People v. Jenkins

2020 IL App (3d) 180551

Opinion filed December 21, 2020

Modified upon denial of rehearing February 8, 2021
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-18-0551
v. ) Circuit No. 11-CF-2122
)
WILLIAM J. JENKINS, ) Honorable
) Sarah F. Jones,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Presiding Justice McDade and Justice O’Brien concurred in the judgment and opinion.
____________________________________________________________________________

OPINION

¶1 Defendant, William J. Jenkins, an indigent defendant, appeals the second-stage dismissal

of his amended postconviction petition on the grounds that the circuit court deprived him of his

equal protection right to free access to certain materials necessary to prepare a defense. Defendant

argues that he did not receive the effective assistance of counsel in the circuit court and on appeal

because the issue was neither preserved by posttrial counsel nor recognized and raised by appellate

counsel.
¶2 The State argues that the dismissal of defendant’s postconviction petition was proper

because defendant was not entitled to free access to his codefendant’s trial transcripts and also

contends that trial and appellate counsel did not provide deficient representation by declining to

preserve or raise that issue. We reverse the circuit court’s dismissal of defendant’s postconviction

petition, vacate defendant’s convictions, and remand for further proceedings.

¶3 I. BACKGROUND

¶4 Defendant and codefendant, Ira D. Cunningham, were jointly charged in the same

information with two felonies and one misdemeanor offense: residential burglary, theft, and

obstructing identification, respectively. Later, the State increased defendant’s charges to four

felonies based on a subsequent indictment as follows:

Count I—Ira D. Cunningham and William J. Jenkins: residential burglary

Count II—William J. Jenkins: burglary

Count III—Ira D. Cunningham and William J. Jenkins: theft

Count IV—Ira D. Cunningham: obstructing justice

Count V—William J. Jenkins: obstructing justice

¶5 The court appointed the office of the public defender to represent defendant. However,

defendant elected to proceed as a self-represented litigant with respect to the indicted charges he

was facing for residential burglary (720 ILCS 5/19-3 (West 2010)) as alleged in count I, burglary

(id. § 19-1(a)) as alleged in count II, and theft (id. § 16-1(a)(4)(A), (b)(4)) as alleged in count III.

¶6 At some point, defendant’s and Cunningham’s cases were severed, and Cunningham’s trial

took place first. Defendant’s jury trial was scheduled to commence on Monday, August 20, 2012.

On Friday, August 17, 2012, the parties convened for a final pretrial conference. During that court

appearance, defendant inquired of the court: “Your Honor, what is the verdict on Mr.

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 Cunningham’s case?” The court replied that Cunningham, a codefendant in Will County case No.

11-CF-2122, had been found guilty on all counts. 1

¶7 Defendant requested transcripts of his codefendant’s trial, indicating that such transcripts

would allow him to identify any discrepancies in the testimony of witnesses testifying at both

trials. The following exchange ensued:

“THE COURT: *** I can tell you right now that the court reporters don’t

have magic wands; that they cannot produce transcripts out of thin air.

If I put it over Friday until Monday morning, can you afford these

transcripts ***?

THE DEFENDANT: No. I am indigent.

THE COURT: You do not have a right to free transcripts for trial ***.”

Defendant stated that the transcripts were necessary. The colloquy continued:

“THE COURT: As it exists right now you do not have a right to them for

free. You don’t. You didn’t want the Public Defender’s Office. Public Defender

might have been able to obtain those for you. You didn’t want them to represent

[you] ***. This is what happened.

I can get the court reporters to put together a statement for you, but they

can’t have it done overnight.

*** [Y]ou don’t get them for free.

THE DEFENDANT: I would like a statement if that’s—

THE COURT: *** [H]ow many witnesses do we have?

1
According to the State’s motion to dismiss defendant’s postconviction petition, Cunningham’s
trial was held in July 2012. No more specific date is found in the record.

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 [THE STATE]: Seven to nine witnesses and jury selection. We’re doing

opening statements, closing arguments, return a verdict.

THE COURT: I can see it. I looked at Mr. Cunningham’s docket. My court

reporters do work very hard. If we can get some ballpark, can I tell him in the

thousands. Would it be fair?

[THE STATE]: Yes.

THE COURT: You don’t get them for free. You don’t have a right for them

free transcripts [sic]. You don’t have a right to them for free.

Motion for transcripts is denied.”

¶8 Defendant’s jury trial began on August 20, 2012, as scheduled. Upon completion of the

four-day trial, the jury found defendant guilty on all counts.

¶9 The public defender represented defendant for purposes of his posttrial proceedings. The

public defender filed a motion for a new trial, which the circuit court denied. The court sentenced

defendant to concurrent terms of 20 years’ imprisonment for residential burglary and burglary, as

well as concurrent terms of 5 years’ imprisonment for theft and obstructing justice. Defendant filed

a pro se motion to reconsider sentence, which the court denied.

¶ 10 On direct appeal, defendant argued that his sentences for theft and obstructing justice were

improper insofar as the court believed he was extended-term eligible on those charges. This court

agreed and remanded the matter for resentencing on those convictions. People v. Jenkins, No. 3-

13-0547 (2015) (unpublished summary order under Illinois Supreme Court Rule 23(c)). The circuit

court subsequently resentenced defendant to terms of five years’ and three years’ imprisonment

for theft and obstructing justice, respectively.

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¶ 11 On November 30, 2015, defendant filed a pro se petition for postconviction relief. In his

petition, defendant claimed, inter alia, that he “was denied the right to free Transcript[s] of his Co-

Defendant Trial’s [sic].” The court appointed counsel to represent defendant in postconviction

proceedings, and counsel filed an amended petition.

¶ 12 The amended postconviction petition alleged that the denial of access to free transcripts

violated defendant’s rights to due process and equal protection. The amended petition also alleged

that posttrial counsel rendered ineffective assistance for failing to raise the transcript issue in his

motion for new trial and that appellate counsel was similarly ineffective for failing to raise the

transcript issue on direct appeal.

¶ 13 The State filed a motion to dismiss defendant’s amended petition. The State’s motion

asserted, inter alia, that the transcripts from Cunningham’s trial were unavailable at the time of

defendant’s request and that defendant was not entitled to free copies of those transcripts.

¶ 14 The court granted the State’s motion to dismiss defendant’s amended petition. This appeal

follows.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues that the circuit court erroneously dismissed his amended

postconviction petition. The amended postconviction petition alleged that the denial of access to

free transcripts of his codefendant’s trial violated defendant’s constitutional rights to due process

and equal protection. The amended petition also alleged that defendant received ineffective

assistance of both trial and appellate counsel because neither attorney raised the circuit court’s

refusal to provide a free transcript of his codefendant’s trial as grounds to set aside his convictions.

Since there are no disputed facts, defendant requests that this court provide direct relief by vacating

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 his convictions and remanding to the circuit court for a new trial rather than a third-stage

evidentiary hearing.

¶ 17 The State contends that the amended postconviction petition lacked merit and was properly

dismissed by the trial court. In support of this argument, the State relies on the decision from the

United States Supreme Court in Britt v. North Carolina, 404 U.S. 226 (1971). Without the

existence of judicial error, the State asserts that neither posttrial counsel nor appellate counsel

could be criticized as ineffective for failing to challenge a correct ruling by the trial court. Next, a

brief discussion of the conduct that constitutes ineffective assistance of counsel is in order.

¶ 18 The sixth amendment guarantees a defendant’s right to effective assistance of counsel in

all critical stages of criminal proceedings. U.S. Const., amend. VI; People v. Hughes, 2012 IL

112817, ¶ 44. This includes a right to the effective assistance of counsel on direct appeal (People

v. Easley, 192 Ill. 2d 307, 328 (2000)) and in posttrial proceedings (People v. Miller, 2020 IL App

(1st) 163304, ¶ 61). However, appellate counsel is not obligated to raise “every conceivable issue

on appeal.” People v. Williams, 209 Ill. 2d 227, 243 (2004). A claim of ineffective assistance of

appellate counsel will succeed only where a defendant shows that counsel was objectively

unreasonable in failing to raise a claim on appeal and that, absent that failure, the defendant’s

conviction would have been reversed on direct appeal. Id. Thus, such a claim turns on whether the

claim at issue was meritorious. Easley, 192 Ill. 2d at 329 (“[U]nless the underlying issues are

meritorious, defendant has suffered no prejudice from counsel’s failure to raise them on appeal.”).

¶ 19 Accordingly, this court must first decide the underlying issue, namely, whether this

indigent defendant’s request for a free transcript of his codefendant’s trial should have been

granted by the trial court pursuant to the equal protection clause of our constitution. If so, then we

will address whether the failure of counsel to preserve or address the transcript issue constituted

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 deficient legal representation. Finally, we will examine whether the deficient representation, if

any, resulted in prejudice to defendant and warrants postconviction relief.

¶ 20 A. Equal Protection Considerations

¶ 21 1. Precedent from the United States Supreme Court

¶ 22 An indigent defendant’s equal protection right to free access to transcripts of circuit court

proceedings evolves from a trio of cases decided by the United States Supreme Court beginning

in the 1950s. In Griffin v. Illinois, 351 U.S. 12 (1956), the Court held that equal protection demands

that an indigent defendant be provided with free transcripts of his previous trial, or an adequate

alternative, for the purposes of direct appeal. After observing that every defendant is entitled to

purchase his own transcripts if he has sufficient means, the Court commented:

“Providing equal justice for poor and rich, weak and powerful alike is an

age-old problem. People have never ceased to hope and strive to move closer to

that goal. *** Both equal protection and due process emphasize the central aim of

our entire judicial system—all people charged with crime must, so far as the law is

concerned, ‘stand on an equality before the bar of justice in every American

court.’ ” Id. at 16-17 (quoting Chambers v. Florida, 309 U.S. 227, 241 (1940)).

The Court further opined that the denial of adequate appellate review to the indigent was an

“invidious discrimination[ ]” that ran contrary to the equal protection clause. Id. at 18. The Griffin

Court declared bluntly: “There can be no equal justice where the kind of trial a man gets depends

on the amount of money he has.” Id. at 19.

¶ 23 Eleven years later, in Roberts v. LaVallee, 389 U.S. 40 (1967), the Supreme Court

recognized that an indigent defendant was entitled to a free transcript of his preliminary hearing

as a matter of equal protection. In so holding, the Court reiterated:

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 “Our decisions for more than a decade now have made clear that differences

in access to the instruments needed to vindicate legal rights, when based upon the

financial situation of the defendant, are repugnant to the Constitution. *** ‘[T]o

interpose any financial consideration between an indigent prisoner of the State and

his exercise of a state right to sue for his liberty is to deny that prisoner the equal

protection of the laws.’ ” Id. at 42 (quoting Smith v. Bennett, 365 U.S. 708, 709

(1961)).

¶ 24 In his dissent, Justice Harlan observed that both the defendant and defendant’s attorney

had been present at the preliminary hearing and should have had notice of the contents of that

hearing. Id. at 43 (Harlan, J., dissenting). Justice Harlan’s dissent pointed out that the defendant

had not “suggested any use to which the preliminary hearing transcript could have been put,

although [having been present at the hearing] he is in a position to know what it contains.” Id.

Consequently, Harlan cautioned that the majority’s holding created precedent that could mandate

“any document related to the criminal process, no matter how demonstrably trivial its significance,

must be supplied free to indigents simply because the State is willing to make it available to others

able to pay for it.” Id. Harlan concluded that he “would at least undertake to examine the

importance of the particular document in question.” Id. at 44.

¶ 25 Four years later, the Supreme Court had an opportunity to act on Justice Harlan’s concerns.

In Britt, an indigent defendant requested a transcript of a prior mistrial in his own case. The Court

developed a two-factor test for determining the importance of the requested transcript for purposes

of developing a defense strategy. The Court opined:

“In prior cases involving an indigent defendant’s claim of right to a free

transcript, this Court has identified two factors that are relevant to the determination

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 of need: (1) the value of the transcript to the defendant in connection with the appeal

or trial for which it is sought, and (2) the availability of alternative devices that

would fulfill the same functions as a transcript.” Britt, 404 U.S. at 227.

¶ 26 Significantly, the Court held that the defendant was not obligated to make a “particularized

showing of need” for a transcript of his prior mistrial because the importance of that particular

transcript was so obvious that its value to a defendant should be presumed by the trial court. Id. at

228. The Court observed as follows:

“Our cases have consistently recognized the value to a defendant of a transcript of

prior proceedings, without requiring a showing of need tailored to the facts of the

particular case. *** [E]ven in the absence of specific allegations it can ordinarily

be assumed that a transcript of a prior mistrial would be valuable to the defendant

in at least two ways: as a discovery device in preparation for trial, and as a tool at

the trial itself for the impeachment of prosecution witnesses.” Id.

¶ 27 It should be noted that the defendant in Britt conceded that adequate alternatives were

available to him. Id. at 230. Nonetheless, the Court emphasized that, in the absence of such a

concession, the second prong of the Britt test does not place the burden of the person requesting a

free transcript to “bear the burden of proving inadequate such alternatives as may be suggested by

the State or conjured up by a court in hindsight.” Id.

¶ 28 2. Precedent from Illinois Case Law

¶ 29 After the Britt decision in 1971, several decisions in this state addressed the issue of an

indigent defendant’s right to free access to the transcripts of a codefendant’s proceeding.

Surprisingly, those courts did not acknowledge or rely upon Britt when deciding this issue. For

example, in 1972, the First District held that the defendant was entitled to a new trial on the grounds

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 that the defendant’s request for a free transcript of his codefendants’ trial should have been granted.

People v. Russell, 7 Ill. App. 3d 850 (1972). Citing Illinois cases adopting the rule that an indigent

defendant is entitled to free mistrial transcripts, the Russell court—without further analysis or

reference to Britt—concluded that the same rule applied to transcripts of a codefendant’s trial. Id.

at 852.

¶ 30 Similarly, without reference to Britt, this court reached the same conclusion in People v.

Hudson, 7 Ill. App. 3d 333, 338 (1972). In Hudson, the defendant requested a free transcript of his

own prior mistrial and a free transcript of a codefendant’s separate trial. In that decision, this court

opined that an indigent defendant “would ordinarily be entitled to these materials upon a timely

request.” Id. Our court ordered that the transcripts of the codefendant’s trial should be supplied to

the defense, free of charge, prior to the new trial. Id. Both of these decisions support the

defendant’s position in this appeal.

¶ 31 However, 20 years later this court seemed to step back from the language in Hudson. In

People v. Rial, 214 Ill. App. 3d 420 (1991), the defendant raised nine contentions of error,

including a claim that he was erroneously denied a free transcript of his codefendant’s trial.

Referencing Griffin but without mentioning Britt’s two-part test, this court stated: “While the law

holds that an indigent defendant is entitled to a free transcript of his own trial (Griffin, [351 U.S.

12]), it does not hold he is entitled to a free transcript of someone else’s trial.” Id. at 425. In a

slightly different context, in Harris v. State, 212 Ill. App. 3d 13 (1991), this court upheld the denial

of an indigent defendant’s request for a free transcript of a codefendant’s trial but once again did

not apply or reference the Britt two-part test.

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¶ 32 Consequently, the case law from this court is conflicting and has yet to specifically apply

the two-part Britt test. Therefore, instructive guidance can be found in the decisions applying the

Britt test from some courts of other jurisdictions.

¶ 33 3. Precedent from Other Jurisdictions

¶ 34 Without exception, the case law from other jurisdictions that we have examined provides

that equal protection considerations mandate free access to transcripts of prior proceedings for

indigent defendants under limited conditions. The majority of these decisions employ an analysis

that narrowly construes Britt. E.g., State v. Peterson, 349 N.E.2d 308, 430, 434 (Ohio 1976);

McKibbon v. State, 749 S.W.2d 83, 85-86 (Tex. Crim. App. 1988) (en banc); Phillips v. State, 65

So. 3d 971, 1001 (Ala. Crim. App. 2010); Harris v. Stovall, 212 F.3d 940, 945 (6th Cir. 2000);

State v. Oswald, 606 N.W.2d 238, 250 (Wis. Ct. App. 1999).

¶ 35 Those courts narrowly construing Britt limited Britt’s holding to the facts of that case. E.g.,

Harris, 212 F.3d at 945 (“Petitioner has not cited any Supreme Court authority extending the

principles of Britt to an indigent defendant’s request for free copies of transcripts from a prior trial

of his codefendants ***.”); Oswald, 606 N.W.2d at 250 (“The Supreme Court has not extended

Britt’s presumption of usefulness to transcripts of other people’s trials and we decline to do so

here.”).

¶ 36 In contrast, a minority of decisions from other jurisdictions have adopted a more expansive

view of the holding in Britt. These courts have applied a rebuttable presumption of value of a

codefendant’s trial. This approach does not require an indigent defendant to first make a showing

of particularized need for the free transcript. E.g., State v. Scott, 319 P.3d 252, 262 (Haw. 2013);

United States v. Sheppard, 559 F. Supp. 571, 572-73 (E.D. Va. 1983); see also Woods v. Superior

Court, 268 Cal. Rptr. 490, 492-93 (Ct. App. 1990) (applying Britt presumption to transcript of

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 prior civil hearing); Beasley v. State, 404 P.2d 911, 913 (Nev. 1965) (finding a defendant per se

entitled to codefendants’ trial transcripts under Griffin, rather than Britt).

¶ 37 Notably, this case law recognizes that a transcript of a codefendant’s trial can be even more

valuable to the defense than a transcript of a prior mistrial. Scott, 319 P.3d at 260; McKibbon, 749

S.W.2d at 87 (Clinton, J., dissenting). We share this view. Clearly, the acquisition of a

codefendant’s trial transcript has the added value of negating the “considerable strategic

advantage” gained by the State when it is essentially presenting the same evidence twice to

different triers of fact. Scott, 319 P.3d at 260. Given these obvious benefits, logic leads us to the

conclusion that any defendant who could afford to do so would undoubtedly seek out the

transcripts from a codefendant’s trial in anticipation of his own trial. See Sheppard, 559 F. Supp.

at 573 (“The Court believes defense counsel, if representing a non-indigent defendant, would have

to obtain the [codefendants’] transcript sought here in order to keep his representation within the

‘range of competence demanded of attorneys in criminal cases.’ ” (quoting McMann v.

Richardson, 397 U.S. 759, 770-71 (1970))).

¶ 38 After careful consideration, we conclude that the Supreme Court’s holding in Britt should

be broadly construed. See McKibbon, 749 S.W.2d at 87 (Clinton, J., dissenting) (“Britt is merely

an application of a broader principle to a given situation, as the Supreme Court itself made

abundantly plain ***.”). As a result, we hold that the presumption of value applies equally to

requests for free access to transcripts of preliminary hearings in the same case, free transcripts of

prior mistrials in the same case, and free transcripts of a codefendant’s trial.

¶ 39 Arguably, the transcript defendant seeks could be viewed as a transcript directly linked to

the same criminal prosecution, since both defendants were charged in two counts, counts I and III,

of the same five-count indictment before severance. Even viewing the codefendant’s trial on

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 counts I, II, III, and V as a separate proceeding due to severance, without question, counts I and

III involved the same allegations of fact against both defendants and would presumably involve

the presentation of the same or very similar evidence to the separate triers of fact. Under these

circumstances, we hold that the transcript of the codefendant’s trial in this appeal should be viewed

as presumptively valuable to defendant’s preparation for his own trial. This approach is consistent

with the outcome of our previous decision in Hudson.

¶ 40 This holding also finds support in our supreme court rule governing the production of

discovery, which actually mandates the State to turn over to the defense the “relevant written or

recorded statements” of witnesses the government intends to call in a defendant’s impending trial,

as well as “memoranda containing substantially verbatim reports of their oral statements.” Ill. S.

Ct. R. 412(a)(i) (eff. Mar. 1, 2001). Logically, in some cases, a codefendant’s trial transcript may

qualify as a recorded oral statement of a common witness that is subject to disclosure. As observed

by the court in People v. Jones, 245 Ill. App. 3d 674, 678 (1993) (“The purpose of Rule 412(a)(ii)

is to protect a defendant from surprise and inadequate preparation at trial by allowing defense

counsel to investigate the circumstances surrounding any statements.”).

¶ 41 Nonetheless, it must be recognized the presumption of value pertaining to a codefendant’s

trial transcript is never conclusive and may always be rebutted by the State. Our view places the

burden on the prosecution, the party with superior means and access to information in comparison

to an indigent defendant, to rebut the threshold presumption of value of both mistrials and trials of

other similarly charged codefendants.

¶ 42 Our next level of inquiry requires an examination of the record to discern whether the

presumptive value of this particular codefendant’s trial was rebutted by the record. If so, we may

affirm the trial court’s dismissal of the amended postconviction petition.

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¶ 43 B. Application of Law to Defendant’s Appeal

¶ 44 The record before this court reveals that the prosecution did not question whether the “dry

run” of the evidence presented during a codefendant’s trial would be inherently valuable to the

preparation of a defense in this case. Nor did the State argue that the information contained in the

transcript of the codefendant’s trial was available to this defendant, free of charge, by other means.

Consequently, the record does not rebut or negate the presumptive value of the codefendant’s trial

transcript as a necessary tool for the preparation of a defense.

¶ 45 The record demonstrates that the trial court did not deny defendant’s request for a free

transcript because it was untimely, lacked presumptive value to the defense, or could be obtained

free of charge elsewhere. Instead, the court appeared to believe that the case law established that

an indigent but pro se defendant would never be entitled to free access to a transcript of a prior

proceeding. The trial court observed, “As it exists right now you do not have a right to them for

free. You don’t. You didn’t want the Public Defender’s Office. Public Defender might have been

able to obtain those [free transcripts] for you. You didn’t want them to represent [you] ***. This

is what happened.”

¶ 46 Respectfully, the application of the two-factor Britt test is not limited to indigent

defendants represented by court-appointed counsel. The Britt test equally applies to indigent

persons proceeding pro se, as well as indigent persons with counsel. Therefore, we conclude the

trial court’s rationale was erroneous.

¶ 47 C. Trial Prejudice

¶ 48 Having concluded in the analysis above that the trial court violated defendant’s

constitutional right to equal protection by denying him access to the codefendant’s trial transcript,

we now reach the dispositive issue in this appeal. The outcome of this appeal will be dictated by

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 the following issue: whether defendant received ineffective assistance of counsel because “the

result of the proceeding would have been different” if not for counsel’s failure to preserve and then

raise an issue on direct appeal, exposing the trial court’s violation of the principles of equal

protection. 2 Strickland v. Washington, 466 U.S. 668, 694 (1984); see Easley, 192 Ill. 2d at 329.

¶ 49 The underlying equal protection issue, forfeited due to the ineffective assistance of counsel,

is of constitutional dimension. Our supreme court has stated, “The burden of proof is on the State

to show beyond a reasonable doubt that the constitutional error did not affect the outcome of the

proceeding.” People v. McClanahan, 191 Ill. 2d 127, 139 (2000). In this appeal, the State takes on

this burden by first acknowledging that there are inconsistencies in various witnesses’ testimony

between the two trials. Nonetheless, the State argues extensively—both in the State’s briefs and in

a petition for rehearing—that, even if the defendant would have had pretrial access to the

codefendant’s transcript and pointed out these admitted inconsistences to the jury, the outcome of

the jury trial would have been the same. After chronicling a myriad of these admitted

inconsistencies, the State asserts that the variations in the State’s witnesses’ testimony from trial

to trial can be best described as minor or irrelevant. Even if we assume the State’s position that

impeachment of the State’s witnesses, based on the inconsistencies in prior testimony, is correct,

our analysis does not end here.

¶ 50 While the ability to impeach a witness with prior inconsistent testimony is one benefit of

having pretrial access to a transcript of a prior proceeding, this is not the only benefit. In Britt, the

court recognized at least two “ways” that pretrial access to the transcript of a prior proceeding

2
Defendant also claims that posttrial counsel was ineffective for failing to preserve his equal
protection claim for purposes of appeal. This alleged deficient performance on the part of posttrial
counsel could only have prejudiced defendant if the failure to preserve prevented him from obtaining a
reversal on appeal. Defendant’s two claims are overlapping (see, e.g., People v. Simms, 192 Ill. 2d 348,
397-98 (2000)), and he need only prevail on one of them to attain relief.

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 would benefit the defense, namely “as a discovery device in preparation for trial, and as a tool at

the trial itself for the impeachment of prosecution witnesses.” Britt, 404 U.S. at 228. Perhaps the

Britt court listed these benefits in the order of their significance to the court. Regardless, a person

is necessarily prejudiced by being less prepared for his trial than another person with adequate

resources to purchase the transcript of a prior proceeding. This reality forms the basis of the

underlying equal protection issue presented in this appeal. However, it is impossible to measure,

with any degree of precision, the actual negative impact that a diminished level of defense

preparation would have had on the defendant’s jury trial. See United States v. Gonzalez-Lopez,

548 U.S. 140, 150 (2006) (holding that error is deemed structural when it has “ ‘consequences that

are necessarily unquantifiable and indeterminate’ ” (quoting Sullivan v. Louisiana, 508 U.S. 275,

282 (1993))).

¶ 51 A structural error is a systemic error that serves to erode the integrity of the judicial process

and undermine the fairness of a defendant’s trial. People v. Stoecker, 2020 IL 124807, ¶ 23; People

v. Thompson, 238 Ill. 2d 598, 609 (2010) (“An error is typically designated as structural only if it

necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining

guilt or innocence.”). The equal protection violation present in this record constitutes such an error.

Simply stated, contrary to the State’s position, a structural error is not susceptible to harmless error

review. Stoecker, 2020 IL 124807, ¶ 23; People v. Rivera, 227 Ill. 2d 1, 19 (2007). For this reason,

harmless error merits little, if any, discussion.

¶ 52 Our conclusions that defendant was denied equal protection by the court and thereafter

did not receive effective assistance from posttrial counsel are based entirely on facts apparent

from the face of this record, which renders a third-stage evidentiary hearing unnecessary. See

People v. Jimerson, 166 Ill. 2d 211, 231 (1995). (“Ordinarily, at this juncture of the case, we

16
 would remand for an evidentiary hearing on this issue. However, we find that an evidentiary

hearing in this instance would be an unnecessary expenditure of judicial time and resources. The

record before us provides us with ample evidence that the defendant’s right to due process was

violated ***.”). Accordingly, we reverse the circuit court’s order dismissing defendant’s

amended postconviction petition, vacate defendant’s convictions, and remand the matter to the

trial court for a new trial.

¶ 53 III. CONCLUSION

¶ 54 The judgment of the circuit court of Will County is reversed in part, vacated in part, and

remanded for further proceedings.

¶ 55 Reversed in part, vacated in part, and remanded.

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 No. 3-18-0551

Cite as: People v. Jenkins, 2020 IL App (3d) 180551

Decision Under Review: Appeal from the Circuit Court of Will County, No. 11-CF-2122;
the Hon. Sarah F. Jones, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Editha Rosario-Moore,
for of State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino
for and Thomas D. Arado, of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.

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