People v. Custer

2019 IL 123339

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123339)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN

MICHAEL CUSTER, Appellee.

Opinion filed September 19, 2019.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Thomas, Garman, Burke, Theis, and

Neville concurred in the judgment and opinion.

OPINION

¶1 In this appeal, we are asked to extend the procedures we established in People

v. Krankel, 102 Ill. 2d 181 (1984), and its progeny to protect a pro se criminal

defendant’s sixth amendment right to effective assistance of trial counsel to similar

claims of unreasonable assistance by postconviction counsel in purely statutory

proceedings commenced under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2010)). After weighing the potential effects, both positive and

negative, of expanding our application of Krankel, we decline that invitation.

¶2 I. BACKGROUND

¶3 Petitioner John Michael Custer had already been convicted of numerous

criminal offenses, both felonies and misdemeanors, when the State filed the instant

charges. 1 We now address, however, only the facts needed for a complete

understanding of this appeal.

¶4 In 2010, petitioner was charged in the circuit court of Peoria County with

unlawful possession of a controlled substance; he entered an open guilty plea the

next year. After accepting the plea, the trial court continued the case for sentencing.

Prior to the sentencing hearing, however, petitioner was arrested again after two

other incidents: (1) an attack on a police officer who was responding to a report that

petitioner was assaulting a female in her home and (2) possession of a knife while

threatening a man and a woman at a bar. Based on those incidents, petitioner was

charged with unlawful possession of a weapon by a felon, aggravated assault,

unlawful use of a weapon, and aggravated battery. Petitioner subsequently failed to

return for sentencing in his 2010 drug case, and a warrant was issued for his arrest.

¶5 Petitioner was eventually apprehended and appeared for sentencing in his drug

case. Based on his multiple felony and misdemeanor convictions, many involving

“crimes of violence,” the State requested the maximum sentence of six years in

prison. The State also noted that petitioner was the subject of “a multitude” of

protective orders sought by a number of different women. The trial court sentenced

petitioner to six years’ imprisonment.

¶6 Nine months later, in July 2013, petitioner entered a negotiated guilty plea to

the charges of aggravated battery of a police officer and unlawful possession of a

weapon stemming from the arrests during the pendency of his 2010 drug case. In

1

The order denying petitioner’s postconviction petition indicates one of his presentence

investigation reports revealed that his prior criminal record includes 9 felony convictions, 10

criminal misdemeanor convictions, 10 Class A traffic convictions, and 7 orders of protection entered

against him.

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exchange, the State recommended consecutive sentences of 4½ years and 5 years

in prison, respectively, and agreed to dismiss the remaining charges. The trial court

accepted the pleas and imposed the agreed-upon sentences.

¶7 In May 2014, petitioner filed a pro se postconviction petition, alleging that his

private counsel in the 2010 drug case, Clyde Hendricks, was ineffective for failing

to appeal or move to withdraw his guilty plea as petitioner requested. Petitioner’s

filing advanced to a second-stage proceeding, and attorney Sam Snyder was

appointed as his postconviction counsel. Snyder filed a supplemental

postconviction petition, supporting the pro se allegations with four affidavits from

petitioner claiming that both he and his girlfriend (Michelle Colvin) had asked

attorney Hendricks to appeal petitioner’s drug conviction and sentence. Hendricks

allegedly told them he would “take care of what needed to be done and for

[petitioner] not to worry.” The petition also asserted that Hendricks failed to follow

petitioner’s instruction to file a motion to withdraw his plea. Based on that showing,

the trial court advanced the postconviction petition to a third-stage evidentiary

hearing.

¶8 Prior to that hearing, Colvin sent the trial court a letter stating that (1) she knew

petitioner was “not an innocent man,” (2) she helped him agree to plead guilty,

(3) trial counsel Hendricks told her he was filing an appeal for petitioner, and

(4) postconviction counsel Snyder “refused” to take her statement. Attorney Snyder

also sent petitioner a letter stating that (1) Snyder had spoken to Colvin, (2) Colvin

was “rude and disrespectful” to Snyder and his staff, and (3) Snyder would not be

calling Colvin to testify at the evidentiary hearing because he did not believe her

testimony would be helpful.

¶9 At the evidentiary hearing, petitioner testified that trial counsel Hendricks

advised him that he would likely be sentenced to probation or three years in prison

if he pled guilty to the drug charge. After instead receiving a six-year sentence,

petitioner asked Hendricks to appeal. About a month later, Hendricks told petitioner

he did not file an appeal because he found no viable appellate issues. Petitioner

further testified that he asked Hendricks to file a motion to withdraw his plea and

that his girlfriend Colvin also asked Hendricks to appeal.

¶ 10 In his testimony at the evidentiary hearing, Hendricks acknowledged telling

petitioner he had a “good chance” of receiving no more than four years in prison

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based on the small amount of cocaine at issue. Hendricks explained to petitioner

that entering an open plea would make it difficult to challenge any sentence that

fell within the proper sentencing range. While Hendricks expressed surprise when

petitioner was given the maximum sentence, he reiterated that the sentence was

within the trial court’s discretion. He denied any claim that petitioner expressed a

desire to appeal or withdraw his plea, stating he would have filed for both if

petitioner had asked.

¶ 11 The trial court took the amended postconviction petition under consideration.

Before an order was entered, however, petitioner sent the judge a letter claiming

that postconviction counsel Snyder failed to provide him with adequate

representation by refusing to call Colvin as a witness at the evidentiary hearing.

Petitioner also filed a pro se motion to “reconsider” the trial court’s ruling on his

amended postconviction petition even though no ruling had yet been entered.

¶ 12 The trial court denied the amended postconviction petition and declined to

address petitioner’s pro se motion to “reconsider” because he was still represented

by counsel (Snyder). The court’s written order included express credibility

findings: “The court finds [petitioner’s] testimony to be totally unbelievable. In

addition to his manner while testifying the court finds [petitioner’s] testimony and

claims are clearly contradicted by the facts and circumstances set forth in the

record.” Conversely, the court found petitioner’s trial counsel, Hendricks, “to be

very believable.”

¶ 13 Petitioner appealed, represented by the Office of the State Appellate Defender.

Despite being represented by counsel, petitioner filed a pro se motion to dismiss

the appeal and asked the appellate court to “order the circuit court to rule on [his]

motion for reconsideration.” Petitioner again alleged that postconviction counsel

Snyder erred by failing to call Colvin to testify at the evidentiary hearing. The State

did not object to petitioner’s filing, and the appellate court dismissed the appeal,

remanding for a ruling on his pro se motion to reconsider.

¶ 14 On remand, the trial court held a hearing on the motion to reconsider. Petitioner

was not present, but postconviction counsel Snyder was in attendance. At the

hearing, the State asserted that the motion did not really request “reconsideration”

because petitioner did not claim the denial of his postconviction petition was error.

Because petitioner asserted no new claims, the State relied on the arguments it made

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during the second-stage proceedings, along with the rationale in the trial court’s

order. It also asserted that petitioner’s motion did not allege any valid grounds for

reconsideration: a change in the law, newly discovered evidence, or the court’s

misapplication of the law. When given the opportunity to respond, postconviction

counsel Snyder simply stated that the pro se motion “speaks for itself” and that he

stood “on what [petitioner] already filed.” The trial court immediately denied

petitioner’s motion to reconsider.

¶ 15 Petitioner then filed a second postconviction appeal, arguing the trial court erred

in denying his reconsideration request without first conducting a Krankel hearing.

Although the appellate court acknowledged that Krankel has never been extended

to postconviction proceedings, it remanded the cause to the trial court for it “to

conduct a Krankel-like inquiry into [petitioner’s] pro se claim of unreasonable

assistance of postconviction counsel.” 2018 IL App (3d) 160202, ¶¶ 25, 31. The

State filed a petition for leave to appeal that order under Illinois Supreme Court

Rule 315(a) (eff. Apr. 1, 2018). We allowed that petition.

¶ 16 II. ANALYSIS

¶ 17 The question before us is whether the holding in Krankel, mandating a

preliminary inquiry into the factual basis for a defendant’s pro se claim that trial

counsel provided ineffective assistance (People v. Ayres, 2017 IL 120071, ¶ 11;

Krankel, 102 Ill. 2d at 189), should be extended to claims involving postconviction

counsel. Before we can address that issue, however, we must consider the State’s

argument that it is moot and, thus, the appellate decision is subject to vacatur as

merely advisory. In response, petitioner asserts that the State has forfeited its

mootness claim by not raising it in the appellate court or petition for leave to appeal.

Because claims of forfeiture and mootness present questions of law, our review is

de novo. People v. Thompson, 2015 IL 118151, ¶ 25; In re Alfred H.H., 233 Ill. 2d

345, 350 (2009).

¶ 18 A. Forfeiture

¶ 19 Forfeiture is a limitation on the parties, not the court. In the exercise of our

discretion, we may address even forfeited issues. People v. Gawlak, 2019 IL

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123182, ¶ 26. Here, petitioner argues the State’s mootness claim was forfeited.

Because reviewing courts generally do not resolve moot questions or issue advisory

opinions simply to provide precedential guidance (Italia Foods, Inc. v. Sun Tours,

Inc., 2011 IL 110350, ¶ 41), we choose to consider the mootness claim in this case.

¶ 20 B. Mootness

¶ 21 The State argues that the question of whether to extend Krankel to pro se claims

of unreasonable assistance by postconviction counsel is moot because petitioner

has already received the requested relief: a preliminary Krankel hearing. Petitioner

counters that the hearing on the allegation that postconviction counsel acted

unreasonably was “a far cry from the functional equivalent of a Krankel inquiry.”

After reviewing the entire page and a half of transcript documenting the purported

Krankel hearing, we agree with petitioner.

¶ 22 Petitioner was not in attendance at the hearing to present his motion.

Postconviction counsel Snyder, whose alleged conduct was the genesis of that

motion, stated, not surprisingly, that petitioner’s pro se “motion [to reconsider]

speaks for itself” and that counsel stood “on what [petitioner] had already filed.”

Put simply, the cursory hearing conducted by the trial court does not demonstrate

that it adequately considered petitioner’s pro se claim of inadequate representation

pursuant to Krankel. See Ayres, 2017 IL 120071, ¶ 13 (stating that “the goal of any

Krankel proceeding is to facilitate the trial court’s full consideration of a

defendant’s pro se claims”). Necessarily then, we reject the State’s contention that

petitioner already received the benefit of a preliminary Krankel inquiry, making

this appeal moot.

¶ 23 C. Applicability of Krankel to Postconviction Counsel

¶ 24 We turn now to the substantive dispute in this appeal: whether Krankel should

apply to postconviction proceedings. More specifically, we must decide whether

petitioner is entitled to a preliminary Krankel inquiry on his pro se claim that

postconviction counsel Snyder provided him with unreasonable assistance.

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¶ 25 Our opinion in Krankel has evolved into a familiar common-law procedure in

Illinois trial courts (Ayres, 2017 IL 120071, ¶¶ 11-13) that continues to provide a

means for defendants to assert posttrial claims that trial counsel provided

ineffective assistance. The twist here is that petitioner alleged inadequate

representation by appointed postconviction counsel, not by trial counsel, during

third-stage postconviction proceedings. Prior to the appellate decision in this case,

however, Krankel has never been extended to allegations of unreasonable

assistance by postconviction counsel. Because petitioner’s contention that Krankel

is applicable to his postconviction claim presents a legal question of first

impression, we will review it de novo. People v. Taylor, 237 Ill. 2d 68, 75 (2010).

¶ 26 The procedure outlined in Krankel was intended to “ ‘facilitate the trial court’s

full consideration of a [petitioner’s] pro se claims of ineffective assistance of trial

counsel and thereby potentially limit issues on appeal.’ ” Ayres, 2017 IL 120071,

¶ 21 (quoting People v. Jolly, 2014 IL 117142, ¶ 29). In Krankel, the appellate court

reversed the defendant’s burglary conviction and remanded for a new trial because

it believed his constitutional right to effective assistance was violated when his trial

counsel did not investigate a possible alibi witness. Krankel, 102 Ill. 2d at 184.

Unlike the instant case, both parties agreed on appeal that the defendant should

have been appointed conflict-free counsel at a posttrial hearing on his pro se claim.

Accordingly, we remanded the cause for another hearing on the ineffective

assistance claim, this time with assistance from newly appointed counsel. Krankel,

102 Ill. 2d at 189.

¶ 27 We recently refined our Krankel holding in Ayres, another posttrial case. There,

we declared that appointment of new counsel was not automatically required in all

Krankel proceedings. As we clarified, “ ‘[t]he law requires the trial court to conduct

some type of inquiry into the underlying factual basis, if any, of a defendant’s pro se

posttrial claim of ineffective assistance of counsel.’ ” Ayres, 2017 IL 120071, ¶ 11

(quoting People v. Moore, 207 Ill. 2d 68, 79 (2003)). “ ‘ “[I]f the allegations show

possible neglect of the case, new counsel should be appointed.” ’ ” Ayres, 2017 IL

120071, ¶ 11 (quoting Jolly, 2014 IL 117142, ¶ 29, quoting Moore, 207 Ill. 2d at

78). In addition, we recognized that holding a preliminary Krankel hearing provided

the opportunity to create a proper record for appeal. Ayres, 2017 IL 120071, ¶ 13.

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¶ 28 Here, petitioner seeks to expand those holdings into the postconviction realm,

asserting that “[a] Krankel-like inquiry into a petitioner’s claims of unreasonable

assistance of counsel is *** necessary in order to effectuate the intent of the Act.”

The precise contours of petitioner’s proposed inquiry, however, remain largely

undefined. Based on the relief requested by petitioner and the parties’ arguments,

it appears that the “Krankel-like inquiry” at issue is the postconviction equivalent

of a preliminary Krankel hearing “to determine if conflict-free counsel needs to be

appointed to represent [the petitioner] at the hearing on his motion to reconsider.”

Before deciding whether to expand Krankel’s judicially created procedures to

postconviction counsel, however, we first examine the policies and case law

underlying proceedings under the Act (725 ILCS 5/122-1 et seq. (West 2010)).

¶ 29 Our legislature expressly adopted the Act to create a mechanism for criminal

defendants to make collateral attacks on judgments by claiming a substantial

violation of a constitutional right at trial. See 725 ILCS 5/122-1 et seq. (West 2010);

People v. Flores, 153 Ill. 2d 264, 272 (1992). That remedial mechanism is broken

down into three distinct procedural stages: (1) review of the postconviction petition

for the gist of a constitutional claim; (2) the state’s filing of an answer or dismissal

motion and the appointment of postconviction counsel on request if the petition is

not frivolous or patently without merit; and (3) an evidentiary hearing, followed by

the trial court’s ruling, if the petition survives the second-stage proceedings. 725

ILCS 5/122-2.1(a)(2), 122-4, 122-5 (West 2010).

¶ 30 Because the sixth amendment right to counsel does not extend to postconviction

petitioners, counsel is afforded in collateral proceedings under the Act only as a

matter of legislative grace, if at all. People v. Cotto, 2016 IL 119006, ¶ 29 (citing

People v. Hardin, 217 Ill. 2d 289, 299 (2005)). Consequently, criminal defendants

seeking relief in postconviction proceedings have no constitutional right to counsel,

effective or otherwise. Postconviction petitioners are entitled to only “the level of

assistance guaranteed by the Act.” People v. Perkins, 229 Ill. 2d 34, 42 (2007). The

required quantum of assistance has been judicially deemed to be a “reasonable

level,” a standard that is significantly lower than the one mandated at trial by our

state and federal constitutions. People v. Pendleton, 223 Ill. 2d 458, 472 (2006).

¶ 31 One rationale supporting that lower standard in postconviction cases is the

widely differing statuses of defendants prior to and following conviction. Before

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and during trial, criminal defendants are presumptively innocent of the charges filed

against them; that presumption is stripped away once defendants have been

convicted and pursue postconviction relief, generally after unsuccessfully

attempting to obtain relief on direct appeal. People v. Greer, 212 Ill. 2d 192, 204

(2004).

¶ 32 Commensurate with the lower reasonable assistance standard mandated in

postconviction proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017)

sharply limits the requisite duties of postconviction counsel. They are required only

to certify that they have “consulted with the petitioner by phone, mail, electronic

means or in person,” “examined the record” as needed to shape the defendant’s

pro se claims, and “made any amendments to the petitions filed pro se that are

necessary for an adequate presentation” of those claims. Ill. S. Ct. R. 651(c) (eff.

July 1, 2017). Those limited duties persist throughout the proceedings under the

Act. Postconviction counsel may create a rebuttable presumption that reasonable

assistance was provided by filing a Rule 651 certificate. Perkins, 229 Ill. 2d at 42,

44. No similar laundry list mandating the basic professional duties required exists

for trial counsel. Because the protections to ensure proper assistance by trial and

postconviction counsel differ, claims of unreasonable performance by

postconviction counsel logically need not be treated the same as claims of

ineffective trial counsel for purposes of Krankel.

¶ 33 Nonetheless, petitioner argues that a “Krankel-like inquiry” is still required to

address his claim that postconviction counsel Snyder provided unreasonable

assistance under the Act. He relies heavily on this court’s unanimous decision in

People v. Johnson, 2018 IL 122227. He specifically cites our explanation that “the

only way to ensure the purpose of the Act is fulfilled, i.e., to ensure that criminal

defendants are not deprived of liberty in violation of their constitutional rights, is

to provide some means of reviewing attorney performance.” Johnson, 2018 IL

122227, ¶ 17. While Johnson undoubtedly continues to apply when a petitioner

asserts that private counsel retained to assist in first-stage postconviction

proceedings provided unreasonable assistance, it does not aid petitioner here. The

quoted language addresses the unique issue before this court in Johnson: the need

for us to institute “some means of reviewing” postconviction counsel’s

performance. Here, in contrast, the question is the means necessary to conduct that

review once it is mandated. Unlike Johnson, the question here is the proper scope

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of Krankel proceedings, an issue never analyzed, or even mentioned, in Johnson.

Johnson flatly fails to support petitioner’s contention that Krankel applies to pro se

allegations of unreasonable assistance by postconviction counsel.

¶ 34 To support the position that Krankel should not be extended to postconviction

counsel, the State relies on concerns expressed by the dissenting justices in Ayres.

Ayres, 2017 IL 120071, ¶ 35 (Thomas, J., dissenting, joined by Karmeier, C.J., and

Garman, J.). It argues that the extension of Krankel would magnify the potential for

wasting limited judicial resources and multiply the already heavy strain Krankel

places on our trial courts without any additional benefits.

¶ 35 The State’s argument touches on a useful balancing test for determining

whether this court should extend in this case the procedures we put in place in

Krankel and Ayres. If the additional drain on court resources caused by extending

Krankel is offset by sufficient benefits, the extension is warranted, as the original

procedure was in Krankel.

¶ 36 Looking first at the adverse impact on judicial resources of expanding Krankel

to postconviction counsel, the equation is quite simple. Requiring our trial courts

to provide additional procedural protections and hearings to postconviction

petitioners will, of course, also inevitably require the expenditure of additional

resources.

¶ 37 Nonetheless, petitioner also advances policy-based rationales for expanding

Krankel, arguing that the expansion would reap significant benefits. Petitioner

asserts that the interests of judicial economy are promoted by exploring the factual

allegations underlying a claim of inadequate assistance in a Krankel hearing in both

posttrial and postconviction cases by developing the factual record prior to appeal.

He adds that Krankel inquiries are even more critical in postconviction cases

because posttrial defendants who fail to request a Krankel hearing may raise their

constitutional claims of ineffective assistance under the Act, but the same cannot

be said for postconviction petitioners. Since only constitutional violations may be

remedied under the Act and the right to postconviction counsel is merely statutory

(725 ILCS 5/122-1(a)(1), (f) (West 2014); Flores, 153 Ill. 2d at 276-77), petitioner

argues that those alleging unreasonable assistance of postconviction counsel under

the Act would have “no recourse” if Krankel is not extended. As examples of the

purported injustice, he cites the inability to seek relief if postconviction counsel

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fails to advance all the claims in a pro se postconviction petition, fails to present

supporting evidence, neglects to elicit responses from witnesses that corroborate

other testimony, or fails to investigate or call a particular witness, as alleged here.

¶ 38 The flaw in petitioner’s argument is that it presupposes a higher standard of

professional conduct for postconviction counsel than is imposed by Rule 651(c),

the gold standard for postconviction duties. As we have explained, Rule 651(c)

requires only that postconviction counsel certify having undertaken the limited

actions prescribed. Those requirements do not include bolstering every claim

presented in a petitioner’s pro se postconviction petition, regardless of its legal

merit, or presenting each and every witness or shred of evidence the petitioner

believes could potentially support his position. See Ill. S. Ct. R. 651(c) (eff. July 1,

2017) (requiring postconviction counsel to certify they have “consulted with

petitioner by phone, mail, electronic means or in person,” “examined the record”

as needed to shape the petitioner’s pro se claims, and “made any amendments to

the petitions filed pro se that are necessary for an adequate presentation” of those

claims). Notably, petitioner does not cite any case law where an appeal from the

rejection of a claim of noncompliance with Rule 651(c) was found to be a patently

inadequate remedy, highlighting the inherently hypothetical nature of his assertion.

¶ 39 Petitioner’s hypothetical examples are also unpersuasive because the outcome

on appeal would be the same both with or without a preliminary Krankel hearing.

New counsel need not be appointed for a pro se postconviction petitioner if the

claims raised are either objectively meritless or relate only to alleged errors in trial

strategy. See Taylor, 237 Ill. 2d at 75 (stating that, “[i]f the court determines the

[Krankel] claim lacks merit or pertains only to matters of trial strategy, new counsel

need not be appointed and the pro se motion may be denied”); People v. Ramey,

152 Ill. 2d 41, 52 (1992) (declining to find error in the trial court’s denial of new

counsel because prior counsel’s alleged errors “related to trial tactics”). As we

recently reiterated, “matters of trial strategy are generally immune from claims of

ineffective assistance of counsel.” People v. Dupree, 2018 IL 122307, ¶ 44. We

conclude that many of petitioner’s cited examples fall under the heading of “trial

strategy,” such as counsel’s decisions to call and examine witnesses and to present

evidence. See People v. West, 187 Ill. 2d 418, 432 (1999) (listing examples of

decisions deemed to be trial strategy). Errors in trial strategy do not constitute

ineffective assistance unless “ ‘counsel entirely fails to conduct any meaningful

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adversarial testing’ ” (West, 187 Ill. 2d at 432-33 (quoting People v. Guest, 166 Ill.

2d 381, 394 (1995)), a claim petitioner has not made here. Thus, we reject his

argument that fairness and judicial economy necessitate the expansion of Krankel

to claims of unreasonable assistance by postconviction counsel.

¶ 40 Nonetheless, in Ayres we noted one other potential benefit of Krankel

proceedings: to “ ‘potentially limit issues on appeal.’ ” Ayres, 2017 IL 120071, ¶ 21

(quoting Jolly, 2014 IL 117143, ¶ 29). The focus of that goal, however, is far more

closely allied with posttrial proceedings than with postconviction ones. While

appeals from posttrial motions require review of a myriad of claims, the bases for

appeals in postconviction cases are far more limited, encompassing only substantial

issues of constitutional proportion that could not have been presented on direct

appeal. 725 ILCS 5/122-1(a)(1) (West 2010); People v. Young, 2018 IL 122598,

¶ 16. Consequently, the utility of using Krankel proceedings to limit issues on

appeal is greatly diminished in the postconviction setting, where the potential

appealable issues are far fewer in number.

¶ 41 Overall, none of the benefits petitioner cites from extending Krankel to

allegations that postconviction counsel provided inadequate assistance are as

compelling as they were in their original posttrial context. Consequently, the

analytical weight of those benefits in postconviction cases is lower than in our

original Krankel calculus, while the weight of the adverse effects on available

resources is necessarily higher.

¶ 42 After comparing the potential positive and negative consequences of extending

Krankel, we conclude that the increased demand on trial court resources needed to

accommodate the additional postconviction claims is not offset by a comparable

increase in benefits. In fact, the potential benefits of applying Krankel in

postconviction cases are significantly lower than they are in the posttrial setting.

Employing Krankel hearings in postconviction cases simply fails to advance the

goals underlying our original creation of that procedure in posttrial proceedings.

Without a sufficient policy basis for expanding Krankel, we decline petitioner’s

invitation to extend those proceedings to pro se allegations of unreasonable

assistance by postconviction counsel.

¶ 43 Our decision not to extend Krankel to postconviction counsel is further backed

by “society’s strong interest in the finality of convictions based on guilty pleas.”

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People v. Brown, 2017 IL 121681, ¶ 53 (citing Lee v. United States, 582 U.S. ___,

___, 137 S. Ct. 1958, 1967 (2017)). In Brown, the defendant alleged his trial

counsel provided ineffective assistance by erroneously advising him on the

percentage of his prison sentence that would have to be served if he entered a guilty

plea. Because he failed to establish a substantial violation of his constitutional right

to effective assistance, we upheld the dismissal of his postconviction petition,

noting the strong need for finality when a guilty plea is entered. Brown, 2017 IL

121681, ¶¶ 53, 55.

¶ 44 Here, petitioner’s claim of unreasonable assistance arises solely from legislative

grace, without any supporting constitutional foundation. It cannot realistically be

said that society’s interest in the outcome of the instant appeal is more compelling

than it was in Brown. Society’s interest in finality is just as strong here as it was in

Brown, adding support to our decision not to expand Krankel to postconviction

counsel. If the legislature wishes to alter that outcome, of course, it may amend the

Act to provide postconviction petitioners, such as Custer, the statutory benefit of

Krankel-like proceedings.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we decline petitioner’s invitation to extend the posttrial

motion procedures we created in Krankel to allegations of unreasonable assistance

by postconviction counsel. Nonetheless, because the appellate court’s resolution of

this case did not require it to consider other issues petitioner raised on appeal before

it, we remand this cause to that court for its initial consideration of those matters.

¶ 47 Appellate court judgment reversed.

¶ 48 Cause remanded.

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