People v. Reed

Illinois Official Reports

Appellate Court

People v. Reed, 2014 IL App (1st) 122610

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DEVIN REED, Defendant-Appellant.

District & No. First District, Fifth Division

Docket No. 1-12-2610

Filed December 31, 2014

Decision Under Appeal from the Circuit Court of Cook County, No. 02-CR-3413(03);

Review the Hon. Dennis J. Porter, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Heidi Lynn Lambros, all

Appeal of State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Douglas P. Harvath, and Tasha-Marie Kelly, Assistant State’s

Attorneys, of counsel), for the People.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Presiding Justice Palmer and Justice Gordon concurred in the

judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Cook County, petitioner Devin Reed was

found guilty of first degree murder, armed robbery and residential burglary. On direct appeal,

this court affirmed Reed’s conviction for murder and his natural life sentence, but reversed

his convictions and sentences for armed robbery and residential burglary. People v. Reed,

405 Ill. App. 3d 279, 286 (2010). Pursuant to the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2010)), Reed thereafter initiated the instant postconviction proceeding

by filing a pro se petition asserting various trial errors, as well as claims that he received

ineffective assistance of trial and appellate counsel. On July 26, 2012, the circuit court

entered a memorandum order dismissing Reed’s petition as frivolous and patently without

merit. Reed now appeals, contending his petition stated the gist of claims of ineffective

assistance of appellate counsel. Reed also contends his natural life sentence for first degree

murder is void. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 Reed’s Trial

¶4 The facts adduced at Reed’s trial were fully set forth in this court’s opinion on Reed’s

direct appeal. Reed, 405 Ill. App. 3d at 281-84. We briefly summarize those proceedings and

note additional facts here to the extent necessary to address the issues raised in this appeal.

¶5 On January 1, 2002, after midnight, Reed, Anthony Williams, India Williams, and

Kimberly Thompson drove to Timothy Kollar’s residence near 25th Street and Kildare

Avenue in Chicago, where they all smoked cocaine. When the drugs ran out, Reed, Anthony,

and India left to purchase more cocaine, during which time they agreed they would rob

Kollar.

¶6 At some time after Reed, Anthony, and India returned to Kollar’s home, Thompson left

the house to place a telephone call. Approximately 20 minutes later, while Kollar and India

were smoking cocaine, Reed wrapped a porcelain statue in foam and struck Kollar on the

right side of his head with the statue. The blow did not render Kollar unconscious. Anthony

then grabbed an aluminum baseball bat and struck Kollar two or three times while Reed

searched the bedroom for money. India bound Kollar’s legs with an electrical cord, after

which she and Anthony both struck Kollar more times with the bat. Reed exited the room but

could hear the bat strike Kollar several more times. By the time Thompson returned, Reed,

Anthony and India were removing items, including guitars, from Kollar’s home. India also

took money from Kollar.

¶7 Medical examiner Dr. Michelle Jordan testified Kollar died of cranial cerebral injuries

due to blunt force trauma, with strangulation a significant contributing factor to Kollar’s

death. Dr. Jordan characterized the death as tortuous based on the extent of the injuries, the

degree of bondage and a wound to the neck.

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¶8 Thompson, who testified at trial on behalf of the State, acknowledged that she was a

prostitute in January 2002 and admitted that she was a drug addict. Thompson had difficulty

identifying Reed as one of the men she was with at Kollar’s house. She testified that she had

memory problems as a result of her past addictions and because of her bipolar disease. After

Thompson learned from the televised newscast that Kollar had been killed, she contacted the

police. Thompson subsequently met with police officers and identified Reed, Anthony, and

India.

¶9 Retired Chicago deputy police chief of narcotics and gangs Michael Cronin testified that

after Reed was identified in a lineup, he informed Reed of his Miranda rights and Reed

recounted the events surrounding the incident. A few hours later, Cronin and Assistant

State’s Attorney (ASA) Erica Dillon had another conversation with Reed. ASA Dillon

testified she also informed Reed of his Miranda rights, whereupon Reed waived those rights

and again discussed the circumstances of the incident. ASA Dillon further testified she

informed Reed of various ways he could memorialize his statement, but Reed preferred to

provide only an oral statement. ASA Dillon additionally testified she then dictated what Reed

told her to her supervisor, who was not present for Reed’s oral statement. According to ASA

Dillon, she reviewed her supervisor’s transcription, but she acknowledged Reed did not have

the opportunity to review the transcription.

¶ 10 During the conference regarding jury instructions, Reed’s counsel objected to the verdict

forms and requested that the jury be given separate verdict forms for felony murder and

intentional or knowing murder. The court denied the defense counsel’s request.

¶ 11 The jury returned guilty verdicts for first degree murder, armed robbery and residential

burglary. The jury also found that the armed robbery was accompanied by exceptionally

brutal or heinous behavior indicative of wanton cruelty.

¶ 12 On October 24, 2008, defense counsel filed a posttrial motion for a new trial. On October

31, 2008, Reed also filed two pro se posttrial motions, one seeking a new trial and one

seeking new counsel.

¶ 13 In his pro se supplemental motion for a new trial, Reed argued he had received

ineffective assistance of trial counsel because counsel had failed to file a pretrial motion to

suppress Reed’s statement to the police. Reed asserted the transcription of his “alleged”

statement raised questions regarding its validity. Reed noted Cronin’s testimony that ASA

Dillon transcribed the statement conflicted with ASA Dillon’s testimony that she related the

statement to her superior. Reed also contended his trial counsel interfered with his right to

testify on his own behalf. Reed asserted he would have testified: he told an ASA named

Chung he did not wish to give a statement; he never gave the police a statement; and the

police never informed him of his Miranda rights. Reed further contended his trial counsel

failed to present other defense witnesses, including ASA Dillon and ASA Chung.

¶ 14 Reed’s pro se supplemental motion additionally asserted that trial counsel failed to

subpoena any records of complaints against Cronin. Moreover, Reed complained that trial

counsel failed to object to or strike several of the jurors. Trial counsel was also allegedly

ineffective in the impeachment of Thompson. Reed’s pro se supplemental motion further

claimed the trial court erred in allowing death photographs of the victim to be shown to the

jury, allowing the in-court identification of Reed by Thompson, and overruling objections to

allegedly inadmissible evidence. In addition, Reed’s supplemental motion contained general

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allegations that the State failed to prove Reed guilty beyond a reasonable doubt and was

contrary to the evidence in the record.

¶ 15 In his other pro se posttrial motion, Reed argued his allegations of ineffective assistance

of counsel created a conflict of interest requiring the appointment of new counsel. Reed

asserted his trial counsel otherwise would be unable to testify regarding Reed’s claims at a

hearing on Reed’s pro se supplemental motion for a new trial.

¶ 16 The trial court denied Reed’s posttrial motions. After reviewing Reed’s allegations of

ineffective assistance of trial counsel, the trial court stated it did not “see that the motion

would be granted in any event” and observed Reed had presented nothing but the allegation

that ASA Chung would have testified as alleged by Reed. The trial court further observed

there was nothing in the proceedings establishing either of Reed’s trial counsel’s

performance was “so deficient that [it] would entitle [Reed] to a new counsel.”

¶ 17 Reed then waived a jury for sentencing purposes. The trial court found that Reed was

eligible for the death penalty. In particular, the trial court found: the murder occurred during

the course of a felony; the acts causing Kollar’s death were inflicted at least in part by Reed;

and Reed acted with the knowledge his acts created a strong probability of death or great

bodily harm to Kollar. After hearing arguments in aggravation and mitigation of the offense,

the trial court initially observed the victim’s death “was brutal and heinous beyond the most

person’s [sic] capacity to understand probably or even imagine,” noting the victim’s

“horrible death” would “in many cases” “qualify someone to receive the ultimate penalty.”

The trial judge also observed Reed had a dozen convictions related to automobile theft,

which suggested Reed was unlikely to “change his ways.” The trial judge noted in mitigation

of the offense that Reed’s family background was “quite horrible.” In addition, Reed had

obtained a G.E.D., was arguably not present at the killing, and had no convictions for violent

crimes. The trial judge also considered Reed’s statement that he had wrapped the statue in

foam before striking the victim, which arguably suggested some concern for the damage to

be caused to the victim by the blow. The trial court ultimately sentenced defendant to natural

life imprisonment for felony murder, a concurrent extended-term sentence of 60 years for

armed robbery, and a concurrent 15-year sentence for residential burglary. Id. at 285.

¶ 18 On November 7, 2008, Reed filed a pro se motion to reduce his sentence, which the trial

court denied. The record indicates Reed’s trial counsel also filed a motion to reduce sentence

on November 14, 2008. The transcript of proceedings indicates that the trial judge noted

Reed’s eligibility for the death penalty in denying Reed’s postsentencing motions.

¶ 19 The Direct Appeal

¶ 20 In his direct appeal to this court, Reed raised the following issues: (1) whether the trial

court erred by denying his request to provide the jury with separate instructions and verdict

forms for felony murder, which resulted in him receiving an improper sentence on the

predicate felonies; (2) whether the trial court erred when it imposed extended-term sentences

for both first degree murder and armed robbery as extended-term sentences may only be

imposed on the conviction of the most serious offense; (3) whether the evidence was

insufficient to prove him guilty beyond a reasonable doubt of residential burglary where he

was invited into the victim’s home; (4) whether the trial court abused its discretion in

sentencing him to natural life imprisonment for first degree murder because this was his first

conviction for a violent offense and he had minimal involvement in the events that resulted in

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the victim’s death; and (5) whether the trial court erred in refusing to allow defense counsel’s

proposed addict instruction where it was an accurate statement of the law and one of the

State’s witnesses was an admitted drug addict. Id.

¶ 21 This court, following our supreme court’s decision in People v. Smith, 233 Ill. 2d 1

(2009), concluded the trial court should have granted Reed’s request for separate verdict

forms for intentional, knowing, and felony murder. Accordingly, the appellate court affirmed

Reed’s conviction for murder, but reversed his convictions and sentences for residential

burglary and armed robbery. Reed, 405 Ill. App. 3d at 286. The disposition of that issue

rendered it unnecessary for the appellate court to consider the sufficiency of the residential

burglary conviction and the propriety of the sentence on the armed robbery conviction. Id.

¶ 22 This court also ruled the trial court properly sentenced Reed to natural life imprisonment

for felony murder, noting the trial court found Reed eligible for the death penalty based on

the fact that during the course of another forcible felony, Reed inflicted injuries which at

least in part contributed to Kollar’s death, and acted with the knowledge that his acts created

a strong probability of death or great bodily harm. Id. at 287 (citing 720 ILCS 5/9-1(b)(6)

(West 2006)). Lastly, this court ruled the trial court did not err in refusing to allow defense

counsel’s proposed addict instruction. Id. at 288.

¶ 23 Our supreme court denied Reed’s petitions for leave to appeal. People v. Reed, No.

111654 Ill. No. 111678 (Mar. 30, 2011). The United States Supreme Court denied Reed’s

petition for certiorari review. Reed v. Illinois, No. 11-5906 (U.S. Oct. 17, 2011).

¶ 24 Postconviction Proceedings

¶ 25 Reed subsequently filed his pro se petition for postconviction relief.1 Reed divided his

petition into three sections: (1) ineffective assistance of trial counsel; (2) trial errors; and (3)

ineffective assistance of appellate counsel.

¶ 26 Reed primarily claimed his trial counsel was ineffective by failing to file a pretrial motion

to suppress his “alleged” oral statement. Reed asserted he would have denied giving any oral

statement and told ASA Chung he did not wish to make a statement. Reed also denied that he

was ever informed of his Miranda rights and did not sign a waiver of those rights. Reed

further asserted he would have testified that he denied participating in the crime and had no

knowledge of the incident until he was arrested. Reed maintained that if trial counsel had

pursued a motion to suppress, the outcome of his trial would have been different because

neither Thompson nor Harris testified that Reed murdered or robbed Kollar, and because

Cronan and ASA Dillon would not have been allowed to testify regarding his alleged

inculpatory statements. Reed’s petition also faulted trial counsel’s performance on additional

grounds, including–but not limited to–his failure to argue his motion for a directed finding,

conduct discovery regarding possible complaints of misconduct by Cronin, investigate and

interview all witnesses, sufficiently cross-examine Thompson, and call a clinical

psychologist to testify that Thompson was easily led and would repeat stories.

1

The record on appeal contains a notice of filing with a notarized statement that Reed mailed his

petition from prison on April 12, 2012. The petition itself is time-stamped as filed on both April 26 and

May 3, 2012.

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¶ 27 Reed’s petition next asserted the trial court erred by allowing the State to deprive Reed of

exculpatory evidence regarding his alleged oral statement, in violation of Brady v. Maryland,

373 U.S. 83 (1963). Reed also alleged the trial court erred by allowing the State to lead

Thompson in her testimony and in her in-court identification of Reed, thereby resulting in a

false identification. Reed additionally alleged the prosecutor deprived him of due process of

law by engaging in this misconduct.

¶ 28 Reed’s petition further alleged he received ineffective assistance of appellate counsel

where counsel failed to: (1) include the charging instruments in his direct appeal; (2)

telephone Reed to discuss the appeal; (3) challenge the admissibility of his alleged oral

statement as hearsay, with no proof Reed actually provided it; (4) “to renew Post Trial

Motion’s [sic], motion for New Trial, motion for appointment of new counsel”; (5) raise

discovery violations related to ASA Dillon’s supervisor; and (6) claim prosecutorial

misconduct related to the prosecutor’s leading Thompson into a false identification of Reed.

¶ 29 Reed’s petition was supported by five excerpts from the transcript of proceedings at his

trial. Exhibit A includes ASA Dillon’s testimony regarding the transcription of Reed’s oral

statement. Exhibit B includes Cronin’s testimony regarding the transcription of Reed’s oral

statement, which allegedly contradicted ASA Dillon’s testimony. Exhibit C includes the

transcript indicating that defense counsel declined to present oral argument on the motion for

a directed finding. Exhibit D included a statement by defense counsel that certain discovery

regarding Thompson’s criminal background had not been tendered by the State, along with

the later admission that the material had been tendered and that counsel did not bother

checking because it was a big file. Exhibit E included Thompson’s in-court identification of

Reed.

¶ 30 Reed also attached several letters from the office of the State Appellate Defender

(OSAD), two of which relate to the issues raised in this appeal. A May 21, 2010, letter

suggests Reed had informed appellate counsel that he was disappointed with the arguments

presented in his direct appeal. The May 21 letter states that counsel reviewed Reed’s pro se

motion for a new trial and researched issues related to the trial counsel’s failure to file a

motion to suppress. The letter observed that witnesses testified at trial regarding Reed’s

statement and suggested that if Reed had evidence that he did not make a statement, it would

be an issue to consider raising in a postconviction petition.

¶ 31 A September 8, 2010, letter from OSAD suggests Reed had concerns about the issues

raised in his brief on direct appeal. Although Reed apparently suggested arguing the State

misled the jury regarding Thompson’s identification of Reed, counsel responded that the jury

heard Thompson’s testimony and had the opportunity to consider its weaknesses. The

September 8 letter also stated there was no confrontation clause issue with respect to his oral

statement, because ASA Dillon had testified and her supervisor was not required to appear as

a witness because it was an oral statement and the related notes were not introduced into

evidence.

¶ 32 On July 2, 2012, the circuit court entered a memorandum order which addressed Reed’s

claims and dismissed Reed’s postconviction petition as frivolous and patently without merit.

On July 26, 2012, Reed filed a timely notice of appeal to this court.

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¶ 33 ANALYSIS

¶ 34 On appeal, Reed argues the circuit court erred in summarily dismissing his

postconviction petition, which Reed contends stated the gist of claims of ineffective

assistance of appellate counsel. Reed also contends his natural life sentence for first degree

murder is void. We address these contentions in turn.

¶ 35 The Dismissal of the Postconviction Petition

¶ 36 Reed filed his pro se petition pursuant to the Post-Conviction Hearing Act (Act), which

provides a method for a criminal defendant to assert that his or her conviction was the result

of “a substantial denial of his or her rights under the Constitution of the United States or of

the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2010); see People v. Hodges,

234 Ill. 2d 1, 9 (2009). A postconviction proceeding is a collateral attack on the prior

conviction or sentence that does not relitigate a defendant’s innocence or guilt. People v.

Ligon, 239 Ill. 2d 94, 103 (2010). A petitioner commences proceedings under the Act by

filing a petition in the circuit court in which the original proceeding occurred. Hodges, 234

Ill. 2d at 9. The Act provides for three stages of proceedings in cases not involving the death

penalty. Id. at 10. At the first stage, a postconviction petition may be summarily dismissed

within 90 days of its filing if “the court determines the petition is frivolous or is patently

without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). A petition is frivolous or patently

without merit if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12.

Our supreme court has explained:

“A petition which lacks an arguable basis either in law or in fact is one which is based

on an indisputably meritless legal theory or a fanciful factual allegation. An example

of an indisputably meritless legal theory is one which is completely contradicted by

the record. [Citation.] Fanciful factual allegations include those which are fantastic or

delusional.” Id. at 16-17.

If the petition progresses to the second stage, counsel may be appointed for an indigent

defendant, and the State may answer or move to dismiss. 725 ILCS 5/122-4, 122-5 (West

2010). If the defendant makes a “substantial showing” of a constitutional violation at the

second stage, then the petition proceeds to a third-stage evidentiary hearing. 725 ILCS

5/122-6 (West 2010).

¶ 37 In this case, the circuit court dismissed Reed’s petition at the first stage. We review

de novo the dismissal of a postconviction petition without an evidentiary hearing. Hodges,

234 Ill. 2d at 9.

¶ 38 Whether a petitioner’s claims survive the first stage of the postconviction proceedings is

dependent upon whether the petition conforms to the requirements of the Act. People v.

Brown, 2014 IL App (1st) 122549, ¶ 46. To survive dismissal at the first stage, a petition

need only present the gist of a constitutional claim. See People v. Edwards, 197 Ill. 2d 239,

244 (2001). When our supreme court has spoken of a “gist,” however, it has meant “only that

the section 122-2 pleading requirements are met, even if the petition lacks formal legal

arguments or citations to legal authority.” Hodges, 234 Ill. 2d at 9.

¶ 39 Section 122-2 of the Act requires that a postconviction petition must “clearly set forth the

respects in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West

2010). A petitioner must “ ‘set forth the specific manner in which his rights were violated.’ ”

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People v. Delton, 227 Ill. 2d 247, 254 (2008) (quoting People v. Porter, 122 Ill. 2d 64, 73

(1988)). Only a “gist” of a constitutional claim is needed at this first stage. See Hodges, 234

Ill. 2d at 9. “With regard to this requirement, a defendant at the first stage need only present a

limited amount of detail in the petition.” Id. The allegations in the petition must be taken as

true and liberally construed. Edwards, 197 Ill. 2d at 244. Nevertheless, “nonfactual and

nonspecific assertions which merely amount to conclusions are not sufficient to require a

hearing under the Act.” People v. Rissley, 206 Ill. 2d 403, 412 (2003) (citing People v.

Coleman, 183 Ill. 2d 366, 381 (1998)).

¶ 40 Section 122-2 of the Act also requires that the petitioner either provide “affidavits,

records, or other evidence” to support the petitioner’s allegations or explain the absence of

such documentation. 725 ILCS 5/122-2 (West 2010). “The purpose of the ‘affidavits,

records, or other evidence’ requirement is to establish that a petition’s allegations are capable

of objective or independent corroboration.” Hodges, 234 Ill. 2d at 10 (citing Delton, 227 Ill.

2d at 254). At the first stage of review, if the affidavits do not comply with the evidentiary

requirements of section 122-2, then the petition must comply with the pleading requirements

of section 122-2 by at least providing an explanation as to why the documents or affidavits

are not attached. See People v. Collins, 202 Ill. 2d 59, 66-67 (2002). The failure to either

attach the appropriate supporting material or explain its absence justifies the summary

dismissal of a petition. Delton, 227 Ill. 2d at 255.2

¶ 41 On appeal, Reed argues he has stated the gist of claims that he received ineffective

assistance of appellate counsel. Reed first contends his appellate counsel was ineffective in

failing to argue the prosecutors and police failed to honor Reed’s requests to remain silent

and for counsel, and interrogated him in violation of his fifth amendment rights. Reed also

contends his appellate counsel was ineffective for arguing that, pursuant to Smith and People

v. Bailey, 2013 IL 113690, the treatment of his general guilty verdict as a verdict of felony

murder made him legally ineligible for a natural life sentence.

¶ 42 Forfeiture

¶ 43 The State initially responds that Reed’s petition not only fails to state the gist of these

claims, but also fails to raise them at all, resulting in forfeiture of these claims on appeal. See

725 ILCS 5/122-3 (West 2010) (“Any claim of substantial denial of constitutional rights not

raised in the original or an amended petition is waived.”); People v. Pendleton, 223 Ill. 2d

458, 475 (2006) (reiterating that a claim not raised in a postconviction petition cannot be

raised for the first time on appeal). This court lacks the authority to excuse an appellate

forfeiture caused by the failure of a litigant to include issues in his or her postconviction

petition. See People v. Jones, 213 Ill. 2d 498, 507-08 (2004). Our supreme court has

criticized this court more than once for inappropriately overlooking the waiver provision of

the Act and addressing “ ‘claims raised for the first time on appeal for various and sundry

reasons.’ ” Pendleton, 223 Ill. 2d at 475 (quoting Jones, 213 Ill. 2d at 506). As our supreme

2

We note the failure to attach supporting materials pursuant to section 122-2 of the Act differs from

the failure to attach a verification affidavit pursuant to section 122-1(b) of the Act, which our supreme

court has held is not fatal at the first stage of postconviction proceedings. See People v. Hommerson,

2014 IL 115638, ¶ 14 n.1 (“The petition did contain several affidavits pursuant to section 122-2

[citation] of the Act, which are not at issue here.”).

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court noted in Jones, attempts by counsel to raise claims for the first time on appeal from the

first-stage dismissal of a postconviction petition are understandable, but simply not permitted

under the Act:

“[T]he typical pro se litigant will draft an inartful pleading which does not survive

scrutiny under the ‘frivolity/patently without merit’ standard of section 122-2.1, and it

is only during the appellate process, when the discerning eyes of an attorney are

reviewing the record, that the more complex errors that a nonattorney cannot glean

are discovered. The appellate attorney, not wishing to be remiss in his or her duty,

then adds the newly discovered error to the appeal despite the fact that the claim was

never considered by the trial court in the course of its ruling. *** [T]he attorney is

zealously guarding the client’s rights and is attempting to conserve judicial resources

by raising the claim expeditiously at the first available chance. These goals are

laudable, but they nonetheless conflict with the nature of appellate review and the

strictures of the Act.” Jones, 213 Ill. 2d at 504-05.

In Jones, the defendant’s pro se petition for postconviction relief employed a preprinted

form, on which the defendant asserted only that he was denied his right to effective

assistance of counsel under the sixth and fourteenth amendments of the United States

Constitution. Id. at 501-02. Following the summary dismissal of his petition, Jones appealed,

arguing for the first time that the circuit court erroneously admonished him regarding his

appeal rights pursuant to Illinois Supreme Court Rule 605 (eff. July 1, 1975). Id. at 502. The

appellate court affirmed the circuit court’s summary dismissal, holding that the petition failed

to establish the gist of a constitutional claim. Id. Our supreme court affirmed, holding that

Jones could not raise the issue of improper admonishments for the first time on appeal. Id. at

509; see also People v. Blair, 215 Ill. 2d 427, 445 (2005) (where forfeiture precludes a

defendant from obtaining relief, such a claim is necessarily “frivolous” or “patently without

merit”).

¶ 44 Subsequent to our supreme court’s decision in Jones, this court has addressed forfeiture

during collateral review in People v. Mars, 2012 IL App (2d) 110695, People v. Cole, 2012

IL App (1st) 102499, People v. Hemingway, 2014 IL App (4th) 121039, and People v.

Thomas, 2014 IL App (2d) 121001. A brief summary of each case is useful to an analysis of

the forfeiture issue in this case.

¶ 45 In Mars, a grand jury indicted Mars in 2005 on one count of murder, and in 2007 on two

additional counts of murder. Mars, 2012 IL App (2d) 110695, ¶ 3. Mars moved to dismiss

the latter two counts of the indictment on the grounds of denial of due process and denial of a

speedy trial. Id. The trial court granted the motion but later reversed itself when it granted the

State’s motion to reconsider. Id. The jury ultimately acquitted Mars on the first two counts of

the indictment, but found him guilty on the third count. Id. ¶ 10. The appellate court affirmed

the conviction on direct appeal. Id.

¶ 46 Mars filed a postconviction petition, asserting in part that “ ‘[d]efense counsel failed to

challenge the sufficiency of the grand jury indictment which omitted essential elements of

the charges.’ ” Mars, 2012 IL App (2d) 110695, ¶ 31. The petition asserted that “ ‘[b]ut for,

[sic] counsel’s ineffective assistance of counsel’s [sic] no trier of fact could have found [the

defendant] guilty beyond any reasonable doubt of first degree murder.’ ” Id. The circuit court

summarily dismissed the petition. Id. ¶ 11. On appeal, Mars claimed that appellate counsel

was ineffective for failing “on direct appeal to argue that the trial court erred in not

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dismissing the 2007 indictment, because it was subject to compulsory joinder with the 2005

indictment and violated [the] defendant’s right to a speedy trial.” Id. ¶ 31.

¶ 47 The Mars court found this claim forfeited. Id. ¶ 33. The appellate court noted that

however low the threshold for surviving a first-stage dismissal, “[l]iberal construction does

not mean that we distort reality.” Id. ¶ 32. Mars’ petition alleged that his “defense counsel”

was ineffective for not challenging the indictment for lack of essential elements of the crimes

charged. Id. ¶ 33. Thus, the petition addressed trial counsel’s failure to bring the allegedly

faulty indictment to the trial court’s attention and the consequences of that omission at trial,

whereas postconviction appellate counsel explicitly referred to errors of direct appellate

counsel. Id.

¶ 48 The Mars court held that “[n]o matter how liberally we construe the [petition’s]

allegation, viewing it in context, we cannot conclude that by this allegation defendant

actually raised a claim relating to appellate counsel’s failure on direct appeal to raise the

issue of compulsory joinder and violation of his right to a speedy trial.” (Emphasis in

original.) Id. Indeed, the Mars court noted that subject matter raised in the petition could not

have been compulsory joinder and speedy trial in the context of something his trial attorney

failed to do, because trial counsel brought a motion to dismiss the 2007 indictment based on

compulsory joinder and a violation of Mars’ right to a speedy trial. Accordingly, the court

could not conclude that the petition raised a claim relating to appellate counsel’s failure on

direct appeal to raise the issue of compulsory joinder and violation of his right to a speedy

trial. Id. The Mars court further observed the petition at issue was organized and coherent

and demonstrated that Mars was aware of legal concepts (including claims that appellate

counsel was ineffective) and was able to articulate the relief to which he thought he was

entitled. Id.

¶ 49 In Cole, the postconviction petition alleged: (1) the trial court violated Illinois Supreme

Court Rule 431(b) (eff. May 1, 2007) by failing to “ ‘properly question the venire’ ”

regarding the principles underlying the trial; and (2) the prosecutor engaged in misconduct

during closing argument when he injected his personal belief by characterizing one of the

victims as “ ‘a credible witness,’ ” both of which Cole alleged violated his right to due

process. Cole, 2012 IL App (1st) 102499, ¶ 4. The circuit court summarily dismissed the

postconviction petition, reasoning the claims could have been raised on direct appeal and

were rebutted by the record. Id. ¶ 5.

¶ 50 On appeal, Cole claimed for the first time that appellate counsel’s failure to raise the

issues regarding the questioning of the venire and the prosecutor’s comment on direct appeal

rendered his assistance constitutionally deficient. Id. ¶ 9. The appellate court, relying on our

supreme court’s decision in Jones, observed that “ ‘implicit’ claims in the defendant’s

postconviction petition may not be raised for the first time on appeal when those

postconviction issues were never ruled upon by the [trial] court.” Id. ¶ 13 (citing Jones, 213

Ill. 2d at 504). Thus, because Cole’s postconviction petition included no allegations against

appellate counsel’s performance on direct appeal, Cole was precluded from asserting for the

first time on appeal claims of ineffective assistance of appellate counsel never ruled upon by

the circuit court. Id. ¶ 16. Accordingly, the Cole court affirmed the summary dismissal of the

defendant’s petition. Id. ¶ 25.

¶ 51 In Hemingway, the defendant, who was serving a 35-year prison term for armed robbery,

appealed from the summary dismissal of his petition for postconviction relief, contending his

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pro se petition raised claims that: (1) his trial counsel rendered ineffective assistance in the

jury trial by failing to call an alibi witness; and (2) his appellate counsel rendered ineffective

assistance on direct appeal by failing to argue that the sentence was excessive. Hemingway,

2014 IL App (4th) 121039, ¶ 1. Regarding the second claim, however, the postconviction

petition merely asserted that direct appellate counsel did not brief one argument regarding his

conviction or sentence. Id. ¶ 30. The Hemingway court concluded: “While it is true that all a

petition has to do is allege facts and that it need not make legal arguments or cite authorities

[citation], the mere fact that appellate counsel was silent about a sentence is not arguably a

constitutional claim.” Id. ¶ 31.

¶ 52 In Thomas, the defendant was convicted of murder and unsuccessfully argued in his

direct appeal that the trial court erred by excluding the statement “ ‘I did it,’ ” which was

uttered to detectives by N.H., an incarcerated minor. Thomas, 2014 IL App (2d) 121001, ¶ 1.

Thomas filed a pro se postconviction petition in which he alleged appellate counsel was

ineffective for failing to argue trial counsel’s ineffectiveness, reiterating that N.H. confessed

to the detectives, asserting that N.H. also confessed to a jail chaplain, and arguing that trial

counsel should have taken additional steps to ensure that the confession was admitted. Id. ¶ 2.

The postconviction court summarily dismissed the petition, concluding that appellate counsel

was not ineffective for failing to allege trial counsel’s ineffectiveness because trial counsel

had raised, argued, and preserved for direct appeal the admissibility of N.H.’s statement to

the detectives. Id. ¶ 3. On appeal, Thomas framed the underlying issue differently, arguing

“appellate counsel was ineffective for failing to argue that the trial court erred in excluding

N.H.’s conversations with the chaplain and for failing to argue that the chaplain’s testimony

would have corroborated N.H.’s statement to the detectives.” (Emphasis in original.) Id. The

State responded that defendant forfeited these arguments because the postconviction petition

focused on N.H.’s statement to the detectives, not to the chaplain, and attributed the error to

trial counsel, not the trial court. Id. ¶ 4.

¶ 53 The Thomas court, while calling the issue a “close one,” ruled Thomas had not forfeited

his present appellate arguments. Id. ¶ 5. The Thomas court reasoned:

“A liberal construction of the pro se petition, defendant’s affidavit, and the record

shows that the petition alleges that (1) appellate counsel was ineffective for omissions

on direct appeal, (2) trial counsel failed to take the proper steps to corroborate N.H.’s

statement ‘I did it,’ (3) Chaplain Fricks would have testified at trial that N.H.

confessed, (4) the trial court excluded N.H.’s separate statements to the detectives and

to Chaplain Fricks, and (5) N.H.’s statement to the detectives would have been

admitted upon proper corroboration. The logical conclusion to be drawn from these

allegations is what defendant argues in this appeal: Chaplain Fricks’ testimony is the

‘other evidence’ that should have been admitted to corroborate N.H.’s statement to

the detectives.” Id. ¶ 62.

Accordingly, the court rejected the State’s forfeiture argument and ultimately concluded the

petition stated the gist of a constitutional claim. Id. ¶ 63.

¶ 54 In Thomas, the court distinguished Mars as follows:

“In Mars, the petition faulted trial counsel for omissions related to the sufficiency of

the charging instrument, while the postconviction appellate argument faulted direct

appellate counsel for omissions related to compulsory joinder and speedy-trial rights,

which trial counsel had previously addressed. The petition and the postconviction

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appellate argument shared no underlying subject matter and identified different

attorneys as having rendered ineffective assistance. Here, the petition and the

postconviction appellate arguments both allege ineffectiveness of appellate counsel

for omissions related to the underlying issue of the admissibility of N.H.’s

confession.” Id. ¶ 66.

The Thomas court also indicated the portion of Mars commenting on the quality of the

petition “should not be viewed as holding a well-reasoned and articulate pro se petition to a

higher standard than one that is drafted less artfully.” Id. ¶ 67. In addition, the Thomas court

characterized Jones as merely affirming a summary dismissal where the postconviction

petition asserted only that the petitioner was denied his sixth amendment right to effective

assistance of counsel, without any supporting detail. See id. ¶¶ 73-74.

¶ 55 We agree with Thomas to the extent that decision suggests Jones does not entirely answer

the forfeiture question in cases such as this one. Otherwise, there would have been no need

for the extended discussion of forfeiture found in Mars, Cole, Hemingway, and Thomas. Our

supreme court, however, has indicated that this court is not free to consider claims raised for

the first time on appeal from the dismissal of a postconviction petition. Pendleton, 223 Ill. 2d

at 475; Jones, 213 Ill. 2d at 505.

¶ 56 Furthermore, Jones instructed this court that a petition which merely asserts the petitioner

received ineffective assistance of counsel does “not satisfy even the low threshold of

presenting ‘a modest amount of detail,’ even without legal argument or citation to legal

authority.” Thomas, 2014 IL App (2d) 121001, ¶ 74 (quoting Jones, 213 Ill. 2d at 504). The

Thomas court relied on the part of section 122-2 of the Act which provides that “ ‘[a]rgument

*** shall be omitted from the petition.’ ” Id. ¶ 77 (quoting 725 ILCS 5/122-2 (West 2012)).

The Thomas court, however, acknowledged that portion of section 122-2 refers to “legal

argument or citation to legal authority,” rather than the factual allegations of the petition.

(Emphases added.) Id. ¶ 74.

¶ 57 Regarding the factual allegations of the postconviction petition, section 122-2 of the Act

requires that the petition must “clearly set forth the respects in which petitioner’s

constitutional rights were violated.” (Emphases added.) 725 ILCS 5/122-2 (West 2010).

Merely asserting that the petitioner received ineffective assistance of counsel does not meet

this low threshold. Jones, 213 Ill. 2d at 504; Thomas, 2014 IL App (2d) 121001, ¶ 74. A

postconviction petition need only include limited detail to proceed beyond the first stage of

postconviction review. Hodges, 234 Ill. 2d at 9. The allegations in the petition must be taken

as true and liberally construed. See Edwards, 197 Ill. 2d at 244. Yet the allegations, limited

in detail and liberally construed, must nevertheless clearly set forth the respects in which

petitioner’s constitutional rights were violated. Thomas, 2014 IL App (2d) 121001, ¶ 48;

Mars, 2012 IL App (2d) 110695, ¶ 32.

¶ 58 This interpretation of section 122-2 of the Act is consistent with the remainder of the

section, which requires that the petitioner either provide “affidavits, records, or other

evidence” to support the petitioner’s allegations or explain the absence of such

documentation. 725 ILCS 5/122-2 (West 2010). The requirement that the petition clearly set

forth the respects in which petitioner’s constitutional rights were violated must be read in the

context of the requirement of providing supporting material for the allegations or

explanations for the absence of supporting materials. See, e.g., People v. Lloyd, 2013 IL

113510, ¶ 25 (“[W]e may consider the statute’s context, reading the provision at issue in light

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of the entire section in which it appears, and the Act of which that section is a part.”).

Reading section 122-2 as a whole, a postconviction petition is required to clearly set forth the

respects in which the petitioner’s constitutional rights were violated and provide evidence in

support of those claims, but not legal argument. See 725 ILCS 5/122-2 (West 2010). With

this understanding of the Act, we turn to consider whether Reed forfeited the claims raised on

appeal.

¶ 59 In this case, Reed’s petition alleged in pertinent part ineffective assistance of appellate

counsel for failing to challenge the admissibility of his alleged oral statement on hearsay

grounds. On appeal, Reed argues direct appellate counsel was ineffective by failing to

challenge the admissibility of his statement on different, constitutional grounds. Although

both claims nominally address Reed’s statement to the police, the claim in the petition is that

Reed’s “alleged” statement may not have been his statement at all (or not inculpatory),

whereas the claim asserted on appeal is that Reed provided a statement, but the statement was

illegally obtained, regardless of whether it was inculpatory. These arguments are not

necessarily inconsistent, but they are distinct from each other.

¶ 60 Accordingly, this case is distinguishable from Thomas, in which the petition alleged

appellate counsel should have argued trial counsel was ineffective for failing to take

additional steps to ensure N.H.’s confession was admitted, and the argument on appeal

addressed those additional steps. See Thomas, 2014 IL App (2d) 121001, ¶¶ 2-3. As the

Thomas court observed:

“Both in the petition and on appeal from the summary dismissal, defendant has (1)

alleged ineffective assistance of appellate counsel, (2) addressed the same underlying

subject matter, i.e. N.H.’s confessions to the detectives and to Chaplain Fricks, and

(3) identified as error the ruling on Chaplain Fricks’ testimony.” Id. ¶ 86.

In this case, both the petition and the appeal allege ineffective assistance of appellate counsel

related to Reed’s statement, but the respects in which Reed allegedly received ineffective

assistance of appellate counsel are distinctly different.

¶ 61 Reed argues that we should nevertheless construe his claim that his trial counsel was

ineffective by failing to file a pretrial motion to suppress his “alleged” oral statement as a

claim that his direct appellate counsel was ineffective for failing to raise this claim of

ineffective assistance of trial counsel. This argument is similar to the claim rejected in Mars.

In that case, the appellate court affirmed the first-stage dismissal of a postconviction petition

because that petition’s reference to “defense counsel,” read in context, referred to trial

counsel and not to appellate counsel. Mars, 2012 IL App (2d) 110695, ¶ 33. In this case,

Reed’s petition clearly set forth claims of ineffective assistance of trial counsel, distinct from

the petition’s claims of ineffective assistance of direct appellate counsel. To construe one of

the former claims as one of the latter claims would require more than liberal construction.

¶ 62 Reed’s petition further alleged ineffective assistance of appellate counsel based on the

failure “to renew Post Trial Motion’s [sic], motion for New Trial, motion for appointment of

new counsel.” Reed asserted several claims of ineffective assistance of trial counsel in his

pro se supplemental posttrial motion. Indeed, Reed also asserted claims other than ineffective

assistance of appellate counsel in his posttrial motions. As previously noted, “nonfactual and

nonspecific assertions which merely amount to conclusions are not sufficient to require a

hearing under the Act.” Rissley, 206 Ill. 2d at 412 (citing Coleman, 183 Ill. 2d at 381). As

Reed’s pro se supplemental posttrial motion contained numerous claims, Reed’s allegation

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regarding appellate counsel’s failure to “renew” his posttrial motions is nonspecific and

conclusional. Indeed, it is an allegation almost as broad as the claim, dismissed in

Hemingway, that direct appellate counsel did not brief one issue regarding his conviction or

sentence. Hemingway, 2014 IL App (4th) 121039, ¶ 30. The allegation regarding the posttrial

motions fails to “clearly set forth the respects in which petitioner’s constitutional rights were

violated.” 725 ILCS 5/122-2 (West 2010).

¶ 63 Similarly, Reed’s petition contains no allegation that his appellate counsel was ineffective

by failing to argue that the treatment of his general guilty verdict as a verdict of felony

murder made him legally ineligible for a natural life sentence. Reed’s pro se motion to

reduce his sentence asserts his natural life sentence was invalid, but this motion is not

mentioned in his petition. Construing Reed’s reference to “Post Trial Motion’s [sic], motion

for New Trial, motion for appointment of new counsel” as applying to his postsentencing

motion would again require this court to recognize a nonspecific claim of ineffective

assistance of appellate counsel that is not clearly set forth in the petition. In sum, Reed’s

petition does not clearly set forth the claims of ineffective assistance of trial counsel now

raised on appeal, resulting in forfeiture of these claims on appeal.

¶ 64 Alternative Discussion of the Merits

¶ 65 Moreover, even if Reed had not forfeited these claims on appeal, the claims of ineffective

assistance of appellate counsel would not have prevailed.3 As previously noted, the trial

court denied Reed’s pro se posttrial motions in part because Reed failed to support his

allegations regarding expected testimony from ASA Chung. In dismissing Reed’s

postconviction petition, the trial court similarly noted Reed’s failure to support his assertions

regarding the anticipated testimony from ASA Chung (among others). A review of Reed’s

petition established that Reed also failed to explain why he did not attach an affidavit from

ASA Chung. Accordingly, the trial judge did not err in summarily dismissing this claim. 725

ILCS 5/122-2 (West 2010); Delton, 227 Ill. 2d at 255.4

¶ 66 Regarding the claim that appellate counsel failed to argue Reed’s natural life sentence

was invalid pursuant to Smith and Bailey, the effectiveness of Reed’s counsel must be

assessed against an objective standard of reasonableness from the perspective of the time of

the alleged error and without hindsight. People v. Teague, 228 Ill. App. 3d 855, 859 (1992)

(citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). “Appellate counsel’s

assessment of the merits of an issue *** depends on the state of the law at the time of the

direct appeal.” People v. English, 2013 IL 112890, ¶ 34 (citing People v. Weninger, 292 Ill.

App. 3d 340, 345 (1997)). Appellate counsel is not incompetent for failing to accurately

predict that existing law will change. See id. The objective standard of reasonableness “is not

met where counsel fails to assert an argument formulated after the fact with the aid of a new

legal rule.” Teague, 228 Ill. App. 3d at 859 (citing Smith v. Murray, 477 U.S. 527, 535-36

(1986)); see also People v. King, 192 Ill. 2d 189, 197 (2000) (rejecting argument that counsel

3

Although our supreme court has reminded this court to address forfeiture of postconviction claims

rather than decide such claims on the merits (supra ¶ 38), in this case we have considered and disposed

of Reed’s claims as forfeited, and discuss the merits solely in the alternative.

4

The correspondence from OSAD also indicated that appellate counsel researched issues related to

trial counsel’s failure to file a motion to suppress.

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may be ineffective for failing to anticipate United States Supreme Court decision); People v.

Knippenberg, 325 Ill. App. 3d 251, 261 (2001) (same); People v. Maury, 287 Ill. App. 3d 77,

84 (1997) (claim that counsel was ineffective by not divining a later change in the law is

“absurd”). “Indeed, to require counsel to ‘preminisce’ future *** court holdings would render

‘effective assistance’ an impossible standard to meet ***.” People v. Chatman, 357 Ill. App.

3d 695, 700 (2005).

¶ 67 In this case, appellate counsel successfully argued the trial court erred in denying the jury

instructions for intentional, knowing and felony murder, pursuant to Smith. Reed, 405 Ill.

App. 3d at 286. As Smith was already decided before the decision in Reed’s direct appeal, it

was obviously not a new legal rule. Thus, the issue is whether our supreme court’s decision

in Bailey constitutes a new legal rule.

¶ 68 Our decision in Teague did not include a detailed consideration of what constitutes a new

legal rule, but the United States Supreme Court’s prior decision regarding Teague, which

discussed the issue of what constitutes a new rule for the purposes of determining whether a

constitutional rule of criminal procedure applies retroactively on collateral review, offers

guidance on the question. See Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). “[A]

case announces a new rule if the result was not dictated by precedent existing at the time the

defendant’s conviction became final.” (Emphasis omitted.) Id. at 301 Conversely, Teague

also established that a case does not “announce a new rule [when] it ‘[is] merely an

application of the principle that governed’ ” a prior decision to a different set of facts. Id. at

307 (quoting Yates v. Aiken, 484 U.S. 211, 216-17 (1988)). When all a court does is apply a

general standard to the kind of factual circumstances it was meant to address, that decision

will rarely state a new rule for Teague purposes. Chaidez v. United States, 568 U.S. ___, ___,

133 S. Ct. 1103, 1107 (2013). These basic principles may be easily adapted, with minor

modifications as necessary, to a determination of whether appellate counsel in this case

should have presented the argument ultimately accepted by our supreme court in Bailey. That

determination requires a closer examination of the decisions in Smith and Bailey.

¶ 69 In Smith, our supreme court considered whether a trial court must provide the jury with

separate verdict forms when a defendant is charged with multiple counts of murder based on

differing mental states and the defendant requests such forms. Smith, 233 Ill. 2d at 4-5. In

consolidated cases, the defendants were each charged with intentional murder, knowing

murder, and felony murder, along with the underlying felony offenses predicating the felony

murder charges. Id. at 5. Both defendants requested separate verdict forms for felony murder,

which both trial courts denied. Id. In both cases, the juries returned general verdicts of guilty

of first degree murder; the juries also found the defendants guilty of the underlying felony

offenses. Id.

¶ 70 The trial court in the first case sentenced the defendant to 60 years’ imprisonment for the

first degree murder conviction, a concurrent term of 20 years for armed robbery, and a

consecutive term of 8 years for attempted armed robbery. Id. at 9. On appeal, the first

defendant argued that, had the jury been provided a separate instruction on felony murder, he

might not have been eligible to be sentenced to a consecutive sentence on the attempted

armed robbery conviction. Id. The appellate court agreed and modified the defendant’s

sentence, making the eight-year term concurrent. Id. at 10. In the second case, the trial court

sentenced that defendant to 38 years’ imprisonment for the murder and 18 years’

imprisonment for the armed robbery, to run consecutively. Id. at 13. The appellate court

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affirmed the second defendant’s convictions, but (as with the first defendant) modified his

consecutive sentence for armed robbery to run concurrently with his sentence for murder. Id.

¶ 71 On appeal, the Smith court acknowledged:

“[T]here may be different sentencing consequences based on the specific theory of

murder proven. For example, there are several aggravating factors, applicable only to

murders committed intentionally or knowingly, which, if proven to exist, will support

a sentence of death. See 720 ILCS 5/9-1(b) (West 2006). However, a person

convicted of felony murder is eligible for the death penalty only if the sentencing jury

finds beyond a reasonable doubt that the requirements of section 9-1(b)(6) have been

proven, i.e., that the defendant actually killed the victim or substantially contributed

to his physical injuries and, in so doing, intended to kill or knew that his acts caused a

strong probability of death or great bodily harm. 720 ILCS 5/9-1(b)(6) (West 2006);

People v. Fuller, 205 Ill. 2d 308 (2002) (death penalty vacated where sentencing jury

was never instructed regarding the necessary (section 9-1(b)(6)) mental state

requirements and a general finding of eligibility was returned); see also People v.

Mack, 167 Ill. 2d 525, 538 (1995) (death penalty vacated where verdict form

attempted to set forth the (section 9-1(b)(6)) statutory aggravating factor, but failed to

do so completely and omitted an essential element).” Smith, 233 Ill. 2d at 17.

Moreover, the predicate felony underlying a charge of felony murder is a lesser included

offense of felony murder; thus, a defendant convicted of felony murder may not be convicted

on the underlying felony. Id. In such instances, the predicate offense will not support a

separate conviction or sentence. See id.

¶ 72 The Smith court also recognized the long-standing legal construct known as the “one

good count rule,” which provides that if one count in an indictment is valid, although all the

others were defective, it was sufficient to support a general verdict of guilty. See id. at 18-19.

As a corollary to the “one good count rule,” Illinois courts have also consistently held that, in

a case where an indictment contains several counts arising out of a single transaction, a

general verdict will have the effect of the defendant being guilty of each charged count

except in cases where the one-act, one-crime doctrine applied and a sentence is imposed only

on the most serious offense. Id. at 20. Moreover, in cases where a defendant is charged with

murder in multiple counts alleging intentional, knowing and felony murder, and a general

verdict is returned, the defendant is presumed to be guilty of the most serious offense, and a

sentence is to be imposed on that offense. Id. at 21.

¶ 73 The Smith defendants did not challenge these general legal principles, but they

challenged the presumptions of these principles when they would prejudice the defendant by

subjecting him to more severe punishment. Id. Our supreme court agreed, stating that it was

impossible to determine from a general verdict form the basis on which the jury found the

defendant guilty of first degree murder. Id. at 23. The court agreed with the defendants’

contentions that it was a violation of due process to deny them the opportunity to have the

juries decide their theory of defense (which was that, at most, the defendants were guilty of

the less culpable offense of felony murder), then sentence them on the presumption that they

were convicted of the more serious offense. Id. The Smith court held that where “specific

findings by the jury with regard to the offenses charged could result in different sentencing

consequences, favorable to the defendant, specific verdict forms must be provided upon

request and the failure to provide them is an abuse of discretion.” Id. In addition, in cases

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where the court cannot conclude that the general verdicts establish the juries found the

defendants guilty of each of the theories of murder charged, it is error to sentence the

defendants on the presumption that they were found guilty of intentional murder. See id. at

27. Smith held that in such cases, the appropriate remedy is to interpret the general verdict as

a finding on felony murder. Id. at 28. As a result, the defendants’ convictions and sentences

for murder were affirmed, but the convictions and sentences for the predicate felonies were

vacated and the cases remanded for correction of the mittimus in each case. Id. at 29.

¶ 74 In Bailey, the defendant was charged with intentional, knowing, and felony murder, and

with the predicate crimes of home invasion and robbery of an individual 60 years of age or

older. People v. Bailey, 2013 IL 113690, ¶ 1. “After the State announced its intent to seek the

death penalty, defendant elected to have the trial court determine his eligibility for the death

sentence.” Id. The trial court denied a defense request for separate verdict forms on the two

counts of felony murder. Id. The jury found Bailey guilty of first degree murder, home

invasion, and robbery. The trial court found Bailey eligible for the death penalty, but

sentenced him instead to concurrent terms of natural life, 30 years, and 15 years,

respectively. Id. On appeal, “[t]he appellate court found that the circuit court erred by

refusing defendant’s request for separate felony-murder verdict forms, but that he was

properly sentenced to a term of natural life without the possibility of parole.” Id. (citing

People v. Bailey, 2011 IL App (1st) 090074-U). Our supreme court accepted his appeal.

¶ 75 Initially, our supreme court acknowledged the link between the verdict forms and

sentencing was not as clear-cut as in Smith. Bailey, 2013 IL 113690, ¶ 21. The court

explained:

“Defendant’s argument is that if the jury had been asked to render specific verdicts

rather than a general verdict, it might have convicted him of felony murder only and

acquitted him of intentional or knowing murder. Had he been acquitted by the jury of

intentional or knowing murder, the defendant could not have been found eligible for

the death penalty under section 9-1(b)(6) [of the Criminal Code of 1961], which

requires a finding that the defendant either intended to kill the victim or knew that his

acts caused a strong probability of death or great bodily harm. 720 ILCS 5/9-1(b)(6)

(West 2006). That is, felony murder serves as an eligibility factor only if the murder

was committed with intent or knowledge. As a result, use of specific verdict forms

could have precluded the application of section 9-1(b)(6). Finally, defendant argues

that if he had not been found eligible for the death penalty, he could not have been

sentenced to a term of natural life. 730 ILCS 5/5-8-1(a)(1)(b) (West 2006). The

proper sentence would have been a term of 20 to 60 years. 730 ILCS 5/5-8-1(a)(1)(a)

(West 2006).” Id.

Our supreme court declared it “anticipated” such a situation in Smith. Id. ¶ 22 (citing Smith,

233 Ill. 2d at 17). The court acknowledged, however, that Bailey’s appeal presented “the

added circumstance that the defendant elected to have the trial court, rather than the jury,

determine his eligibility for the death penalty.” Id. ¶ 23.

¶ 76 Accordingly, one of the questions the Bailey court was required to address was whether

Smith was applicable when the trial court would not the jury, makes the finding of intent or

knowledge. Id. ¶ 24. The State argued Smith was inapplicable, contending the defendant’s

waiver of a jury for the eligibility phase made the trial court the independent finder of fact,

and the trial court’s consideration of defendant’s mental state was thus not limited by the

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jury’s verdict. Bailey, 2013 IL 113690, ¶ 44. Bailey argued that if the jury had been given

separate verdict forms as he requested and if the jury had found him not guilty of intentional

and knowing murder, the trial court would not have made a finding of intent or knowledge

under section 9-1(b)(6) of the Criminal Code of 1961. Id. ¶ 45. Bailey relied upon Beck v.

Alabama, 447 U.S. 625 (1980), and Bullington v. Missouri, 451 U.S. 430 (1981), in support

of his position. Bailey, 2013 IL 113690, ¶ 45.

¶ 77 In Beck, the United States Supreme Court held, as a matter of due process, Alabama was

constitutionally prohibited from withdrawing from the jury the option of finding the

defendant guilty of a lesser included offense in a capital case, if the unavailability of a lesser

included offense instruction enhances the risk of an unwarranted conviction. See Beck, 447

U.S. at 637-38. Our supreme court stated that Beck did not dictate the result in Bailey’s

appeal because: (1) in Illinois, felony murder is not a lesser included offense of first degree

murder; and (2) Beck does not require a separate jury instruction or verdict form upon request

by a defendant. Bailey, 2013 IL 113690, ¶¶ 48-49. The Bailey court, however, determined

that Beck was not “irrelevant” to its analysis. Id. ¶ 50. The court ultimately found Beck

“instructive” and “persuasive that a defendant’s request for separate instructions and verdict

forms on felony murder should be provided when their presence could affect the defendant’s

eligibility for the death penalty and for a life sentence if death is not imposed.” Id. ¶ 51.

¶ 78 In Bullington, the United States Supreme Court held on double jeopardy grounds that

Missouri could not seek the death penalty in a retrial after the jury in the first trial rejected

the death penalty, reasoning the sentence of life imprisonment defendant received at his first

trial meant the jury had already acquitted the defendant of whatever was necessary to impose

the death sentence. See Bullington, 451 U.S. at 444-45. The Bailey court observed that, like

Beck, Bullington did not directly address the question in Bailey’s appeal, which had a

different procedural posture. See Bailey, 2013 IL 113690, ¶ 54. The court, however,

acknowledged that Bullington stood “for the proposition that once a jury has acquitted a

defendant of an offense, an element of which is necessary to the imposition of the death

penalty, a subsequent fact finder–whether judge or jury–may not make a contradictory

finding.” Id.

¶ 79 The Bailey court reasoned that Beck, Bullington, and Smith, taken together, “suggest that

if a jury in a capital case has rendered a verdict in the guilt phase that contradicts a fact

necessary for a finding of eligibility at the sentencing phase, a contradictory finding cannot

be made.” Id. ¶ 55. Accordingly, in Bailey’s appeal, “if the jury had been given separate

verdict forms and had acquitted defendant of intentional or knowing murder, application of

section 9-1(b)(6) would have been foreclosed because the verdict would have negated an

essential element of this eligibility factor.” Id. ¶ 56. The court thus rejected the State’s

argument that the factual determinations made during the guilt phase and the eligibility phase

are “ ‘mutually exclusive,’ ” finding it inconsistent with “Supreme Court precedent.” Id.

¶ 80 Furthermore, the Bailey court concluded that because the verdict must be interpreted not

only as a conviction of felony murder, but also as an acquittal of intentional or knowing

murder, the trial court’s finding of eligibility for the death sentence could not stand, and

Bailey’s natural life sentence predicated on that eligibility could not stand. Id. ¶¶ 64-65. The

Bailey court observed that its decision did not repudiate the “one good count rule,” which

remained applicable where a general verdict of guilty was properly rendered. Id. ¶ 69. The

court noted that the rule in Smith (and by implication, the remedy in Bailey) “applies only

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where the defendant has requested separate verdict forms, where the lack of separate verdict

forms could have adverse sentencing consequences, and where the trial court denies the

defendant’s request.” Id. Thus, our supreme court held it was error to deny defendant’s

request for separate verdict forms and the proper remedy for this error was to vacate the

defendant’s sentence of life imprisonment and to remand to the trial court for resentencing.

Id. ¶ 71.

¶ 81 In this case, Reed argues he received ineffective assistance of appellate counsel where

counsel relied on Smith to obtain relief but failed to present the argument accepted years later

in Bailey. The preceding discussion of Bailey, however, demonstrates that Bailey established

a new rule and was not merely an application of the principle established in Smith. The

Bailey court, while stating it anticipated certain sentencing consequences in Smith, was faced

with the additional circumstance of the sentencing by the trial judge. The Bailey court was

thus required to address whether Smith was applicable in the first instance to that

circumstance. Id. ¶ 24. In addition, the Bailey court’s extensive analysis was not focused only

on Smith. Rather, the court also considered Beck and Bullington, finding neither dictated the

result in Bailey’s appeal. Id. ¶¶ 48, 54. It was only when principles our supreme court

gleaned from Beck and Bullington were taken together with the court’s prior decision in

Smith that the Bailey court concluded Smith was not only applicable, but also required that

Bailey’s natural life sentence be vacated. Thus, Bailey broke new ground and established a

rule not dictated by precedent existing at the time of Reed’s direct appeal. See Teague, 489

U.S. at 301. Accordingly, Reed cannot establish appellate counsel was ineffective for failing

to assert an argument formulated after the fact with the aid of a new legal rule. Teague, 228

Ill. App. 3d at 859.

¶ 82 In sum, the circuit court did not err in summarily dismissing Reed’s postconviction

petition because the arguments Reed attempts to raise for the first time on appeal are

forfeited. Moreover, even if Reed’s arguments had not been forfeited, they would be properly

dismissed as lacking an arguable basis either in law or in fact.

¶ 83 Voidness

¶ 84 Reed also argues that his natural life sentence is void. Our supreme court has held that a

sentence which does not conform to a statutory requirement is void, and a void order may be

attacked at any time or in any court, either directly or collaterally. People v. Thompson, 209

Ill. 2d 19, 24-25 (2004). Whether a sentence, or portion thereof, is void is a question of law

subject to de novo review. People v. Donelson, 2011 IL App (1st) 092594, ¶ 7.

¶ 85 Reed, however, does not identify any respect in which the trial court lacked the statutory

authority to impose a natural life sentence. Indeed, the trial court found Reed eligible for the

death penalty by statute, based on the fact that during the course of another forcible felony,

defendant inflicted injuries which at least in part contributed to the victim’s death, and

defendant acted with the knowledge that his acts created a strong probability of death or great

bodily harm. See Reed, 405 Ill. App. 3d at 287 (citing 720 ILCS 5/9-1(b)(6) (West 2006)).

Rather, Reed contends that his sentence was unauthorized (and thus void) under our supreme

court’s decision in Bailey, i.e., the trial court’s failure to instruct the jury on the various

theories of murder in this case foreclosed the trial court from making its own determination

of a defendant’s mental state and barred the prosecution from seeking a finding of eligibility

under section 9-1(b)(6). See Bailey, 2013 IL 113690, ¶ 64.

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¶ 86 We have previously concluded that Bailey established a “new” rule of law. “A judicial

decision that establishes a new constitutional rule applies to all criminal cases pending on

direct review.” People v. Davis, 2014 IL 115595, ¶ 36 (citing Schriro v. Summerlin, 542 U.S.

348, 351 (2004)).5 As to convictions that are already final, however, a new rule does not

apply retroactively to cases on collateral review except in two instances. First, “ ‘[n]ew

substantive rules generally apply retroactively.’ ” (Emphasis in original.) Id. (quoting

Schriro, 542 U.S. at 351). Substantive rules include those that narrow the scope of a criminal

statute by interpreting its terms, and constitutional determinations that place particular

conduct or persons covered by the statute beyond the State’s power to punish. Id. (citing

Schriro, 542 U.S. at 351-52). “Such rules apply retroactively because they ‘necessarily carry

a significant risk that a defendant stands convicted of “an act that the law does not make

criminal” ’ or faces a punishment that the law cannot impose upon him.” (Internal quotation

marks omitted.) Id. (quoting Schriro, 542 U.S. at 352).

¶ 87 Second, new rules of procedure generally do not apply retroactively, because “ ‘[t]hey do

not produce a class of persons convicted of conduct the law does not make criminal.’ ” Id.

(quoting Schriro, 542 U.S. at 352). Rather, new procedural rules “ ‘merely raise the

possibility that someone convicted with use of the invalidated procedure might have been

acquitted otherwise.’ ” Id. (quoting Schriro, 542 U.S. at 352). Accordingly, courts “ ‘give

retroactive effect to only a small set of watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.’ ” Id. (quoting Schriro, 542

U.S. at 352). A sentencing issue, which has no involvement in the accuracy of the conviction,

is thus outside of this second exception. See People v. Morris, 236 Ill. 2d 345, 363 (2010).

¶ 88 In this case, Reed does not argue either of these exceptions is applicable. Instead, Reed

maintains Bailey did not establish a new rule–a contention we have already rejected.

Nevertheless, we will briefly explain why neither exception applies in this case.

¶ 89 Regarding the first exception, “[a] rule is substantive rather than procedural if it alters the

range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at 353. For

example, in Davis, 2014 IL 115595, ¶¶ 33-43, our supreme court considered whether Miller

v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), retroactively applied to cases on collateral

review. Miller holds that a mandatory life-without-parole sentence for a juvenile violates the

eighth amendment prohibition against cruel and unusual punishment. Miller, 567 U.S. at ___,

132 S. Ct. at 2475. In Davis, our supreme court concluded that while Miller mandates a new

procedure for sentencing minors based on their individual circumstances, that new procedure

is the result of the substantive prohibition of mandatory life-without-parole sentences for

minors. Davis, 2014 IL 115595, ¶ 39. “In other words, Miller places a particular class of

persons covered by the statute–juveniles–constitutionally beyond the State’s power to punish

with a particular category of punishment–mandatory sentences of natural life without

parole.” (Emphasis omitted.) Id. Accordingly, our supreme court concluded Miller

established a new substantive rule which applies retroactively on collateral review. Id.

5

Reed does not assert or argue that the decision is Bailey is not a constitutional rule. Bailey is based

in part upon Smith, which is based on due process concerns. See Smith, 233 Ill. 2d at 23. As previously

noted, the decision in Bailey is also based upon Beck and Bullington, decisions finding violations of due

process and double jeopardy, respectively. Supra ¶¶ 71-73. Accordingly, the rule established in Bailey

is a new constitutional rule.

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¶ 90 In contrast, in Schriro, the United States Supreme Court considered whether Ring v.

Arizona, 536 U.S. 584 (2002), applies retroactively. Ring held that Apprendi v. New Jersey,

530 U.S. 466 (2000), did not permit a judge, sitting without a jury, to find an aggravating

circumstance necessary for imposition of the death penalty. Ring, 536 U.S. at 609. The Ring

Court reasoned that the aggravating factors in that case operated as the functional equivalent

of an element of a greater offense. Id. The Schriro Court held Ring’s jury requirement is not

a substantive rule because it does not affect the range of conduct that may be criminalized by

the State. Schriro, 542 U.S. at 353. Instead, Ring only affects whether a jury or a judge

decides whether the defendant’s conduct was punishable by death. Id.; see also Lucien v.

Briley, 213 Ill. 2d 340, 348 (2004) (discussing Schriro).

¶ 91 In this case, our supreme court’s decision in Bailey does not alter the range of conduct or

the class of persons that the law punishes. Pursuant to Bailey, any defendant convicted of

murder is subject to the sentences authorized by statute, so long as the defendant’s jury was

properly instructed. Analogous to Ring, the defendant’s mental state would operate not only

as an element of the more serious theories of murder, but also as a factor making a defendant

found guilty of felony murder eligible for the death penalty. Bailey merely permits a

defendant to request that the jury, rather than the sentencing judge, determine whether the

State proved a mental state necessary for the defendant to be eligible for the death penalty.

See Bailey, 2013 IL 113690, ¶¶ 64, 69. Bailey thus allocates decision-making authority

between the jury and the judge and is therefore considered a procedural rule, not a

substantive rule. See Schriro, 542 U.S. at 353.

¶ 92 Regarding the second exception, as previously noted, a sentencing issue does not fall

within this exception because it has no involvement in the accuracy of the conviction. See

Morris, 236 Ill. 2d at 363. Accordingly, we conclude Bailey does not apply retroactively on

collateral review. Thus, Reed’s voidness argument fails.6

¶ 93 CONCLUSION

¶ 94 In sum, the issues Reed’s counsel attempted to raise on appeal are forfeited because Reed

failed to raise them in his postconviction petition. Even if Reed’s claims were not forfeited,

they are frivolous and patently without merit, because Reed failed to attach supporting

material and appellate counsel was not required to anticipate Bailey, which was decided after

Reed’s direct appeals had concluded. In addition, Reed’s natural life sentence is not void

because our supreme court’s decision in Bailey announced a new rule of constitutional

procedure that does not apply retroactively to these postconviction proceedings. For all of the

aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 95 Affirmed.

6

Given this conclusion, we need not address the State’s argument that even if Bailey applied to

Reed’s postconviction proceedings, the sentence was not void because the jury in this case found the

armed robbery was accompanied by exceptionally brutal and heinous behavior indicative of wanton

cruelty and the sentencing judge found the victim’s death “was brutal and heinous beyond the most

person’s [sic] capacity to understand probably or even imagine.”

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