People v. Jenkins

2025 IL App (1st) 231486-U

SECOND DIVISION

May 13, 2025

No. 1-23-1486

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 12CR15200

)

CARLOS JENKINS, ) Honorable

) Charles P. Burns,

Defendant-Appellant. ) Judge Presiding.

_____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Van Tine and Justice Howse concurred in the judgment.

ORDER

¶1 Held: (1) The trial court’s denial of defendant’s petition for postconviction relief was

not manifestly erroneous where his trial counsel was not ineffective for failing to

cross-examine a witness about defendant’s inculpatory statement; and (2) his

postconviction counsel provided reasonable assistance.

¶2 Defendant Carlos Jenkins appeals from the trial court’s denial of postconviction relief

following a third-stage evidentiary hearing. Specifically, he argues that the trial court erred in

denying his petition for postconviction relief because he established by a preponderance of the

evidence that his trial counsel was ineffective. Additionally, defendant contends that his

postconviction counsel provided unreasonable assistance.

No. 1-23-1486

¶3 Following a bench trial, defendant was convicted of armed robbery and subsequently

sentenced to a term of 25 years in the Department of Corrections. The following facts, taken

from defendant’s direct appeal, are discussed to the extent necessary to resolve the issues on

appeal. See People v. Jenkins, 2016 IL App (1st) 141673-U.

¶4 At trial, Brian Green testified that on July 15, 2012, he was working at an adult novelty

store on West Randolph Street in Chicago. Around 11 a.m., defendant entered the store and

approached the counter. Defendant then “pulled out a gun” and demanded money. Green described

the firearm as black with a brown handle. While Green was opening the cash register, defendant

said, “ ‘Hurry up or I’ll shoot you.’ ” Green removed money from the cash register and handed it

to defendant, who then left the store. Green contacted the police, spoke to officers, and told them

that the store had a video surveillance system. He later identified defendant in a lineup, as well as

in open court. Green identified himself and defendant in footage from the surveillance system

and in a still photograph from the footage which he testified showed “defendant with a gun in his

hand.” While at the cash register, Green stood behind a “stomach high” counter, but he was able

to observe defendant draw the firearm because defendant “stepped back.” The firearm was

pointed at Green “[b]riefly,” for only one or two seconds.

¶5 Detective Robert Smith from the Chicago police department spoke with defendant on

July 26, 2012, at a police station. Detective Smith advised defendant of his Miranda rights and

defendant indicated that he understood his rights. When the State asked the detective if defendant

made an “inculpatory statement,” Detective Smith answered in the affirmative. Detective Smith

was present when Green identified defendant in the lineup. Trial counsel did not cross-examine

Smith.

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¶6 In his closing argument, trial counsel argued there was “nothing in the evidence” to

indicate that defendant was armed with a firearm or even a dangerous weapon. Green supplied

“no details” about the object, no firearm was recovered, and the video and photograph did not

clearly show the object in defendant’s hand. Counsel concluded that the State could not meet its

burden based solely on Green’s “vague” description and asked the court to find defendant guilty

of the lesser-included offense of robbery. The State responded that Green observed the firearm

and heard defendant say to hurry up or be shot and that evidence, combined with the video and

photograph, was sufficient to establish that defendant possessed a firearm.

¶7 The trial court found defendant guilty of armed robbery. In its factual findings, the court

acknowledged there was not an “extensive” description of the firearm, but that Green described

it as black with a brown handle and “unequivocally” stated it was a firearm. The court concluded

that defendant’s threat to shoot Green and his actions on the video indicated he was not holding

“something innocent” like a “plastic gun or piece of metal.” The court noted that “[t]here was

nothing in the record that indicated it was something other than a gun.”

¶8 On direct appeal, defendant argued that his conviction should be reduced to simple

robbery because the State failed to prove that he was armed with a firearm. This court affirmed

defendant’s armed robbery conviction. See Jenkins, 2016 IL App (1st) 141673-U.

¶9 Defendant filed his pro se postconviction petition in May 2018, raising multiple claims,

including an allegation that his trial counsel was ineffective for failing to cross-examine

Detective Smith regarding the content of defendant’s inculpatory statement. According to

defendant, he admitted in his statement to Detective Smith that while he was the perpetrator of

the robbery, the firearm he displayed was a plastic toy gun. He further asserted that his appellate

counsel was ineffective for failing to raise this claim on direct appeal. In support, defendant

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No. 1-23-1486

attached handwritten and typed summaries of his statement. The handwritten summary was part

of a “General Progress Report” by the Chicago police department detective division and

indicated that defendant robbed a cashier and displayed a “toy/replica gun” during the offense. In

the typed summary, defendant told Detective Smith and an assistant State’s Attorney that he

robbed the store with a “plastic toy gun” because he needed money for crack.

¶ 10 In August 2018, the trial court summarily dismissed the petition as frivolous and patently

without merit in a written order, finding that even if defendant’s statements were admissible,

“there is no arguable probability the outcome would have been different had counsel elicited

[defendant’s] statement he used a toy gun.” Defendant appealed and this court reversed the

summary dismissal and held that defendant had set forth an arguable claim for ineffective

assistance of counsel. People v. Jenkins, 20221 IL App (1st) 182118-U, ¶ 20. We remanded for

further proceedings under the Illinois Post-Conviction Hearing Act (the Post-Conviction Act)

(725 ILCS 5/122-1 through 122-8 (West 2020)).

¶ 11 During second-stage proceedings, the trial court appointed counsel to represent

defendant. Postconviction counsel did not amend defendant’s postconviction petition. However,

counsel filed the mandated certificate pursuant to Supreme Court Rule 651(c) (Ill. S. Ct. R.

651(c) (eff. Feb. 6, 2013)). Counsel averred that she had reviewed the following: the trial file

from the public defender; the court file, specifically looking for any pretrial motions for

discovery and motions for a new trial; and all laws relating to accountability and extended

sentences, as well as the laws for armed robbery. The State moved to dismiss defendant’s

petition and argued, in relevant part, that defendant’s claim of ineffective assistance was without

merit. Following briefing, the trial court advanced defendant’s ineffective assistance claim of

trial and appellate counsel for trial counsel’s failure to cross-examine Detective Smith about

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No. 1-23-1486

defendant’s inculpatory statement to a third stage evidentiary hearing and dismissed all other

remaining claims.

¶ 12 At the evidentiary hearing, postconviction counsel informed the trial court that defendant

wanted to withdraw all claims because he did not want to proceed with the hearing. The court

then asked defendant about why he wanted to withdraw his claims, and defendant told the court

that he did not believe he could “get any justice here in this courtroom.” The trial court stated

that it was going to proceed with the hearing. After defendant indicated that he did not want to be

present in the courtroom, the court placed defendant in lockup and allowed him to watch the

hearing via a Zoom video conference.

¶ 13 The evidence presented at the hearing was testimony from defendant’s trial counsel as a

witness for the State, which established the following. In 2013, trial counsel was assigned to the

felony trial division in the Cook County Public Defender’s office. He was with this division for a

little over 11 years and participated in approximately 30 jury trials and at least 100 bench trials.

He had never been found to be ineffective in his representation of any client. He represented

defendant at a bench trial held in December 2013. Trial counsel reviewed the trial transcripts

before his testimony, as well as this court’s decision remanding for further postconviction

proceedings and the trial court’s order advancing this claim for an evidentiary hearing. Counsel

had an independent recollection of his representation of defendant who had been charged with

two armed robberies with a firearm that occurred on the same day, the first at an adult store and

the second at a Dunkin’ Donuts. He recalled the case because it was unusual to conduct a bench

trial on the elected case and follow with a jury trial on the nonelected matter after losing the first

trial.

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¶ 14 Trial counsel testified that his theory at trial was that “the State could not prove beyond a

reasonable doubt that [defendant] was using a firearm during the commission of the offense.”

Counsel’s defense sought to avoid the firearm enhancement. Counsel explained his strategy was

based on the State’s failure to prove the presence of the firearm because no firearm was

recovered, the video of the incident showed that “the object that the perpetrator produced in their

hand was only above the counter for a few seconds at most,” and Green described “something

that was brown and black that he thought looked like a gun.”

¶ 15 Trial counsel was aware of defendant’s statement to police in which he admitted to

committing the robberies but used a toy gun. Counsel “did not consider trying to introduce the

statement in any way.” He was pursuing a reasonable doubt argument based on a lack of

evidence as a defense and “was not attempting to prove what was used during the robbery, just

that the State couldn’t prove what was used.” When asked by the trial court if there was any

conversation with defendant about introducing his statement to police, counsel responded:

“I remember that the State, I guess, asked about an inculpatory statement because

I didn’t think that they were attempting to introduce any statement at trial so when

that did occur I guess that just caught me off-guard a little bit but I did not

consider attempting to cross-examine the detective about the rest of the statement

regarding the toy gun. It was a bench trial so I didn’t see any evidentiary value in

attempting to introduce the fact that it was a toy gun as stated by the defendant’s

post-arrest. [Sic.] Like I said I was arguing the lack of evidence, not what the

defendant said it was after he was arrested.”

¶ 16 At arguments, postconviction counsel waived argument and reserved rebuttal. The State

argued that defendant could not establish that trial counsel was ineffective by a preponderance of

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No. 1-23-1486

the evidence and recounted counsel’s testimony about his defense strategy. Postconviction

counsel declined to argue in rebuttal.

¶ 17 In August 2023, the trial court entered its written order denying defendant’s

postconviction petition. The court found that defendant failed to establish his ineffectiveness

claim by a preponderance of the evidence. Specifically, the court concluded that “it was a

reasonable and sound strategy for [trial counsel] to attempt to prove the State could not prove

beyond a reasonable doubt [defendant] was armed with any gun during the commission of the

offense.” Further, the court found defendant did not suffer any prejudice because the trial court

“primarily based its finding of guilt on the victim’s testimony and video evidence; there was no

mention in the ruling of Smith’s testimony or [defendant’s] inculpatory statement. Thus, it

cannot be said the introduction of the statement mentioning the toy or plastic gun would likely

have changed the result at trial.”

¶ 18 On appeal, defendant argues that the trial court erred in denying his postconviction claim

of ineffective assistance of counsel following an evidentiary hearing. Specifically, he contends

“there was a reasonable chance” that he would have been convicted of aggravated robbery, rather

than armed robbery, had trial counsel elicited defendant’s statement admitting that he used a toy

gun during the commission of the robbery. The State maintains that the trial court’s findings

were not manifestly erroneous, and the court properly dismissed the petition.

¶ 19 The Post-Conviction Act provides a tool by which those under criminal sentence in this

state can assert that their convictions were the result of a substantial denial of their rights under

the United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West

2020); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to

constitutional deprivations that occurred at the original trial. Id. at 380. “A proceeding brought

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No. 1-23-1486

under the [Post-Conviction Act] is not an appeal of a defendant’s underlying judgment. Rather, it

is a collateral attack on the judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999). This appeal

comes to us following a third-stage evidentiary hearing under the Post-Conviction Act.

¶ 20 At the evidentiary hearing, “the circuit court serves as the fact finder, and, therefore, it is

the court’s function to determine witness credibility, decide the weight to be given testimony and

evidence, and resolve any evidentiary conflicts.” People v. Domagala, 2013 IL 113688, ¶ 34. At

the evidentiary hearing, the defendant bears the burden of proof to show a denial of a

constitutional right by the preponderance of the evidence. People v. Coleman, 2013 IL 113307,

¶ 92.

¶ 21 Generally, because the trial court makes factual and credibility determinations after the

hearing, the court’s decision will not be reversed unless it is manifestly erroneous. People v.

English, 2013 IL 112890, ¶ 23. “ ‘Manifest error’ is error which is clearly plain, evident, and

indisputable.” People v. Taylor, 237 Ill. 2d 356, 373 (2010). Our review of an ineffective

assistance counsel claim following an evidentiary hearing presents a mixed standard of review.

People v. Coleman, 2015 IL App (4th) 131045, ¶ 66. While we accept the trial court’s findings

of fact so long as they are not against the manifest weight of the evidence, we review whether the

facts found by the trial court prove ineffective assistance of counsel de novo. Id.

¶ 22 To demonstrate a claim of ineffective assistance of trial counsel, a defendant must

establish that: (1) his counsel’s performance was deficient, and (2) he suffered prejudice due to

counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate performance deficiency, a defendant must establish that counsel’s performance fell

below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001).

¶ 23 “A defendant is entitled to reasonable, not perfect, representation, and mistakes in

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strategy or in judgment do not, of themselves, render the representation incompetent.” People v.

Fuller, 205 Ill. 2d 308, 331 (2002). “In recognition of the variety of factors that go into any

determination of trial strategy, courts have held that such claims of ineffective assistance of

counsel must be judged on a circumstance-specific basis, viewed not in hindsight, but from the

time of counsel’s conduct, and with great deference accorded counsel’s decisions on review.” Id.

at 330-31 (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Strickland, 466 U.S. at 689).

Further, a mistake in trial strategy or an error in judgment by defense counsel alone will not

render representation constitutionally defective. People v. Peterson, 2017 IL 120331, ¶ 80.

“ ‘Only if counsel’s trial strategy is so unsound that he entirely fails to conduct meaningful

adversarial testing of the State’s case will ineffective assistance of counsel be found.’ ” Id.

(quoting People v. Perry, 224 Ill. 2d 312, 355-56 (2007)).

¶ 24 In evaluating sufficient prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. If a case may be disposed of on the ground of lack of

sufficient prejudice, that course should be taken, and the court need not ever consider the quality

of the attorney’s performance. Strickland, 466 U.S. at 697.

¶ 25 According to defendant, his trial counsel’s representation was deficient because he failed

to cross-examine Detective Smith about defendant’s admission that he robbed the store with a

toy gun. As detailed above, the State elicited from Detective Smith that defendant made an

“inculpatory statement.” No further details of this statement were disclosed during Detective

Smith’s direct testimony and trial counsel did not question him about this statement on cross.

¶ 26 The evidence presented at the evidentiary hearing demonstrated that trial counsel’s

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No. 1-23-1486

decision not to question Detective Smith about the substance of defendant’s inculpatory

statement was part of his trial strategy. Trial counsel explained that his defense strategy was to

challenge whether the State had proven he was armed with a firearm beyond a reasonable doubt.

He focused on the brief time, i.e., a couple of seconds, that the firearm was shown to Green, as

well as the lack of a clear image in the video recording. Counsel’s theory was that this evidence

was insufficient and could only support a finding of simple robbery. He was aware of

defendant’s statement to the detective in which he admitted to committing the robbery but had

used a toy gun. He made a strategic decision not to elicit evidence that defendant had possessed a

toy gun because that was counter to his defense theory. Trial counsel specifically stated, “it was a

beyond a reasonable doubt argument I was making. It was a lack of evidence argument I was

making. I was not attempting to prove what was used during the robbery, just that the State

couldn’t prove what was used.”

¶ 27 The record fully supports defense counsel’s testimony that he pursued the reasonable

doubt defense. In his closing argument, counsel argued that “The State has not met their burden

regarding the fact that this is an armed robbery. There’s nothing in the evidence to indicate that

[defendant] was armed either with a firearm or even a dangerous weapon that day.” Counsel then

discussed Green’s general description of the firearm as black with a brown handle but pointed

out that the description lacked any detail of what it was made of. Counsel observed that in a still

photo from the video one could not “make out clearly what exactly it is in” defendant’s hand.

Counsel further argued that the entire robbery lasted 45 seconds and Green was nervous while

trying to open the cash register. “Most of those 45 seconds if not all but one or two of them was

spent with the register not staring at what was in [defendant’s] hand what he by his own

admission described as [defendant] placed whatever it was he pulled out, it went right back down

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No. 1-23-1486

to his waistband below counter height.”

¶ 28 Our courts have repeatedly held that “[d]ecisions concerning which witnesses to call at

trial and what evidence to present on defendant’s behalf ultimately rest with trial counsel.”

People v. Wilborn, 2011 IL App (1st) 092802, ¶ 79 (citing People v. Munson, 206 Ill. 2d 104,

139-40 (2002)). These types of decisions are considered matters of trial strategy and are

generally immune from claims of ineffective assistance of counsel. Id. It is strategically sound

for counsel not to call a witness whose testimony could potentially harm the defendant’s case.

People v. Marshall, 375 Ill. App. 3d 670, 677 (2007) (citing People v. Guest, 166 Ill. 2d 381, 400

(1995)); compare People v. Bailey, 374 Ill. App. 3d 608, 614 (2007) (defense counsel’s

performance was deficient when counsel elicited inculpatory evidence by questioning if a police

officer saw the defendant speak with an unknown person on the corner and the officer responded

that he saw the defendant speak with the unknown person and saw the defendant give money to

the man).

¶ 29 Defendant asserts that trial counsel pursued an “untenable legal strategy over a viable

one” by leaving the record “devoid of any evidence” that defendant possessed “anything other

than a real gun.” He relies on the decisions in People v. Washington, 2012 IL 107993 and People

v. Malone, 2012 IL App (1st) 110517, for support. In Washington, the supreme court found that

the victim’s unimpeached testimony was sufficient evidence that a defendant was armed with a

gun during his offense. There, the victim was abducted in broad daylight and testified that the

defendant pointed a gun at him, forced him into a truck, and then held a gun to his head while he

sat between the defendant and his accomplice in the front of the truck. Id. ¶ 35. The victim also

testified that the defendant pointed the gun at him when he was later forced into the cargo area of

the truck. Id. According to the Washington court, this evidence established that the victim had an

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No. 1-23-1486

unobstructed view of the weapon defendant had in his possession for several minutes during the

commission of the crimes and the victim testified that it was a gun. Id. Given the victim’s

“unequivocal testimony and the circumstances under which he was able to view the gun, the jury

could have reasonably inferred that defendant possessed a real gun.” Id. ¶ 36. The Washington

court affirmed a conviction for armed robbery where the victim had a clear view of the object

pointed at him and testified that it was a gun, when no gun or gun-like object was recovered and

when the defense argued in its directed finding motion insufficient evidence of a firearm as

charged, and argued to the jury reasonable doubt from the absence of a recovered object. Id. ¶¶

10-11, 15-16, 34-37.

¶ 30 The reviewing court in Malone also considered whether the victim’s testimony was

sufficient to prove he was armed with a firearm. In that case, the defendant robbed a Walgreens

store, and the cashier saw the defendant holding a gun in his right hand, described as “black or

black and silver.” Malone, 2012 IL App (1st) 110517, ¶ 4. When the cashier was asked why she

thought it was a gun, she testified: “ ‘I seen a whole gun. It was rested on the [counter], his hand

was on it, it was black.’ ” Id. ¶ 51. Asked if she had “ ‘ever seen the gun before,’ ” she said, “

‘That was the first one.’ ” Id. She also said that it looked like a gun. Id. A surveillance video

showed the “defendant displaying an object that look[ed] like a gun, which he held in his right

hand.” Id. ¶ 9.

¶ 31 On appeal, the defendant challenged the sufficiency of the evidence, arguing the

prosecution’s case was insufficient to prove that the object in his hand met the statutory

definition of a firearm and did not fit any exceptions. Id. ¶ 41. The defendant noted that the gun

was never recovered, the cashier’s description was lacking in detail, and the video was brief and

blurry. Id. Citing Washington, the Malone court found the cashier’s “unequivocal testimony and

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No. 1-23-1486

the circumstances under which she viewed the gun, coupled with the videotape of the offense

and still photograph, in the light most favorable to the prosecution, any rational trier of fact could

have found beyond a reasonable doubt that defendant was armed with a gun that met the

statutory definition of firearm and convicted him of armed robbery.” Id. ¶ 52.

¶ 32 While we do not disagree with the holdings in Washington and Malone, we fail to see

how they support defendant’s claims here. Further, both cases were direct appeals in which the

defendant was challenging the sufficiency of the evidence. In fact, this court relied on both

decisions in defendant’s direct appeal in which we rejected defendant’s reasonable doubt claim.

See Jenkins, 2016 IL App (1st) 141673-U, ¶¶ 11-12. Here, in this appeal, defendant has

presented a different claim, i.e. trial counsel’s ineffectiveness raised in a postconviction petition.

His reliance on the analysis in those cases is clearly misplaced. In a sufficiency of the evidence

claim, our inquiry is whether any rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. People v. Martin, 2011 IL 109102, ¶ 15. In contrast, on

our review here, we afford great deference to a trial counsel’s defense strategy. See Peterson,

2017 IL 120331, ¶ 80 (a mistake in trial strategy or an error in judgment by defense counsel

alone will not render representation constitutionally defective). The holdings in Washington and

Malone did not address an ineffective assistance claim and did not find that counsel’s chosen

defense strategy was untenable.

¶ 33 At defendant’s trial, the State had the burden of proving beyond a reasonable doubt each

element of an offense. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). Also, it was the

State’s burden to prove that defendant committed the robbery while armed with a firearm.

Defense counsel argued that the State had failed to satisfy that burden. Counsel questioned Green

about his ability to see the firearm for the few seconds the weapon was raised. Counsel pointed

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out that the video did not clearly show what was in defendant’s hand. This was a reasonable

strategy to pursue at trial. A mistake in strategy, when viewed in hindsight, does not render the

representation incompetent. Fuller, 205 Ill. 2d at 331.

¶ 34 Moreover, even if trial counsel’s performance is deficient, defendant must also establish

the requisite prejudice under Strickland. According to defendant, there was a reasonable

probability that the trial court would have convicted him of aggravated robbery, rather than

armed robbery, if trial counsel had questioned Detective Smith about defendant’s inculpatory

statement.

¶ 35 Defendant argues that if trial counsel had clarified the substance of defendant’s

inculpatory statement through Detective Smith, then it would have removed the most damaging

evidence against him, i.e., his confession. He further asserts that this testimony would have

“created a meaningful opportunity” for the trial court to find the object held by defendant did not

meet the statutory definition of a firearm. However, the trial court’s findings did not reference

defendant’s inculpatory statement as a basis for its decision. The court specifically focused on

Green’s testimony, as well as the surveillance video. Notably, the trial judge who presided over

defendant’s bench trial also presided over his postconviction proceedings. In its order denying

postconviction relief, the trial court held as follows.

“Here, it cannot be said [trial counsel’s] actions were unreasonable. As he

stated during the evidentiary hearing, the theory at trial was to attack the State’s

ability to prove [defendant] was armed with a firearm during the commission of

the offense. Therefore, it would have been unreasonable for him to introduce the

portion of [defendant’s] statement about the toy or plastic gun via cross-

examination, as that would have placed some type of gun in [defendant’s] hand

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and that would have contravened the defense at trial. At trial, Green supplied ‘no

details’ about the object, no firearm was recovered, and the video and photograph

did not clearly show the object in [defendant’s] hand. Thus, it was a reasonable

and sound strategy for [trial counsel] to attempt to prove the State could not prove

beyond a reasonable doubt [defendant] was armed with any gun during the

commission of the offense.

Even if it could be said [trial counsel] was unreasonable for not to crossing

Smith and trying to introduce the statement regarding the toy or plastic gun, it

cannot be said [defendant] suffered any prejudice as a result of his actions. In

making a finding of guilt, the circuit court found ‘there was not an “extensive”

description of the firearm, but that Green described it as black with a brown

handle and “unequivocally” stated it was a firearm...The court noted that “[t]here

was nothing in the record that indicated it was something other than a gun.”

Relying on Green’s testimony and the “very clear” video, the court found

defendant guilty of armed robbery with a firearm.’ People v. Jenkins, 2021 IL

App (1st) 182118-U, ¶ 8. As can see [sic], the circuit court primarily based its

finding of guilt on the victim’s testimony and video evidence; there was no

mention in the ruling of Smith’s testimony or [defendant’s] inculpatory statement.

Thus, it cannot be said the introduction of the statement mentioning the toy or

plastic gun would likely have changed the result at trial.”

¶ 36 We agree with the lower court’s reasoning as discussed above. We find trial counsel’s

performance was not deficient and defendant has not established prejudice. Additionally, defense

counsel has not provided any authority which suggests there was a reasonable probability that the

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result would have been different if trial counsel had cross-examined Detective Smith about

defendant’s statement. The trial court’s finding focused on Green’s testimony and the video

evidence, and notably, did not reference Detective Smith’s testimony. Further, to suggest that the

trial court would have found defendant guilty of only robbery is based upon pure speculation.

See People v. Bew, 228 Ill. 2d 122, 135 (2008) (“Strickland requires actual prejudice be shown,

not mere speculation as to prejudice.”). There is no case law or any precedent to suggest the trial

court would have or was required to believe defendant’s statement that he only used a toy gun to

rob the cashier here. We cannot say that the trial court manifestly erred in holding that defendant

had not met his burden. Accordingly, the trial court’s findings on defendant’s claim of

ineffective assistance were not manifestly erroneous.

¶ 37 Defendant next contends that his postconviction counsel provided unreasonable

assistance. Specifically, he asserts that postconviction counsel’s errors in her cross-examination

at the evidentiary hearing and failure to make an argument on defendant’s behalf show that she

did not know the basic facts of defendant’s postconviction claim and contradicted her certificate

filed under Supreme Court Rule 651(c). Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). The State

responds that the record does not support defendant’s argument, and he failed to argue that

defendant was prejudiced by counsel’s alleged errors, which he is required to show at third-stage

proceedings.

¶ 38 The right to counsel in postconviction proceedings is statutory as provided in the Post-

Conviction Act, not a constitutional right. People v. Suarez, 224 Ill. 2d 37, 42 (2007). Further, “a

defendant in postconviction proceedings is entitled to only a ‘reasonable’ level of assistance,

which is less than that afforded by the federal or state constitutions.” People v. Pendleton, 223

Ill. 2d 458, 472 (2006). Rule 651(c) provides that postconviction counsel file a certificate stating

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that he or she (1) consulted with the defendant to ascertain his contentions of deprivation of

constitutional right, (2) examined the record of the proceedings at the trial, and (3) amended the

defendant’s pro se petition, if necessary, to ensure that defendant’s contentions are adequately

presented. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶ 39 However, once a petition advances to a third-stage evidentiary hearing, Rule 651(c) no

longer applies. People v. Pabello, 2019 IL App (2d) 170867, ¶ 28; see People v. Marshall, 375

Ill. App. 3d 670, 683 (2007) (“Third-stage counsel does not, as Rule 651(c) requires, examine the

record or amend the petition further.”). Rule 651(c) governs counsel’s duties at the second stage

while the third stage is simply governed by a general reasonableness standard. Pabello, 2019 IL

App (2d) 170867, ¶ 29.

¶ 40 The reasonable level of assistance required under the Post-Conviction Act is not

coextensive with the level of assistance required under Strickland. People v. Hotwagner, 2015 IL

App (5th) 130525, ¶ 37 (citing People v. Owens, 139 Ill. 2d 351, 364-65 (1990)). However,

although Strickland “is not the relevant standard” for addressing such claims, “the Strickland test

is an essential standard for comparison.” Id.; see Pabello, 2019 IL App (2d) 170867, ¶ 36

(following Hotwagner). “It stands to reason that, if postconviction counsel’s assistance cannot be

deemed ineffective under Strickland, it cannot be deemed unreasonable under the [Post-

Conviction] Act.” Pabello, 2019 IL App (2d) 170867, ¶ 36 (citing Hotwagner, 2015 IL App

(5th) 130525, ¶ 37).

¶ 41 The supreme court in People v. Addison, 2023 IL 127119, ¶ 38, further recognized that an

unreasonable assistance claim following a third stage evidentiary hearing is not governed by the

same requirements as after a second stage dismissal. “A comparison with cases considering

unreasonable assistance claims at the third stage is illogical, as this court has not prescribed by

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rule specific duties that counsel must perform at the third stage.” Id. The Addison court discussed

the reasoning in both Pabello and Hotwagner of applying a general reasonable assistance

analysis to evaluate postconviction counsel after third stage proceedings. Id. While the supreme

court declined to extend the consideration of prejudice to second stage claims, the court

expressed no objection to this framework at third stage. Id.

¶ 42 Because defendant’s postconviction relief was denied following a third stage evidentiary

hearing, we review postconviction counsel’s representation under the general reasonable

assistance standard. Even if we evaluate defendant’s claims alleged against postconviction

counsel under the elevated Strickland standard, his claim that he was denied the right to

reasonable assistance still fails.

¶ 43 According to defendant, postconviction counsel provided unreasonable assistance based

on multiple errors occurring at both second and third stage proceedings. He contends his claim of

ineffective assistance of trial counsel “advanced all the way to the third stage due to a mandate

from this Court that recognized its merits” despite postconviction counsel’s inadequate

representation. This assertion misstates our holding in defendant’s prior appeal. The issue before

us was whether the trial court’s dismissal at the first stage was in error. We concluded that

defendant had satisfied the low threshold for the summary dismissal and found his claim of

ineffective assistance of trial counsel was arguable. Jenkins, 2021 IL App (1st) 18-2118-U, ¶ 20.

We remanded for further proceedings consistent with the Post-Conviction Act, but we took “no

position on the merits of defendant’s claim or his ability to prove that he was denied effective

assistance of counsel.” Id. This court clearly did not “mandate” that his claims should be

advanced to the third stage, in fact, it was the circuit court who advanced defendant’s claim.

¶ 44 Regarding the second stage proceedings, defendant asserts that counsel’s Rule 651(c)

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certificate was contradicted by the record and counsel failed to file a response to the State’s

motion to dismiss. Appellate counsel supports this claim by noting the following. During the

evidentiary hearing, postconviction counsel offered no argument in opening or closing and made

errors in her questions to trial counsel. Specifically, in her cross-examination, postconviction

counsel asked trial counsel why did he “elect not to cross-examine the clerk [Green].” But as

trial counsel responded, he had cross-examined Green at trial and specifically asked Green about

what he saw in the perpetrator’s hand. Defendant also points to postconviction counsel’s

misstatement in the following question, “You said earlier that you thought the State could not

prove armed because of the nature of the vehicle -- the nature of the weapon; is that correct?”

Defendant contends that this question “revealed” that postconviction counsel thought defendant

had been convicted of armed robbery with a dangerous weapon rather than armed robbery with a

firearm.

¶ 45 While defendant focuses a significant part his reasonable assistance claim on

postconviction counsel’s failure to fulfill her duties under Rule 651(c), this is not the appropriate

standard following a third stage hearing. See Pabello, 2019 IL App (2d) 170867, ¶ 28; Marshall,

375 Ill. App. 3d at 683 (2007). Although defendant cites several cases in his argument, all of

these cases involved a reasonable assistance claim following a second stage dismissal. See

People v. Turner, 187 Ill. 2d 406 (1999), People v. Perkins, 229 Ill. 2d 34 (2007), People v.

Johnson, 154 Ill. 2d 227 (1993), People v. Suarez, 224 Ill. 2d 37 (2007), Addison, 2023 IL

127119, People v. Pendleton, 223 Ill. 2d 458 (2006), People v. Schlosser, 2012 IL App (1st)

092523, People v. Landa, 2020 IL App (1st) 170851, People v. Tillery, 2022 IL App (1st)

200045-U, and People v. Smith, 2023 IL App (1st) 210909-U. Defendant fails to cite any

authority relating to the review of postconviction counsel’s representation following a third stage

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evidentiary hearing.

¶ 46 As previously stated, a claim of ineffective assistance requires a defendant to establish

that: (1) his counsel’s performance was deficient, and (2) he suffered prejudice due to counsel’s

deficient performance. Strickland, 466 U.S. at 687. Because defendant must show both prongs,

we need only address the prejudice prong and need not consider postconviction counsel’s

performance. See Strickland, 466 U.S. at 697.

¶ 47 In his opening brief, defendant maintains that he does not need to show prejudice for his

reasonable assistance claim. The State responds that defendant’s failure to argue prejudice

precludes a finding of unreasonable assistance. See Hotwagner, 2015 IL App (5th) 130525, ¶ 37.

Defendant, in his reply brief, asserts that he was prejudiced by postconviction counsel’s failure

“to adequately develop a factual record.” By rule, defendant has forfeited his untimely prejudice

argument. Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) provides, in relevant part, “[p]oints

not argued are forfeited and shall not be raised in the reply brief ***. Defendant’s failure to

address prejudice in his opening brief was fatal to this claim.

¶ 48 Forfeiture aside, defendant has not shown how postconviction counsel’s actions

prejudiced him. His allegation that postconviction counsel failed to develop an adequate record is

unsupported by any facts to support prejudice or that but for counsel’s errors, the result of the

proceedings would have been different. The trial court found defendant’s ineffective assistance

claim lacked merit because trial counsel presented a reasonable defense strategy and defendant

was not prejudiced by trial counsel. Nothing in the record suggests that postconviction counsel’s

representation was unreasonable and/or ineffective or was the basis for the court’s findings.

Accordingly, defendant has not shown a reasonable probability that the result would have been

different absent any of the alleged errors by postconviction counsel. See Bew, 228 Ill. 2d at 135

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(“Strickland requires actual prejudice be shown, not mere speculation as to

prejudice.”). Therefore, his reasonable assistance claim fails.

¶ 49 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 50 Affirmed.

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