People v. Custer

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Supreme Court Date: 2020.11.02

11:32:34 -06'00'

People v. Custer, 2019 IL 123339

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN

Court: MICHAEL CUSTER, Appellee.

Docket No. 123339

Filed September 19, 2019

Decision Under Appeal from the Appellate Court for the Third District; heard in that

Review court on appeal from the Circuit Court of Peoria County, the Hon.

Albert Purham, Judge, presiding.

Judgment Appellate court judgment reversed.

Cause remanded.

Counsel on Lisa Madigan, Attorney General, of Springfield (David L. Franklin,

Appeal Solicitor General, and Michael M. Glick and Michael L. Cebula,

Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Peter A. Carusona, Deputy

Defender, and Steven Varel, Assistant Appellate Defender, of the

Office of the State Appellate Defender, of Ottawa, for appellee.

Justices 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 exchange, the State recommended

consecutive sentences of 4½ years and 5 years in prison, respectively, and agreed to dismiss

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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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 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

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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 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 123182, ¶ 26. Here, petitioner

argues the State’s mootness claim was forfeited. Because reviewing courts generally do not

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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.

¶ 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

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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.

¶ 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 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

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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 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.

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¶ 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 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

adversarial testing’ ” (West, 187 Ill. 2d at 432-33 (quoting People v. Guest, 166 Ill. 2d 381,

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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.” 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.

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¶ 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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