People v. Barmore

2022 IL App (2d) 200449-U
No. 2-20-0449
Order filed August 15, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Respondent-Appellee, )
)
v. ) No. 03 CF 1350
)
SHAWN A. BARMORE, JR., ) Honorable
) Randy Wilt,
Petitioner-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court erred in dismissing petitioner’s postconviction petition after second-
stage proceedings where postconviction counsel failed to properly amend
petitioner’s pro se petition regarding claims that his statement was coerced and that
petitioner suffered a speedy-trial violation; postconviction counsel was not
ineffective for including a claim that was barred by res judicata or for failing to
include an emerging-adult claim that was not included in petitioner’s pro se
petition; and trial court did not err in denying, after third-stage proceedings,
petitioner’s claim that trial counsel was ineffective for failing to properly advise
him of sentencing ranges he did or could have faced as it affected his decision
regarding whether to accept a plea offered by the State.

¶2 Petitioner, Shawn A. Barmore, Jr., was convicted of first-degree murder and sentenced to

45 years’ imprisonment. These charges arose out of the shooting death of Pedro Marin. His
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conviction was affirmed on direct appeal. Petitioner filed a petition pursuant to the Postconviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)), which was summarily dismissed. This

court reversed and remanded for further proceedings. Appointed counsel then filed an amended

postconviction petition. Several claims were dismissed during second-stage proceedings, and

those that survived to the third stage were subsequently denied. Petitioner now appeals, and, for

the reasons that follow, we affirm in part, reverse in part, and remand with directions.

¶3 I. BACKGROUND

¶4 The underlying facts of this case were set forth in great detail in our original disposition in

this matter. See People v. Barmore, 379 Ill. App. 3d 1080 (2008) (table) (unpublished order under

Illinois Supreme Court Rule 23). We will not repeat them here; rather, we will discuss those facts

necessary to the resolution of the arguments advanced by petitioner as we encounter them. We

will however, set forth the pertinent events surrounding the instant postconviction petition.

¶5 Petitioner filed a pro se postconviction petition. In it, petitioner alleged 29 constitutional

errors. Pertinent here, petitioner alleged that trial counsel was ineffective for failing to move to

suppress his statement. Petitioner alleged that, when he was interrogated in Denver after he was

apprehended, the interrogating detectives: (1) ignored his request for an attorney; (2) “slapped him

a few times”; and (3) told him that he would get the maximum sentence if he did not answer their

questions (or that he would receive lenient treatment if he cooperated). In support of these claims,

petitioner attached an unfiled motion to suppress his statement drafted by his trial attorney (Shelton

Green who was later replaced as trial counsel by Greg Clark). He also attached an affidavit from

his mother averring that she would testify that: petitioner wanted her to pass information to his

attorney, Greg Clark, concerning several motions his previous attorney had drafted; she contacted

Clark; Clark stated he did not plan to file any motions on behalf of petitioner and he would speak

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with petitioner when he had time; petitioner told her that when he was interrogated, police officers

slapped him two or three times and threatened him with a maximum sentence; and the interrogating

officers did not allow petitioner to speak with an attorney despite his request to do so. Petitioner

also attached his own affidavit, in which he averred: when he was interrogated, the police hit him

and “threatened to charge [him] with murder and give [him] the most time possible if [he] didn’t’

make a statement and sign it”; the police continued to question him after he asked for an attorney;

he gave Attorney Clark a copy of the motion to suppress drafted by Attorney Green and stated he

wanted Clark to file it but Clark refused; and he asked his mother to contact Clark on his behalf

and she did so.

¶6 Petitioner also averred that he instructed Clark to strike a juror who was married to a State’s

Attorney and Clark refused and that petitioner wrote to appellate counsel directing him to raise the

issue of Clark’s effectiveness on direct appeal, but appellate counsel refused.

¶7 The trial court dismissed the petition during the first-stage of postconviction proceedings.

This court reversed and remanded, so the petition advanced to the second stage. While this appeal

was pending, petitioner filed a petition in accordance with section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2010)), asserting that the superseding indictment that added

the gun enhancement was void on speedy trial and compulsory joinder grounds. On remand,

postconviction counsel was appointed to assist petitioner.

¶8 Postconviction counsel amended petitioner’s petition, setting forth seven grounds for relief

and an accompanying Rule 651(c) certificate (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)). The State

moved to dismiss. The first ground asserted was that the State offered a 20-year plea deal and trial

counsel (Green at the time) failed to inform petitioner that though he was facing 20 to 60 years’

imprisonment as originally indicted, the State could add a firearm enhancement of 25 years if

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petitioner did not accept the deal. These allegations were supported by an affidavit from petitioner

averring he would have accepted the State’s alleged offer of 20 years’ imprisonment if he knew of

the possibility of a 25-year enhancement. This claim progressed to third-stage proceedings.

¶9 Second, the petition alleged ineffective assistance of trial counsel for failing to move to

suppress petitioner’s statement given in Denver. The petition alleged that petitioner “advised that

he was physically abused by the police and numerous times asked for an attorney to be present.”

The police ignored his requests for counsel. Green drafted a motion to suppress but did not file it.

Clark and petitioner discussed the motion, and petitioner urged Clark to file it. Clark did not file

the motion. At trial, Detective Mastrioanni testified that petitioner willingly spoke with the police.

Petitioner’s statement was inconsistent with his trial testimony. Thus, the statement adversely

affected his credibility. Postconviction counsel alleged that if the motion had been granted, it

would have strengthened petitioner’s case, but “it [could] not be known whether the motion would

[have been] granted or not.” Petitioner’s supporting affidavit stated that he had discussed this issue

with Green and raised the issue with Clark. It further stated that his statement was coerced but did

not give details of how petitioner was “physically abused.” During argument, petitioner’s counsel

stated that he “agreed with [the State]” that they could not know what would have happened had

the motion been filed. Petitioner’s counsel also stated that the question of whether the motion

would have been granted “require[d] a bit of speculation.” The trial court dismissed this claim,

noting that petitioner conceded that “he has no idea if the motion to suppress statements would

have been granted.” The trial court also found that Clark’s decision not to file the motion was trial

strategy, as portions of the statement were consistent with petitioner’s trial testimony.

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¶ 10 The third ground asserted in the petition was ineffective assistance of trial counsel based

on trial counsel’s failure to move for testing of a note allegedly written by petitioner upon which

a latent fingerprint was discovered on the note. This count is not at issue in this appeal.

¶ 11 Fourth, the petition alleged that appellate counsel was ineffective for not addressing trial

counsel’s failure to argue and seek a jury instruction that petitioner’s conviction should be

mitigated to second-degree murder based on the existence of a serious provocation. The trial court

found that this issue was res judicata. Postconviction counsel raised the possibility that additional

evidence might have been discovered had trial counsel pursued the issue, but could not identify

any.

¶ 12 The fifth basis for relief asserted a Brady violation. It is not at issue in this appeal.

¶ 13 The sixth issue is also not argued in this appeal. Here, petitioner notes that a juror was

married to a former State’s Attorney and knew people that worked in law enforcement. During

voir dire, the juror stated that “he was uncertain and/or unable to be impartial due to the nature of

his wife’s work and the people he knew in law enforcement.” Despite petitioner’s urging, Clark

declined to use a peremptory challenge, and the trial court did not strike the juror for cause (which

petitioner also asserts was error). Postconviction counsel conceded that this issue “requires some

degree of speculation.” The trial court dismissed this claim, finding that it was not supported by

the record as the juror stated he could be fair and impartial.

¶ 14 The seventh claimed ground for relief in the amended petition was ineffective assistance

of appellate counsel for failing to raise the previous six issues (with the exception of the fourth)

on direct appeal. Based on its resolution of the previous claims and to the extent that some of

petitioner’s arguments concerned matters dehors record, the trial court dismissed this claim.

¶ 15 We now turn to the substance of petitioner’s appeal.

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¶ 16 II. ANALYSIS

¶ 17 Petitioner raises two main issues. First, he contends that postconviction counsel was

ineffective during second-stage proceedings in that: (1) postconviction counsel failed to

adequately present a claim that trial counsel was ineffective for not moving to suppress petitioner’s

statement to the police, (2) postconviction counsel raised a frivolous claim that was barred by

res judicata, (3) postconviction counsel failed to raise a meritorious emerging-adult claim that was

apparent on the face of the record, and (4) postconviction counsel failed to raise a meritorious

speedy-trial and compulsory-joinder claim. Second, petitioner contends that the trial court erred

in denying his claim that trial court was ineffective following third-stage proceedings in that trial

counsel failed to inform him of the potential for an enhanced sentence causing him to reject a plea

offer by the State.

¶ 18 The claims petitioner raises were resolved during both second- and third-stage

postconviction proceedings. Generally, in accordance with the Act, a petitioner may challenge his

or her conviction by alleging a constitutional violation. People v. Domagala, 2013 IL 113688,

¶ 32. The Act contemplates three stages of review. Here, the case progressed beyond the first

stage, where the trial court may dismiss petitions that are frivolous or patently lack merit. Id. In

both the second stage and the third stage, the petitioner bears the burden of “making a substantial

showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006) (citing

People v. Coleman, 206 Ill. 2d 261, 277 (2002)).

¶ 19 During the second stage, counsel may be appointed to assist the petitioner. “All well-

pleaded facts that are not positively rebutted by the trial record are to be taken as true, and, in the

event the circuit court dismisses the petition at that stage, we generally review the circuit court’s

decision using a de novo standard.” Pendleton, 223 Ill. 2d at 473.

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¶ 20 Claims that survive to the third stage are resolved in an evidentiary hearing. Id. If fact-

finding or credibility determinations are necessary to resolve the petition, we will not disturb the

trial court’s judgment unless it is manifestly erroneous. Id. Where no such determinations are

involved, we will apply the de novo standard “unless the judge presiding over postconviction

proceedings has some ‘special expertise or familiarity’ with the trial or sentencing of the

[petitioner] and that ‘familiarity’ has some bearing upon disposition of the postconviction

petition.” Id. With these standards in mind, we now turn to the issues raised by petitioner.

¶ 21 A. SECOND-STAGE PROCEEDINGS

¶ 22 We first address petitioner’s arguments concerning the representation he received from

counsel during second-stage proceedings. Specifically, petitioner alleges postconviction counsel

was ineffective for (1) failing to properly raise a claim that trial counsel was ineffective for not

moving to suppress petitioner’s statement to the police, (2) raising a claim that was barred by

res judicata, (3) failing to raise an emerging-adult claim, and (4) failing to raise a meritorious

speedy-trial and compulsory-joinder claim.

¶ 23 During postconviction proceedings, a petitioner is entitled to a “reasonable level of

assistance.” People v. Turner, 187 Ill. 2d 406, 410 (1999). Illinois Supreme Court Rule 651(c)

sets forth the specific duties counsel must perform during second-stage proceedings. Id. This rule

does not apply to third-stage proceedings, where the standard governing counsel’s conduct is one

of general reasonableness. People v. Pabello, 2019 IL App (2d) 170867, ¶ 29. To ensure

petitioners receive a reasonable level of assistance, Rule 651(c) imposes certain duties upon

counsel. People v. Schlosser, 2012 IL App (1st) 092523, ¶ 18. It requires that counsel consult

with the petitioner (in person or by mail), examine the record, and amend the petitioner’s pro se

petition to adequately present the petitioner’s claims. People v. Marshall, 375 Ill. App. 3d 670,

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680 (2007); Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). This rule further requires counsel to file an

affidavit certifying that he or she fulfilled those duties. Schlosser, 2012 IL App (1st) 092523, ¶ 18.

The filing of an affidavit by counsel certifying compliance with Rule 651(c) creates a rebuttable

presumption that counsel provided reasonable assistance to the petitioner. People v. Profit, 2012

IL App (1st) 101307, ¶ 19. It is a petitioner’s burden to overcome this presumption. Id. Further,

failing to overcome this presumption forecloses further review of the reasonableness of

postconviction counsel’s conduct. People v. Mendoza, 402 Ill. App. 3d 808, 813 (2010) (citing

People v. Rossi, 387 Ill. App. 3d 1054, 1060 (2009)).

¶ 24 Moreover, the failure of counsel to comply with Rule 651(c) is not amendable to a harmless

error analysis. People v. Suarez, 224 Ill. 2d 37, 51-52 (2007). Our supreme court has stated, “This

court has consistently held that remand is required where postconviction counsel failed to fulfill

the duties of consultation, examining the record, and amendment of the pro se petition, regardless

of whether the claims raised in the petition had merit.” Id. at 47. It added that “it is error to dismiss

a postconviction petition on the pleadings where there has been inadequate representation by

counsel.” Id. It explained, “Our Rule 651(c) analysis has been driven, not by whether a particular

defendant’s claim is potentially meritorious, but by the conviction that where postconviction

counsel does not adequately complete the duties mandated by the rule, the limited right to counsel

conferred by the Act cannot be fully realized.” Id. at 51. Whether the underlying issue is

meritorious is beside the point. Id. A court should “not speculate whether the trial court would

have dismissed the petition without an evidentiary hearing if counsel had adequately performed

his duties under Rule 651(c).” People v. Turner, 187 Ill. 2d 406, 416 (1999). Where counsel fails

to comply with Rule 651(c), a petitioner need not show that the omission caused him or her

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prejudice. People v. Nitz, 2011 IL App (2d) 100031, ¶ 18 (citing People v. Perkins, 367 Ill. App.

3d 895, 905 (2006)).

¶ 25 To proceed past the second stage, a petitioner must make a substantial showing that his or

her constitutional rights were violated. Coleman, 183 Ill. 2d 366, 381 (1998). The petition must

be supported by affidavits, records, and other evidence as necessary to substantiate its allegations.

People v. Wideman, 2013 IL App (1st) 102273, ¶ 15. While well-pleaded facts are taken as true

at this stage (Pendleton, 223 Ill. 2d at 473), conclusory allegations are insufficient to entitle a

petition to progress to the third stage (People v. Graham, 48 Ill. App. 3d 689, 692 (1977)). That

is, “Nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient

to require a hearing under the Act.” Coleman, 183 Ill. 2d at 381 (citing People v. West, 43 Ill. 2d

219, 223 (1969), and People v. Smith, 40 Ill. 2d 562, 564 (1968)). Where a claim is based

upon evidence outside the record, it should not generally be resolved on the pleadings. Coleman,

183 Ill. 2d at 382 (citing People v. Airmers, 34 Ill. 2d 222, 226 (1969)).

¶ 26 We now turn to the particular issues set forth by petitioner where he alleges he received

ineffective assistance of postconviction counsel.

¶ 27 1. The Motion to Suppress

¶ 28 Petitioner first contends that postconviction counsel rendered unreasonable assistance in

that "he failed to familiarize himself with the basis for suppressing [petitioner’s] custodial

statement, which was not adequately presented in the amended petition.” As noted, a petitioner is

entitled to the reasonable assistance of counsel in postconviction proceedings and counsel’s

conduct is governed by Rule 651(c). Turner, 187 Ill. 2d at 410.

¶ 29 At issue here are statements petitioner made to the police after he was apprehended in

Colorado. Detective Scott Mastroianni, one of the police officers that interviewed petitioner,

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testified concerning petitioner’s statement. Detective Jimenez was also present. He stated that

Rockford police officers traveled to Colorado and interrogated petitioner. Petitioner initially

denied killing the victim (Marin) in this case. Petitioner stated that a man named “Twig,” whose

real name was Eddie Torrance, shot the victim. Mastroianni testified that petitioner gave “a fairly

detailed version whereby Twig was the individual that shot Pedro Marin.” Mastroianni told

petitioner that they had witness statements identifying him as the shooter. They also had a picture

of petitioner’s brother holding the gun they believed was the murder weapon, which was taken at

petitioner’s house. Mastroianni also told petitioner that they had listened to petitioner’s father’s

phone conversations where he discussed petitioner’s involvement in the murder. Mastroianni also

noted that petitioner had been on the run for seven months. Petitioner “put his hands over his ears

and kind of hung his head low and shaking his head back and forth and told us he was scared.”

Petitioner then stated that he would give the police an oral account of what happened. Petitioner

told the officers that he had worked hard to steal a car, and he was upset because the victim had

stolen the car from him. He also stated that he had given the murder weapon to a person, but he

refused to identify the person. He stated the person had destroyed the gun, but he did not say how.

He never stated that the gun had been discharged during a struggle or that the victim had pushed

him with his left arm.

¶ 30 After he gave the oral account, petitioner gave a written statement. In that statement,

petitioner related that in May 2003, he stole a Chevrolet Caprice at a gas station. He intended to

use it for parts for another car that he owned. He parked the car in an abandoned garage. The next

day, he spoke to “Twig,” who he knew “from the neighborhood.” He believed Twig would be

able to “part out” the car. Later that day, Twig came to petitioner’s house to get the keys. Twig

was with “a Mexican dude” that petitioner did not know (Marin). They were driving a blue pickup

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truck. They said they would part out the car for an eight-ball of crack cocaine. They appeared

drunk. Petitioner gave Twig some crack, but it was less than an eight ball. He gave Twig the keys.

Marin said he was going to help Twig part out the car. Twig and Marin left, but they returned in

15 minutes and told petitioner that the car was not in the garage.

¶ 31 Petitioner told Twig he did not believe him. He and Twig drove to the garage. The car

was gone. Marin was no longer present, and petitioner asked Twig where he was. Twig stated

that he did not know. They drove around looking for him, and then drove to Twig’s house. On

the way there, they saw Marin. Petitioner got out of the truck and spoke with him. Petitioner

stated, “The Mexican dude started acting all pumped up like [petitioner] did not have a right to

question him.” They started arguing.

¶ 32 Petitioner acknowledged that he was carrying a Tech 9mm pistol. When he first got out of

the truck, he left the gun inside. After the argument began, he returned to the truck and got it. He

explained that he did not intend to shoot Marin, but “wanted him to know [petitioner] was not

playing.” Petitioner told Marin to tell him where the car was. Marin said he did not know. When

he saw petitioner’s gun, Marin asked, “What are you going to do with that gun?” Marin called

petitioner a “pussy.” Marin “started talking some crazy Mexican gang shit” and grabbed

petitioner’s gun. Petitioner told Marin not to touch his gun. Twig said that they did not know

where the car was. Marin grabbed the gun again, and petitioner jumped back. Petitioner stated

that he shot Marin because he was afraid Marin would take the gun and use it against him. After

petitioner fired the gun, Marin ran. Petitioner fired between one and five more times, but he was

not aiming at Marin; he was simply trying to cause him to keep running away. Twig left in the

blue truck.

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¶ 33 Petitioner stated that he did not know whether he had actually shot Marin. Later that night,

petitioner ran into Twig. He again asked where the car was, and Twig said he did not know.

Petitioner asked where Marin was. Twig said that he had spoken with Marin’s wife and he was at

home. Twig told petitioner that the police were looking for him, so petitioner went to Chicago.

Petitioner stated he was scared and started moving from city to city, eventually ending up in

Colorado. He did not mean to kill Marin and wished he could change things so Marin was still

alive.

¶ 34 Petitioner points out that when he filed his pro se postconviction petition, he alleged that

the interrogating detectives ignored his requests for an attorney, they slapped him two or three

times, and they threatened him with a severe sentence and promised leniency. These allegations

were supported by affidavits from petitioner and his mother. Petitioner also submitted a motion

to suppress drafted by his original attorney (Green). In the amended motion submitted by

postconviction counsel, counsel did not include the allegations that petitioner had been slapped or

that he had been threatened with a severe sentence if he refused to cooperate and promised leniency

if he cooperated. It simply stated that petitioner had been physically abused and that petitioner

had asked to speak with an attorney. The motion drafted by Green was not attached to the petition.

A new affidavit from petitioner was attached in which he stated that he discussed filing a motion

to suppress with Green and that he urged Clark to file it. The affidavit does not contain averments

about petitioner being slapped during the interrogation.

¶ 35 Petitioner argues, “Thus, the amended petition contained no factual allegations of physical

abuse or mental coercion,” which, according to petitioner, is “a prerequisite for surviving second-

stage review.” He cites People v. Cox, 136 Ill. App. 3d 623 (1985), in support. Cox stands for the

proposition that “[m]ere conclusory allegations that constitutional rights have been violated are

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insufficient to entitle petitioner to an evidentiary hearing,” Id. at 628 (quoting People v. Graham,

48 Ill. App. 3d 689, 692 (1977)). The Cox court explained, “The petition or accompanying

affidavits must identify with reasonable certainty the sources, character and availability of the

alleged evidence supporting the petitioner’s allegations.” Id. It ultimately held that the “petitioner

[in that case] made only vague allegations and conclusions which did not constitute a substantial

showing of a constitutional violation.” Id.

¶ 36 Here, postconviction counsel omitted petitioner’s affidavit substantiating that he had been

slapped by the police, threatened, and promised leniency. He replaced this with an affidavit simply

stating that petitioner’s fifth amendment rights had been violated, with no further explanation. The

amended petition stated only that petitioner had been “physically threatened and abused by the

police.” We find sound guidance for resolving this issue in People v. Johnson, 154 Ill. 2d 227

(1993). In Johnson, the petitioner alleged that the testimony of three probation officers would

have corroborated his testimony that he was arrested at 1 p.m. rather than much later during the

day of his arrest after probable cause developed (the timing of the arrest had relevance to a motion

to suppress). The petitioner asserted that postconviction counsel did not fulfill his duties under

Rule 651(c) in that counsel failed to obtain affidavits from the parole officers and attach it to the

postconviction petition. Id. at 242. Postconviction counsel conceded that he failed to investigate

this claim. Id. at 242-43. Our supreme court found that Rule 651(c) had been violated:

We conclude that post-conviction counsel’s statements during arguments on the

State’s motion to dismiss, together with his concessions in the affidavit submitted to this

court, clearly demonstrate that Supreme Court Rule 651(c) was not complied with here.

As stated, that rule requires the record on appeal to show that counsel made any

amendments to the pro se petition which were ‘necessary for an adequate presentation of

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petitioner's contentions.’ [Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984).] Here,

counsel simply copied an allegation raised in the pro se petition. He concedes that he made

no effort to contact the witnesses specifically identified in the pro se petition, or to amend

the petition with affidavits of such witnesses. In such circumstances, we must conclude

that counsel failed to adequately comply with Supreme Court Rule 651(c).” Id. at 243.

In this case, postconviction counsel’s failure was even more egregious. It would have required no

investigation for counsel to provide factual support for this claim; affidavits from petitioner and

his mother were already in the record. Indeed, counsel actually amended petitioner’s pro se

petition and removed petitioner’s specific reference to being slapped by the police during the

interrogation in Colorado. Like the Johnson court, “we must conclude that counsel failed to

adequately comply with Supreme Court Rule 651(c).” Id.

¶ 37 In short, postconviction counsel failed to fulfill his duties in accordance with Rule 651(c)

with respect to this claim.

¶ 38 2. Res Judicata

¶ 39 In support of his claim that postconviction counsel rendered ineffective assistance,

petitioner next points to the fact that postconviction counsel raised a claim that was barred by

res judicata. On direct appeal, the sole issue addressed was whether petitioner’s conviction should

be reduced from first-degree murder to second-degree murder “because the evidence demonstrates

that the shooting occurred as a result of serious provocation by Marin.” Barmore, slip order at 9.

This court rejected the claim. Postconviction counsel included in the petition a claim that trial

counsel was ineffective for failing to argue and seek an instruction that petitioner was guilty of

only second-degree murder based on the existence of a serious provocation.

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¶ 40 As noted, one element a party alleging ineffective assistance must prove is that he or she

was prejudiced by the alleged omission. Tate, 2012 IL 112214, ¶ 18. We fail to see how counsel’s

decision to include this claim prejudiced petitioner. Had counsel not raised this claim, the outcome

of postconviction proceedings would not have been different. That is, not raising the claim would

not have resulted in it advancing to third-stage proceedings.

¶ 41 Nevertheless, petitioner suggests that this deficiency “raises serious questions as to the

adequacy of postconviction counsel’s representation and ability to present other potentially

meritorious claims based on evidence outside the record.” As noted, Rule 651(c) requires counsel

to certify that he or she has examined the record. Marshall, 375 Ill. App. 3d 670, 680 (2007); Ill.

S. Ct. R. 651(c) (eff. Feb. 6, 2013). Given a familiarity with the record, it is unclear why an

attorney would raise a precluded claim. Counsel’s attempt to explain why this occurred during

argument before the trial court demonstrates an unfamiliarity with the record. Counsel argued that

had this issue been raised at trial, additional evidence may have been developed of record to

support this theory. If such additional evidence existed outside the record, it was counsel’s duty

to supplement the record with evidence or affidavits to support this claim. Wideman, 2013 IL App

(1st) 102273, ¶ 15. Absent such supplementation, counsel’s concession during argument that no

evidence existed in the record to support it calls into question counsel’s decision to include it in

the amended petition in the first place. “To ensure that defendants receive this level of assistance,

Rule 651(c) imposes specific duties on appointed counsel and requires the record to disclose that

counsel has fulfilled those duties.” (Emphasis added.) People v. Shelton, 2018 IL App (2d)

160303, ¶ 28. Here, the record suggests otherwise and undermines counsel’s averment that he

conducted an adequate examination of the record.

¶ 42 3. Emerging-Adult Claim

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¶ 43 Petitioner next argues that postconviction counsel rendered unreasonable assistance

because counsel did not amend the postconviction petition to allege an emerging-adult claim. In

Miller v. Alabama, 567 U.S. 460, 489 (2012), the United States Supreme Court held that it was

unconstitutional to impose upon a juvenile offender a sentence of life without the possibility of

parole without considering the juvenile’s youth. In People v. Buffer, 2019 IL 122327, ¶ 40, our

supreme court held that a sentence of over 40 years’ imprisonment constitute a de facto life

sentence for a juvenile. In People v. House, 2021 IL 125124, a defendant who was 19 at the time

of the offense at issue was sentenced to a term on natural life. Our supreme court rejected a facial

challenge to the sentence. Id, ¶ 31. However, it determined that it could not address an as-applied

challenge without the development of an evidentiary record. Id. Specifically, it sought “evolving

science on juvenile maturity and brain development [that] applies to his specific facts and

circumstances.” Id. ¶ 29. It follows, then, that petitioner, who was 19 years old at the time of the

offense at issue here, could have asserted a similar challenge, had counsel raised it in the amended

petition.

¶ 44 The question remains as to whether postconviction counsel’s failure to include this claim

constituted a failure of his duties under Rule 651(c). The plain language of that rule dictates that

counsel make “any amendments to the petitions filed pro se that are necessary for an adequate

presentation of petitioner’s contentions.” (Emphasis added.) The rule states nothing about raising

claims beyond those raised by the petitioner in his or her pro se petition. Thus, our supreme court

explained, “While postconviction counsel may conduct a broader examination of the record

[citation] and may raise additional issues if he or she so chooses, there is no obligation to do so.”

(Emphasis in original.) People v. Pendleton, 223 Ill. 2d 458, 476 (2006). Here, the emerging-

adult claim petitioner now seeks to advance was not mentioned in his pro se petition. Accordingly,

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we cannot find that postconviction counsel rendered unreasonable assistance to petitioner by not

raising it.

¶ 45 Petitioner argues for a contrary result, citing People v. Jennings, 345 Ill. App. 3d 265

(2003). In that case, the court found that postconviction counsel did not render reasonable

assistance when he failed to include a disparate sentencing claim in the amended postconviction

petition. Id. at 274-75. The court explained:

“We are mindful that a defendant is not entitled to the advocacy of postconviction

counsel for purposes of ‘exploration, investigation[,] and formulation of potential claims.’

[Citation.] Although [the] defendant’s pro se postconviction petition did not explicitly

claim that an arbitrary and unreasonable disparity existed between his 60-year sentence and

[a co-defendant’s] 56-year sentence, the substance of his ineffective assistance claim and

the allegations therein clearly showed that [the] defendant wanted to challenge his

sentence. Indeed, at the August 2001 hearing on [the] defendant’s postconviction petition,

[postconviction counsel] acknowledged that the petition effectively raised a challenge to

[the] defendant’s sentence. Further, this was not a case where [postconviction counsel]

would have had to comb through the entire record to discern this claim. Instead, the

September 1999 letter from [trial counsel] to [the] defendant’s mother, which

[postconviction counsel] used to supplement [the] defendant’s petition, suggested a

disparate sentencing claim by specifically stating that ‘while it is true that [the defendant]

received the most time, you must remember that all [the] defendants were sentenced by

different judges.” (The record shows that in January 1999, [the co-defendant], who was

by all accounts the primary moving force behind [the] murder, received a 56-year sentence

for first degree murder.) [Citation.] Under these particular circumstances, [postconviction

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counsel] should have amended [the] defendant’s pro se petition to allege a disparate

sentencing claim.” Id. at 274-75.

Petitioner attempts to analogize this case to Jennings. He first notes that one of the factors the

Jennings court considered in finding that counsel had an affirmative obligation to raise the

disparate sentencing claim was that the defendant in that case had challenged his sentence in his

pro se petition. Petitioner contends that this case is similar because petitioner “like the defendant

in Jennings, challenged the length of his sentence.” By this petitioner means that he “would have

accepted the State’s plea offer for a 20-year sentence had he known about the mandatory minimum

45-year sentence for personal discharge of a firearm causing death.” This, however, is not a

challenge to the sentence imposed; rather, it is a challenge to the voluntariness of petitioner’s guilty

plea. As such, the disparate sentencing claim in Jennings was arguably within the scope of the

allegations of the defendant’s pro se petition; while here, petitioner’s emerging-adult claim cannot

reasonably be construed to be within the scope of petitioner’s challenge to his plea. Thus, Jennings

is actually distinguishable on this basis. While we agree with petitioner that the emerging-adult

claim was readily apparent and would not have required counsel to “comb through the entire

record” (Id. at 274), we do not believe that this is sufficient to impose on counsel a duty to raise

an issue that was outside the scope of petitioner’s allegations in his pro se petition. See People v.

Perry, 2017 IL App (4th) 150587, ¶ 26.

¶ 46 Accordingly, we find no basis to find postconviction counsel’s representation of petitioner

unreasonable on this issue.

¶ 47 4. Speedy Trial and Compulsory Joinder

¶ 48 Petitioner next faults postconviction counsel for not raising a claim that trial “counsel did

not move to strike the second indictment on the grounds that it violated [his] right to a speedy trial

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or compulsory joinder.” Initially, we note that petitioner sufficiently raised this claim in his pro se

postconviction petition. In it, he alleged that his constitutional rights were violated when the State

filed a superseding indictment that included a firearm enhancement. Defendant styled this as an

ex post facto violation. However, it is well-established that a pro se petitioner need not cite legal

authority in his or her petition. People v. Edwards, 197 Ill. 2d 239, 244 (2001). Pro se petitions

are to be given a liberal construction. People v. Thomas, 2014 IL App (2d) 121001, ¶ 48. We

deem it sufficient that petitioner raised the issue, albeit citing an incorrect legal theory. See People

v. Hodges, 234 Ill. 2d 1, 21 (2009) (“Where defendants are acting pro se, courts should review

their petitions ‘with a lenient eye, allowing borderline cases to proceed.’ [Citation.] In the case at

bar, the issue of whether defendant’s pro se petition, which focused on self-defense, could be said

to have included allegations regarding ‘unreasonable belief’ second-degree murder—i.e.,

imperfect self-defense—is at minimum the type of ‘borderline’ question which, under a liberal

construction, should be answered in defendant’s favor.”). Petitioner further points out that he filed

a section 2-1401 petition (735 ILCS 5/2-1401 (West 2010)), asserting that the superseding

indictment was void on speedy trial and compulsory joinder grounds. Postconviction counsel’s

Rule 651(c) affidavit states that he reviewed the record, so he would have been aware of this

petition.

¶ 49 Moreover, as previously noted, Rule 651(c) mandates that counsel aver that he or she “has

made any amendments to the petitions filed pro se that are necessary for an adequate presentation

of petitioner’s contentions.” The claim at issue here was not included in the amended

postconviction petition. Before proceeding further, we re-emphasize that our analysis focuses not

on the underlying merits of this claim; rather, we must consider whether the assistance counsel

rendered with regard to it complied with Rule 651(c). Suarez, 224 Ill. 2d at 47.

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¶ 50 If amended, petitioner’s allegations could have been the basis of a potentially viable claim.

In People v. Quigley, 183 Ill. 2d 1 (1998), our supreme court considered the interplay between

compulsory joinder (720 ILCS 5/3-3 (West 2002)) and speedy-trial (725 ILCS 5/103-5 (West

2002)) principles. In that case, the State charged the defendant in separate prosecutions with

misdemeanor and felony driving under the influence (DUI) offenses based on a single incident.

Id. at 3. The misdemeanor charges were dismissed on speedy-trial grounds. Id. The court noted,

“Where new and additional charges arise from the same facts as did the original charges and the

State had knowledge of these facts at the commencement of the prosecution, the time within which

trial is to begin on the new and additional charges is subject to the same statutory limitation that is

applied to the original charges.” Id. at 13 (quoting People v. Williams, 94 Ill. App. 3d 241, 248-

49 (1981)). It ultimately found that since the two charges had to be brought together, the felony

DUI charge, like the misdemeanor charge, was barred on speedy-trial grounds. See also People v.

Van Schoyck, 232 Ill. 2d 330, 340 (2009) (“We hold, therefore, that defendant’s speedy-trial

demand filed with respect to the offenses charged by complaint was applicable to the same offense

refiled by the State in its information.”).

¶ 51 The parties dispute whether the superseding indictment was filed within the period allowed

by the speedy-trial statute (725 ILCS 5/103-5 (West 2002)); however, as noted, whether

petitioner’s claim would succeed on the merits is not relevant at this point (Suarez, 224 Ill. 2d at

47). The State attempts to distinguish Van Schoyck and Quigley by pointing out that in this case,

unlike those two, “the charges were continuously pending.” Having reviewed both cases, we find

nothing in them to suggest that this fact was significant. Indeed, Quigley flatly states, “The

aggravated DUI charge was essentially a new and additional charge that should have been brought

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with the misdemeanor DUI charge and was subject to the same speedy-trial limitation.” Quigley,

183 Ill. 2d at 16. No mention is made of whether the original charge was subsequently dismissed.

¶ 52 The State also questions whether the addition of the firearms enhancement in the

superseding indictment amounted to the addition of a new charge. The State cites no authority in

support of this proposition, and Quigley teaches otherwise. Initially, in this case, petitioner was

charged with four counts of first-degree murder (See 720 ILCS 5/9-1 (West 2002)). None of the

counts included a sentencing enhancement based on the use of a firearm. See 730 ILCS 5/5-8-1

(West 2002)). Subsequently, the State filed a superseding indictment that included a sentencing

enhancement of 25-years imprisonment for personally discharging a firearm causing death. See

730 ILCS 5/5-8-1(1)(d)(iii) (West 2002)). In Quigley, the defendant was originally charged with

misdemeanor and felony DUI in separate prosecutions, and the misdemeanor charge was dismissed

on speedy-trial grounds. Quigley, 183 Ill. 2d at 3. One issue before the court was whether the

compulsory joinder rule required that the felony count be joined with the misdemeanor charge (if

so, it would also be subject to dismissal on speedy-trial grounds). Id. at 7. The court concluded

that it did, explaining:

“Under section 11-501(d)(3) [(625 ILCS 5/11-501(d)(3) (West 1992)], aggravated DUI

occurs when an individual commits some form of misdemeanor DUI, in violation of

paragraph (a), and other circumstances are present. The legislature added aggravating

factors that change the misdemeanor DUI to a Class 4 felony. The essential and underlying

criminal act, however, remains the same: driving while under the influence.” Id. at 10.

The same logic applies here. Petitioner was charged with first-degree murder. He was later

charged with first-degree murder with an aggravating circumstance. Regardless of whether this

superseding indictment involved a new charge, Quigley teaches the compulsory joinder rule

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applies (Id. at 10), and, in turn, it is subject to the same speedy-trial limitations as the original

charge (Id. at 15-16).

¶ 53 In sum, without regard to the merits of the underlying charge (an issue upon which we

express no opinion), counsel’s failure to amend and present this claim was inconsistent with his

duties under Rule 651(c)

¶ 54 5. Rule 651(c)

¶ 55 In light of the foregoing, we conclude that counsel did not fulfill his duties under Rule

651(c). Postconviction counsel omitted key allegations and supporting affidavits (which were

readily available) regarding petitioner’s claim that his statement was not voluntary. Counsel also

included a claim that was barred by res judicata and explained that the claim might be viable based

on additional evidence that might have been developed, while failing to identify any. This raises

questions about the adequacy of counsel’s review of the record, which is required by Rule 651(c).

Finally, counsel failed to amend and include a potentially viable claim based on compulsory

joinder and speedy-trial principles. Under such circumstances, we recently explained, “the

appropriate remedy is to remand this matter for further second-stage proceedings, at which the

circuit court must appoint new counsel who must then comply with Rule 651(c).” People v. Urzua,

2021 IL App (2d) 200231, ¶ 90. We do so here as well.

¶ 56 B. THRID-STAGE PROCEEDINGS

¶ 57 Petitioner also contends that the trial court’s decision that he failed to establish that trial

counsel (Green) was ineffective for failing to properly advise him was error. Specifically,

petitioner asserts that counsel should have properly advised him of the sentencing range he was

facing and of the possibility that the State could bring a superseding indictment with a higher

range. This issue was resolved during third-stage postconviction proceedings. Therefore, the

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following standards apply. During third-stage proceedings, an evidentiary hearing is held and the

trial court acts as the fact-finder. People v. Brown, 2020 Il App (1st) 190828, ¶ 43. The burden is

on the petitioner to show by a preponderance of the evidence that he or she was denied a

constitutional right. Id. Assessing the credibility of evidence, assigning weight to evidence, and

resolving conflicts in the record are primarily matters for the trial court. Id. Accordingly, we

review decisions of the trial court that involve fact-finding or credibility assessments for manifest

error. People v. Carter, 2017 IL App (1st) 151297, ¶ 132. “Manifest error” is error that is “clearly

plain, evident, and indisputable.” People v. Taylor, 237 Ill. 2d 356, 373 (2010). Where no such

determinations are involved and only issues of pure law are involved, review is de novo. Carter,

2017 IL App (1st) 151297, ¶ 132.

¶ 58 Petitioner is currently serving a 45-year sentence for first-degree murder—a minimum

sentence considering the 25-year enhancement to which he was subjected for personally

discharging a firearm causing death. First-degree murder, with no enhancement, carries a term of

20 to 60 years’ imprisonment. As originally filed, petitioner would have been subject to a 15-year

enhancement for committing the offense while armed with a gun. See People v. White, 2011 IL

109616, ¶ 26. However, the State subsequently filed a superseding indictment, alleging facts that

made petitioner eligible for the 25-year enhancement (at the time petitioner was first indicted, the

constitutionality of the statute was being appealed; after its validity was affirmed, the State filed

the superseding indictment). See 730 ILCS 5/5-8-1(a)(1)(d) (West 2002).

¶ 59 Petitioner testified that he received an offer to plead guilty in exchange for a 20-year

sentence. Petitioner’s first attorney (Green) testified that he recalled the State making an offer of

25 years’ imprisonment and that it was possible that the State offered 20 years’ imprisonment as

well, though he did not specifically recall it and could not locate any relevant notes. He also stated

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that he would not have advised petitioner of the potential sentencing enhancement. Petitioner

testified that he rejected the State’s offer of 20 years. Petitioner asserts that he would have accepted

the State’s offer had he been properly advised by trial counsel of the enhancements he faced. He

asserts that counsel was ineffective for not advising him of the possibility of the State filing the

superseding indictment and invoking the 25-year enhancement.

¶ 60 Petitioner further argues that, irrespective of the superseding indictment, he was improperly

advised of the sentence he was facing. Petitioner points out that the trial court stated, in open

court, that the sentencing range for the offense petitioner was charged with was 20 years’ to 60

years’ imprisonment. The State agreed that this was the correct sentencing range. The trial court

then reiterated to petitioner that the maximum sentence petitioner faced was 60 years’

imprisonment. However, petitioner points out that, as charged, he was subject to a mandatory 15-

year sentencing enhancement for using a firearm during the commission of the murder. See 730

ILCS 5/5-8-1(d)(i) (West 2002). In White, 2011 IL 109616, ¶ 26, our supreme court held that the

15-year enhancement was mandatory. Thus, at the time he rejected the State’s plea offer, petitioner

asserts, he was subject to a sentencing range of 35 years’ to 75 years’ imprisonment and the State

could possibly file a superseding indictment invoking the 25-year enhancement. His attorney did

not inform him of either of these facts. We also note that the initial allegations included an

assertion that petitioner’s actions were accompanied by brutal and heinous behavior, which would

have made petitioner eligible for a natural-life sentence. See 730 ILCS 5/5-8-1(a)(1)(b) (West

2002).

¶ 61 When a petitioner alleges he received ineffective assistance of counsel, the following

familiar standards apply. To succeed on such a claim, a petitioner must show “both that counsel’s

performance was deficient and that the deficient performance prejudiced the defendant.” People

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v. Colon, 225 Ill. 2d 125, 135 (2007). The first prong requires a showing that counsel’s

performance was objectively unreasonable in light of prevailing professional norms. Id. To satisfy

the second prong, a petitioner must establish that there is a reasonable probability that, but-for

counsel’s errors, the outcome of the proceeding would have been different. Id. When the claim

concerns counsel’s representation pertaining to the rejection of a plea offer, a petitioner “must

establish that there is a reasonable probability that, absent his attorney’s deficient advice, he would

have accepted the plea offer.” People v. Hale, 2013 IL 113140, ¶ 18. Moreover, “a defendant’s

self-serving claims are not adequate; there must be independent, objective confirmation that the

plea offer was rejected based on counsel’s erroneous advice and not on other considerations.”

People v. McGee, 2021 IL App (2d) 190040, ¶ 33.

¶ 62 The trial court found that petitioner satisfied neither prong. Regarding the first prong, the

trial court found that trial counsel had rendered adequate representation by informing petitioner of

the sentencing range for the offenses as charged and that counsel had no obligation to inform

petitioner that the charges could be amended. It noted that the State had represented to trial counsel

that it was seeking 20 to 60 years’ imprisonment and trial counsel had no reason to expect that the

State would re-indict petitioner. It further noted that the constitutionality of the gun enhancement

was being challenged at the time the plea offer was made. The trial court held that counsel’s

performance was reasonable in that counsel informed petitioner of the penalties for the crimes that

was actually charged with.

¶ 63 As for the second prong, the trial court found that petitioner had failed to establish

prejudice. The trial court first found that there had been no offer made of 20 years’ imprisonment.

It found petitioner’s testimony incredible on this point, stating, “[h]is claim is self-serving and

unsupported by evidence.” It noted that petitioner never testified that he would have accepted a

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25-year offer. Further, it cited trial counsel’s testimony that petitioner sought a lesser offense with

a lower sentencing range. The trial court, assuming, arguendo, that there had been an offer of 20

years, found that petitioner had not established that he would have accepted it. It noted that

petitioner rejected trial counsel’s urging to accept the 25-year offer, adding that petitioner would

not consider pleading guilty to first-degree murder. It observed that second-degree murder and

involuntary manslaughter instructions were given at petitioner’s request.

¶ 64 We will address the second prong of the inquiry. It is well-established that a petitioner

must satisfy both prongs of this test. People v. Griffin, 178 Ill. 2d 65, 74 (1997). We may address

either prong first, and if we resolve it against the petitioner, we need not address the other prong.

Id. We conclude that the trial court’s finding the petitioner failed to establish that he would have

accepted the State’s plea offer had he been advised that he was facing a sentence of 35 to 75 years’

imprisonment and that the State could file a superseding indictment increasing that range to 45 to

85 years’ imprisonment is not manifestly erroneous.

¶ 65 Initially, we note that the trial court’s finding that the offer extended by the State was 25

years’ imprisonment rather than 20 years’ imprisonment was not manifestly erroneous. The only

evidence supporting the latter was petitioner’s testimony (trial counsel (Green) neither confirmed

nor contradicted petitioner’s testimony on this point), which the trial court could reasonably reject

as self-serving. Moreover, as the trial court noted, petitioner did not testify that he would have

accepted a 25-year offer. Petitioner argues that the difference between a 25-year offer and a 20-

year offer is “barely relevant, if at all.” He points out that he executed an affidavit after the third-

stage hearing stating the trial court never communicated the 25-year offer to him and he would

have accepted it too. However, the only thing supporting this claim is, again, petitioner’s self-

serving testimony. In a sense, though, petitioner is correct, the difference between the two

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purported offers has little relevance. Given that the trial court found that petitioner failed to

establish he would accept an offer of 20 years, it follows that an offer of more time served would

have also been rejected.

¶ 66 Indeed, the trial court found that the evidence indicated that petitioner sought a conviction

for a lesser offense and that he therefore would not accept a plea that involved first-degree murder.

This was supported by the fact that instructions for second-degree murder and involuntary

manslaughter were given at petitioner’s behest. The trial court further stated that petitioner

rejected the 25-year offer despite trial counsel’s urgings that he accept it. Thus, this finding is

supported by the record.

¶ 67 Petitioner contends that the trial court erred in finding him incredible. We pause for a

moment to recall the burden of proof. During third-stage proceedings, it is the petitioner’s burden

to make “a substantial showing of a constitutional violation.” Pendleton, 223 Ill. 2d at 473. Thus,

it is insufficient for petitioner to prevail even if the trial court arguably erred in finding him

incredible. Rather, petitioner must establish that he was credible to the extent that it would have

been manifestly erroneous for the trial court to reject his testimony. Petitioner has not met this

burden. Quite simply, there is evidence of record that petitioner was seeking a conviction for a

lesser offense, including the instructions requested and trial counsel’s testimony that petitioner

rejected the 25-year offer despite counsel’s urgings to the contrary. Given this finding has

evidentiary support in the record, it is not manifestly erroneous.

¶ 68 Petitioner argues that it could be both true that he wished for a conviction of a lesser offense

and that he would have nevertheless accepted the 25-year offer. He continues that as the potential

penalties increased, he “may have made a different decision had he known that a guilty verdict, as

charged, would subject him to a substantially longer mandatory minimum sentence.” While this

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may be true, it may not have been the only factor petitioner considered. For example, the likelihood

of a conviction of a lesser crime could inform the analysis. If petitioner believed it likely that he

would be convicted of a lesser offense, perhaps the sentencing range he was facing would not have

been a significant factor. The salient point is this: given that petitioner bears the burden of

establishing a constitutional violation (Pendleton, 223 Ill. 2d at 473), such uncertainty weighs

against him. Because of the burden of proof, petitioner’s assertion that no one testified that he

would not have accepted the 25-year offer had he been aware of the potential of an enhanced

sentence is misplaced.

¶ 69 In short, there was evidence that supported the trial court’s decision on this issue, and

petitioner has not established that it was manifest error to accept that evidence and reject his

testimony.

¶ 70 III. CONCLUSION

¶ 71 In light of the foregoing, we reverse the judgment of the circuit court dismissing

petitioner’s postconviction petition after second-stage proceedings and remand for further

proceedings. On remand, the trial court must appoint new counsel for petitioner. See People v.

Schlosser, 2017 IL App (1st) 150355, ¶ 36. We affirm the trial court’s denial of petitioner’s claims

following third-stage proceedings.

¶ 72 Affirmed in part and reversed in part; cause remanded with directions.

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