiction over the criminal and over the crime, the sentence was merely
voidable, not void. Castleberry, 2015 116916, ¶¶ 11, 15. The defendant here relied on a void-
sentence theory that is no longer valid.
¶ 24 The second potential issue that OSAD raises in its Finley brief is whether the circuit court
was required to appoint a third postconviction counsel for the defendant after the court granted the
second postconviction counsel’s Finley motion and allowed her to withdraw. In February 2001,
the circuit court first appointed postconviction counsel for the defendant, in compliance with
section 122-4 of the Act. See 725 ILCS 5/122-4 (West 2000) (appointment of postconviction
counsel). In November 2013, postconviction counsel was allowed to withdraw from the case, due
to his appointment as an associate circuit judge, and the court appointed substitute postconviction
counsel. Three months afterward, in February 2014, substitute postconviction counsel filed with
the circuit court a Finley motion to withdraw from representation, having concluded that the
defendant could not make a substantial showing of the claimed due-process violation because the
Apprendi decision, upon which his claim was based, did not even apply to his case, since the direct
appellate review of his case had been completed before Apprendi was even decided. (As explained
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supra, this court agrees with the conclusion of postconviction counsel below.) The circuit court
granted postconviction counsel’s Finley motion. This procedure was in keeping with Finley. See
Finley, 481 U.S. at 553, 558. See also, e.g., People v. Elken, 2014 IL App (3d) 120580, ¶ 36
(where postconviction counsel concludes, at the second stage of postconviction proceedings, that
his client’s postconviction claims lack merit, he should seek to withdraw as counsel). After the
circuit court allowed postconviction counsel to withdraw, the court was free to appoint another
postconviction attorney or to have the defendant proceed pro se. People v. Jackson, 2015 IL App
(3d) 130575, ¶ 17. Nothing in the Act or in case law required the circuit court to appoint another
postconviction attorney in these circumstances. Any argument that the circuit court was required
to appoint another postconviction attorney, after allowing one to withdraw pursuant to Finley,
would lack merit.
¶ 25 OSAD’s third potential issue is whether postconviction counsel failed to satisfy the
requirements of Illinois Supreme Court Rule 651(c). As previously described, postconviction
counsel, in February 2014, filed a Finley motion to withdraw as counsel and a certificate of
compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Under the Act, the
defendant, as a postconviction petitioner, was entitled to a reasonable level of assistance from his
appointed postconviction counsel. See, e.g., People v. Perkins, 229 Ill. 2d 34, 42 (2007). In order
to ensure that the required level of assistance was provided, Rule 651(c) required that the record
contain a showing that counsel (1) consulted with the postconviction petition in order to ascertain
his contentions of constitutional violations, (2) examined the trial record, and (3) amended the
pro se petition as necessary to present adequately the postconviction petitioner’s claims. Ill. S. Ct.
R. 651(c) (eff. Feb. 6, 2013). This showing could be made by a certificate filed by counsel. Id.Here, the record contains a satisfactory Rule 651(c) certificate filed by counsel in the circuit court
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at the time she filed her Finley motion. The defendant filed a written response to the Finley motion;
though disagreeing with counsel’s assessment of his case, he did not dispute counsel’s assertions
that she had consulted with him and had examined the trial record. At a hearing on her Finley
motion, counsel mentioned to the circuit court that she and the defendant had spoken via telephone
and had exchanged letters; the defendant, who was present, did not dispute counsel’s assertion.
Nothing in the record calls into question any portion of the truth or accuracy of postconviction
counsel’s Rule 651(c) certificate. Any argument that postconviction counsel had failed to comply
with Rule 651(c), or had failed to provide a reasonable level of assistance, would lack merit.
¶ 26 This court notes that the circuit court, in 2000, recharacterized the defendant’s section 2-
1401 petition as a (successive) postconviction petition, without prior notice or admonishment to
the defendant. A few years later, our supreme court made clear that such a recharacterization must
not be done without first notifying and admonishing the defendant. See People v. Pearson, 216
Ill. 2d 58, 68 (2005). See also People v. Shellstrom, 216 Ill. 2d 45, 57 (2005), Pearson’s
companion case. However, in the instant case, the circuit court advanced the recharacterized
postconviction petition to the second stage of postconviction proceedings and appointed
postconviction counsel for the defendant, thus rendering the prior notice and admonishments
unnecessary. See People v. Stoffel, 239 Ill. 2d 314, 328 (2010).
¶ 27 Finally, in one of the two written responses that the defendant filed with this court in
response to OSAD’s Finley motion to withdraw as counsel on appeal, the defendant alleges that
trial counsel provided constitutionally ineffective assistance by failing to advise him properly in
regard to a plea offer that the State allegedly tendered to trial counsel and by mishandling plea
negotiations, and the defendant seems to suggest that direct-appeal counsel was ineffective in
regard to the issue of trial counsel’s ineffectiveness. This matter was not raised in the
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postconviction proceedings in the circuit court, and it cannot be raised now. See People v. Jones,
211 Ill. 2d 140, 148 (2004) (where a defendant did not include a particular issue in the
postconviction petition that he filed in the circuit court, he is barred from raising the issue in his
appeal from the dismissal of that postconviction petition).
¶ 28 CONCLUSION
¶ 29 The defendant failed to make a substantial showing of a constitutional violation, and the
circuit court properly dismissed his postconviction petition at the second stage of postconviction
proceedings. Any argument to the contrary would lack merit. Accordingly, OSAD is granted
leave to withdraw as the defendant’s attorney on appeal, and the judgment of the circuit court is
affirmed.
¶ 30 Motion granted; judgment affirmed.
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