# People v. Custer

> Illinois Supreme Court · November 2, 2020 · 2019 IL 123339

URL: https://www.frixlaw.com/law-library/cases/4582959

## Case

- **Court:** Illinois Supreme Court
- **Decided:** November 2, 2020
- **Citations:** 2019 IL 123339
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

Digitally signed by
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document
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4582959. Public record. Not legal advice.