People v. Johnson

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Appellate Court Date: 2021.02.03

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People v. Johnson, 2019 IL App (1st) 162999

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-

Caption Appellee, v. MICHAEL JOHNSON, Petitioner-Appellant.

District & No. First District, Fourth Division

No. 1-16-2999

Filed December 26, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 03-CR-8365; the

Review Hon. Diane Cannon, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Thomas A. Lilien, and Darren E. Miller, of State

Appeal Appellate Defender’s Office, of Elgin, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

John E. Nowak, and Noah Montague, Assistant State’s Attorneys, of

counsel), for the People.

Panel PRESIDING JUSTICE GORDON delivered the judgment of the

court, with opinion.

Justices Lampkin and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant Michael Johnson appeals from the second-stage dismissal of his petition for

postconviction relief. After a jury trial, he was convicted of first degree murder with a firearm

and sentenced to 75 years with the Illinois Department of Corrections.

¶2 In this appeal, defendant claims (1) that his trial counsel was ineffective for failing to move

to suppress his statements on the ground that the police questioned him after he had invoked

his right to counsel in violation of Edwards v. Arizona, 451 U.S. 477 (1981), and (2) that his

appellate counsel was ineffective for failing to argue that his trial counsel was ineffective for

failing to raise the Edwards violation.

¶3 In response, the State argues (1) that defendant’s trial counsel did, in fact, claim in

defendant’s pretrial motion to suppress, among other things, that police interrogation continued

after defendant had asserted his right to counsel; (2) that the trial court held a suppression

hearing on this motion, at which defendant testified; (3) that, during arguments at the hearing,

the State cited People v. Perry, 147 Ill. 2d 430 (1992), an Illinois Supreme Court case that

discussed the United States Supreme Court case of Edwards; and (4) that the trial court denied

defendant’s suppression motion finding, “based on the credibility of the witnesses,” that

defendant received Miranda warnings and voluntarily chose to make a statement. See Miranda

v. Arizona, 384 U.S. 436 (1966).

¶4 In reply, defendant argues (1) that, although defendant’s pretrial motion claimed that

interrogation continued after defendant invoked his right to counsel, the motion did not

specifically cite Edwards; (2) that, although the State cited an Illinois case discussing Edwards,

defendant’s trial counsel did not offer an argument in response; and (3) that, although the trial

court denied defendant’s motion on credibility grounds, the trial court did not specifically

articulate a ruling on the Edwards issue. In addition, defendant argues that this court may not

consider credibility issues until the third stage of the postconviction process.

¶5 For the reasons stated below, we find that this issue was litigated prior to defendant’s trial

and, thus, neither his trial counsel nor his appellate counsel can be found ineffective for failing

to raise it. As a result, we affirm the second-stage dismissal of defendant’s postconviction

petition.

¶6 BACKGROUND

¶7 This court has set forth the facts of this case and discussed the evidence at trial in a prior

order (People v. Johnson, No. 1-08-1095 (2010) (unpublished order under Illinois Supreme

Court Rule 23)), which we incorporate here by reference. Since we do not need to consider the

sufficiency of evidence at trial, we provide here only a short synopsis of the offense and the

evidence.

¶8 The State’s evidence at trial established that defendant, acting as a hit man for drug dealer

Marc Norfleet, killed police informant Adam Schultz. The evidence at trial included

defendant’s own videotaped statement, in which defendant admitted that, in exchange for

Norfleet’s promises of both money and entry into the drug business, he shot the victim. During

his videotaped statement, defendant stated that Norfleet drove him, as well as defendant’s

nephew Larry Jones and the victim, to the mouth of an alley where defendant and the victim

exited the vehicle. In the alley, the victim turned his head, and defendant shot him once in the

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head. Defendant’s confession was corroborated by the trial testimony of defendant’s nephew

Larry Jones, who testified that Jones, Norfleet, defendant, and the victim drove around; that

they made a stop at which defendant and the victim exited the vehicle; and that Jones and

Norfleet drove away and returned after 15 minutes to pick up defendant, who was then alone.

In addition, defendant stated on the videotape that Norfleet had given him a .38-caliber

revolver, and that fact was corroborated by the testimony of a firearms expert who testified

that the bullet fragments found in the victim’s body came from a single .38-caliber bullet.

¶9 The issue in this appeal concerns defendant’s pretrial suppression motion, the subsequent

hearing on that motion, the parties’ arguments at the hearing, and the trial court’s ruling at the

conclusion of the hearing, so we describe those facts in more detail.

¶ 10 On February 28, 2007, defendant’s trial counsel filed a motion to suppress statements that

claimed, among other things, “[t]hat the statements sought to be suppressed were obtained as

a result of interrogation which continued after the defendant had elected to remain silent and

had elected to consult with an attorney prior to further questioning in violations of the 5th and

14th Amendments.”

¶ 11 At the suppression hearing held on September 26, 2007, both sides waived opening

statements, but the State asked “that the defendant be sworn to the motion.” Defendant then

swore under oath that he had read the motion.

¶ 12 Detective John Callaghan testified that, on December 20, 2001, while working at Area 5 in

Chicago, he was assigned to investigate the murder of Adam Schultz, which had occurred five

days earlier. In connection with that investigation, he learned that Milwaukee police had

arrested defendant on July 8, 2002, regarding an unrelated murder and had also arrested

Franklin Bogan on July 9, 2002, for a narcotics offense. Between July 13 and July 23, 2002,

Callaghan interviewed Bogan because Bogan indicated he had received information about the

Schultz murder from defendant, who had been talking about it in jail. On August 13, 2002,

Callaghan interviewed Bogan again with Assistant State’s Attorney (ASA) Michael McHale

for the purpose of obtaining Bogan’s consent for a “consensual overhear.” The trial court

signed an order authorizing the consensual overhear, and between August 14 and September

3, 2002, several attempts were made to record conversations between defendant and Bogan.

¶ 13 Callaghan testified that, on August 27, 2002, he located defendant’s nephew Larry Jones

in the Cook County Jail and transported him to Area 5 to interview him; but Jones denied

knowing any of the parties involved in the Schultz murder. On the same date, August 27, 2002,

a Milwaukee detective, Paul Bratonja, and Deputy U.S. Marshal Patrick Amerson arrived in

Chicago with defendant in custody for the purpose of investigating an unrelated Milwaukee

murder. Callaghan did not know prior to that day that they were bringing defendant to Chicago.

Callaghan did not interview defendant then and was not aware of any interviews with

defendant at Area 5 on that date.

¶ 14 Callaghan testified that on that same date, August 27, 2002, he learned that codefendant

Marc Norfleet, the person who ordered the Schultz murder, had been arrested in Neenah,

Wisconsin. On September 3, 2002, Callaghan went to Milwaukee to meet with defendant at a

Milwaukee police station. In the interview room, Detective Robert Carrillo advised defendant

of his Miranda rights, and defendant indicated he understood his rights and agreed to speak

with them. The detectives confronted defendant with some of the evidence, but he denied any

knowledge of the offense. Detective Carrillo explained that an ASA from Cook County was

present in Milwaukee, and defendant indicated he would like to speak with her. The detectives

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exited the room, and ASA Ward and Detective Carrillo returned and conducted subsequent

interviews with defendant. Callaghan obtained lunch for defendant and provided him with

cigarettes but was not present for the subsequent interviews. At 5:43 p.m. on September 3,

2002, defendant provided a videotaped statement in the presence of ASA Ward and Detective

Carrillo. ASA Ward had brought with her from Chicago a tripod and a camera, which

Callaghan started before exiting the room. 1

¶ 15 Detective Callaghan testified that the entire time that he was with defendant on September

3, 2002, defendant never asked for an attorney, never indicated that he wanted to remain silent,

and never refused to talk with them. Neither Callaghan nor anyone in his presence questioned

defendant regarding the offense in Milwaukee for which defendant was being held. Neither

Callaghan nor anyone in his presence told defendant that if defendant did not cooperate he

would receive the death penalty. No one drew two boxes, labeled one box “live” and the other

box “die,” and told defendant to choose. No one told defendant that if he provided a statement

he would not receive the death penalty but that if he did not provide a statement his nephew,

Larry Jones, would be charged with first degree murder and face the death penalty.

¶ 16 On cross-examination, defendant’s trial counsel asked whether, in July 2002, Callaghan

knew that defendant had an attorney representing him on the unrelated case in Milwaukee.

Callaghan testified that he had “no idea” whether defendant had an attorney in July 2002, and

Callaghan did not check to determine if defendant was represented in the Milwaukee case. On

redirect examination, Callaghan testified that, on September 3, 2002, defendant also asked

questions and posed hypotheticals to the detectives. In response to defendant’s hypotheticals,

the detectives informed him that there was an ASA to whom he could speak. On recross-

examination, Callaghan testified that, on September 3, 2002, defendant asked “how long could

a person get for something like this” and what the possible penalties were. Callaghan did not

recall if he told defendant that “he was looking at the death penalty.” Callaghan admitted that

the police report does not indicate that defendant asked any hypothetical questions or “what-

if’s.”

¶ 17 ASA Kim Ward testified that, on August 26, 2002, she met with Detective Robert Carrillo

and ASA Michael Hale for the purpose of obtaining an arrest warrant for Marc Norfleet based

on an accountability theory. Ward traveled to Neenah, Wisconsin, on August 27, 2002, when

the Norfleet arrest warrant was executed. On September 3, 2002, she traveled with Detectives

Carrillo and Callaghan to Milwaukee to speak with defendant. The detectives interviewed

defendant first at 10:56 a.m. for a half-hour, and then Ward met with defendant at 11:45 a.m.

with Detective Carrillo. When she entered the room, she explained that she was an ASA and

not his lawyer, and he indicated that he understood that. She explained that the Miranda

warnings that he already been given still applied, and he said he understood. When she asked

defendant if he wanted to talk to her, he said yes. During the course of their conversation,

defendant received cigarettes and M&M’s. The introductions finished at noon, and the

interview itself lasted three hours. After Detective Carrillo confronted defendant with a

newspaper article concerning Norfleet’s arrest, defendant then implicated himself. When

presented with options for memorializing his statement, defendant chose a videotaped

statement, which began at 5:43 p.m. Prior to the start of the statement, defendant signed a

consent to videotape form that was also signed by Ward and Carrillo.

1

This was later contradicted by ASA Ward, who said that she started the camera.

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¶ 18 On cross-examination, Ward testified that, toward the beginning of her interview,

defendant was “giving a bunch of hypotheticals” and “initiating a lot of questions.”

Specifically, defendant asked, if someone was paid to murder someone, what would the penalty

be and would he be eligible for the death penalty. Ward replied that the death penalty was one

of the punishments. Ward testified that Detective Callaghan was not present for the video and

that she “did” the video, placing it on a tripod and trying to center it.

¶ 19 On redirect examination, Ward testified that she spoke to defendant twice outside the

presence of the detectives: once at 11:45 a.m. when Detective Carrillo went to retrieve the

Norfleet article and once at 5:30 p.m. prior to the videotaping. At 11:45 a.m. she confirmed

with defendant that the detectives had treated him well. The second time, prior to the

videotaping, she explained to defendant that she would be the person “turn[ing] it on” and she

also reviewed his Miranda rights with him, reading them word for word from a piece of paper

she carried with her. Ward told defendant that these rights applied during the entire videotaping

and that, at any point, he could stop.

¶ 20 Detective Carrillo testified that on September 2 3, 2002, he went to Milwaukee to meet

with defendant, and he and Detective Callaghan interviewed defendant starting at 10:56 a.m.

Carrillo read defendant his Miranda rights from a preprinted form. After each right, defendant

indicated verbally that he understood, and at the end, he stated that he wished to speak with

the detectives. During the ensuing half-hour interview, defendant did not implicate himself in

the offense, but he did pose “hypotheticals,” asking about penalties. That is when the detectives

asked if defendant would like to speak to an ASA, and he indicated that he would, so they

asked ASA Ward to enter. Before she entered, Carrillo informed her that he had already

advised defendant of his rights. The second interview, with ASA Ward present, began at 11:45

a.m. and lasted three hours. Ward began by advising defendant that his Miranda rights were

still in effect. Defendant implicated himself during the interview and chose to memorialize his

statement by videotape, which was done. In court, Carrillo identified the consent to videotape

form signed by defendant and Carrillo.

¶ 21 Detective Carrillo testified that at no time while defendant was with him on September 3,

2002, did defendant ask for an attorney or ask to remain silent. Defendant did not refuse to

speak with Carrillo or anyone else. Neither Carrillo nor anyone in Carrillo’s presence

questioned defendant regarding the Milwaukee case or told him that if he did not cooperate he

would receive the death penalty. Carrillo did not draw two boxes, one that said “live” and one

that said “die,” and ask defendant to choose between them. Neither Carrillo nor anyone in his

presence told defendant that if he gave a statement he would not receive the death penalty.

Carrillo also did not tell defendant that if he did not cooperate his nephew Larry Jones would

be charged with first degree murder and would face the death penalty.

¶ 22 On cross-examination, Carrillo testified that he did not take any notes during the first

interview at 10:56 a.m. or during the second interview at 11:45 a.m., and he did not recall

whether defendant was handcuffed. The interview room was a small, windowless room. During

the questioning, Carrillo told defendant that he was accused of shooting Adam Schultz in the

head in Chicago, at a certain date, time, and place. Carrillo’s report does not state that defendant

initially denied any involvement in the offense or that defendant posed hypotheticals to the

2

The transcript initially states “December 3, 2002”; however, later in the testimony, the date given

is September 3, 2002. Thus, the initial reference to December appears to be a typographical error.

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detectives and to the ASA. The newspaper article that Carrillo showed defendant indicated not

only that Norfleet was under arrest but also that there was another suspect who was considered

to be the “hit man.”

¶ 23 On cross-examination, defendant’s trial counsel asked: “[Defendant] was in custody on an

unrelated charge. Did you try to contact his attorney for him?” Carrillo answered no. ASA

Ward did inform defendant that this case was potentially a death penalty case.

¶ 24 The State rested, and the defense called Paul Bratonja, who testified that on August 27,

2002, he was employed as a police officer with the Milwaukee police department. However,

he was on loan at that time to the United States Marshals Service and deputized as a United

States marshal. On August 27, 2002, between 7 and 8 a.m., Bratonja and Deputy United States

Marshal Patrick Amerson arrived at the Milwaukee county jail to pick up defendant, in

response to a request from a lieutenant or captain in the Milwaukee Police Department to

transport him to Chicago. Defendant was assisting a Milwaukee investigation and was

expected to identify certain houses in Chicago. When they arrived, defendant stated that he did

not want to go, and Bratonja said “that was fine with me.” But then defendant asked if he would

receive lunch. When Bratonja said yes, defendant agreed to go.

¶ 25 Bratonja testified that, during the ride, Bratonja stated that defendant was expected to

identify certain addresses. As Amerson drove, defendant identified locations where certain

drug transactions had occurred, and Bratonja wrote down the locations. Bratonja had been

instructed that, after receiving information from defendant, the marshals were to go to Area 5

and transmit the information to Detective John Callaghan, which they did. As they drove,

defendant was seated in the back of a prisoner van, shackled by his ankles, Bratonja was in the

front passenger seat, and Amerson was driving. When they arrived at Area 5, Amerson

remained in the van, and Bratonja went to the door of Area 5 and asked someone to contact

Detective Callaghan. While they waited, the marshals opened the back door of the van so that

defendant could smoke a cigarette, and both marshals stood immediately outside the open door.

After Detective Callaghan came down, Bratonja provided him with the information, and then

the marshals and defendant returned to Milwaukee. Bratonja later prepared a one-page report.

¶ 26 On cross-examination, Bratonja testified that there were no plans between his office and

the Chicago Police Department to bring defendant to Chicago in August. The purpose of the

trip was to assist the Milwaukee Police Department in its investigation of a murder in

Milwaukee. Bratonja had no idea where to go in Chicago; defendant directed them. However,

defendant had no addresses; he provided only intersections. Bratonja felt defendant took them

on a “wild goose chase.” Bratonja never spoke to Detective Callaghan prior to their arrival at

Area 5, and Detective Callaghan did not interview defendant on that day. Defendant was never

out of Bratonja’s presence and never left the van. The entire time that they were at Area 5 was

20 minutes.

¶ 27 Defendant, age 32, testified that on September 3, 2002, he was in custody in Milwaukee

on an unrelated charge and had been in custody since July 7, 2002. On the morning of

September 3, he was transported from the Milwaukee county jail to a Milwaukee police station.

At the jail, he had been told that he was going to speak with detectives about the Milwaukee

case. However, at the police station, he was questioned by police officers and an ASA from

Chicago. A Milwaukee police officer had placed him in a small, windowless room, and

departed, leaving defendant alone in the room for 5 or 10 minutes. Defendant was not

handcuffed at any point when he was in that room. After the Milwaukee officer departed, the

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next people to enter were Detectives Carrillo and Callaghan, who asked if defendant

remembered him. Defendant did remember Callaghan, having met him on August 27, 2002, at

Area 5.

¶ 28 Defendant testified that, on August 27, 2002, the sheriffs at the Milwaukee county jail

woke him up early and told him he had “traffic court.” They took him to a room where two

deputy marshals were waiting. The marshals asked him if he knew why they were there, and

he said no. The marshals said that they had been advised that he was cooperating with the

police on the Milwaukee case and that they were supposed to bring him to Chicago so that he

could show them around. Defendant told them he was not “going anywhere with them.” After

he stated that, “[t]hey told me that they had been advised that I would. So I told them to let me

talk to my lawyer.” Then, “[t]hey had the sheriff take me back up stairs to my tier so I could

get my lawyer’s card and his number, and we came back with the card. I gave it to them. They

said they attempted to call him, but he wasn’t answering his phone.” Defendant replied that he

did not want to go without talking to his attorney. The marshals made another phone call and

told defendant that they had talked to an ASA on his case in Milwaukee and that if defendant

did not cooperate, they were “going to upgrade [the] charge.” So defendant cooperated and

came to Chicago with them.

¶ 29 Defendant testified that, as they drove to Chicago, he was in the back and the two marshals

were in the front. After defendant directed them to certain places, they asked him if he knew

the directions to Area 5, which he did. The marshal in the front passenger seat said he had a

friend there whom he wanted to talk to. After arriving at Area 5, the marshal in the passenger

seat exited the vehicle, made a call on his phone, reentered, and told the driver to drive around

to the back of Area 5, which he did. The marshal in the passenger seat exited again and made

a phone call, and Detective Callaghan came out. Defendant was able to observe Detective

Callaghan through the windows of the van, as Callaghan exited Area 5 and spoke with the

marshal who was standing outside the van. The marshal then opened up the sliding door at the

back of the van, and Detective Callaghan introduced himself to defendant, and defendant asked

him for a cigarette. Callaghan went back into the building and returned to give defendant a

cigarette. Defendant did not enter Area 5, but he was able to observe his nephew, Larry Jones,

in Area 5 because Jones was standing on a landing between floors and there were glass

windows.

¶ 30 Defendant testified that Detective Callaghan walked away and the marshals closed the

sliding door and reentered the van. Defendant asked them what his nephew was doing at Area

5 and pointed. The marshals asked him what he was talking about because they did not see

anyone where he was pointing. They then drove back to Milwaukee.

¶ 31 Defendant testified that, on September 3, 2002, he was in an interrogation room in

Milwaukee when Detectives Carrillo and Callaghan entered, and Callaghan asked if defendant

remembered him. They did not read defendant his rights and started to question him about the

Schultz murder. When they started to question him, defendant told them that he did not know

what they were talking about, that he did not want to speak to them, and that he wanted to talk

to his lawyer. The detectives told him that the lawyer from his Milwaukee case would not have

anything to do with his Chicago case, and they continued to question him about the Schultz

murder. At some point, defendant agreed to give them a statement because he was scared. He

was scared because the detectives kept telling him he was going to receive the death penalty

and this was his chance to help himself. They told him whether he cooperated with them was

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going to determine whether he lived or died. If he did not cooperate, they were going to charge

defendant’s nephew, Larry Jones, and seek the death penalty against him. However, if

defendant cooperated, they would leave his nephew out of the case.

¶ 32 Defendant testified that Detective Callaghan drew one box and wrote “live” over it and

drew another box and wrote “die” over it, then asked defendant to choose one. The detectives

also showed defendant a newspaper article that talked about the death penalty.

¶ 33 On cross-examination, defendant testified that in September 2002 he was 27 years old.

When he met with ASA Ward, he understood that she was not his attorney. Ward did not try

to trick him, and she did provide Miranda warnings prior to his videotaped statement.

Defendant testified that the detectives did not provide Miranda warnings and he did not know

if he had stated on the videotape that they had. Defendant understood that he could have an

attorney present when he gave the videotaped statement. Defendant had been arrested before

and had received Miranda warnings before. On July 8, 2002, he was arrested in Milwaukee for

first degree murder, and the Milwaukee detectives had read him the Miranda warning on that

charge. On October 7, 2001, he was arrested for possession of a firearm by a felon and received

Miranda warnings by the Milwaukee police on that charge. As a result, defendant knew his

Miranda rights, but he denied that his videotaped statement to ASA Ward on September 2,

2002, was voluntary.

¶ 34 Defendant testified that, prior to the videotaping, he read and signed a form stating that he

was consenting to the videotaping, but that the statement itself was not voluntary. Defendant

acknowledged that, during the videotaping, he did not complain of mistreatment by the police

and did not ask for an attorney. In fact, he stated on the video that they treated him “pretty

good.” When asked on the videotape if he gave this statement freely and voluntarily, he

answered yes. Defendant acknowledged that, on the videotape, he agreed that no threats or

promises had been made. Defendant testified that he had an opportunity to speak with ASA

Ward alone and he did not complain to her about not receiving an attorney. He did ask ASA

Ward, if he cooperated and gave the statement that the detectives wanted, whether he would

then not receive the death penalty. She said that she was not the ASA on the case, so that it

was not “her call to make.” Thus, defendant provided the videotaped statement knowing that

the death penalty was still a possibility. With respect to the article the detectives showed him,

defendant testified that he was in the article too and that their “purpose” was “to show” him

“that this, in fact, was a case that [he] could get the death penalty on.” Defendant testified that

he gave the videotaped statement because he was scared of receiving the death penalty and it

was a chance for him to help himself and his nephew avoid the death penalty.

¶ 35 During arguments on the motion, the State waived its opening statement and reserved its

rebuttal argument. In the defense’s argument, defendant’s trial counsel emphasized

defendant’s fear of the death penalty, as corroborated by both the ASA and the detectives, and

argued that threats and promises regarding both the death penalty and his nephew overbore

defendant’s will, rendering his statement involuntary. At the start of the State’s rebuttal, the

prosecutor directed the trial court’s attention “to the allegations that are actually laid out in the

motion” and went through the allegations, claim by claim. In response to defendant’s claim

that police interrogated him despite his request for counsel, the State cited the Illinois Supreme

Court case of Perry, 147 Ill. 2d 430.

¶ 36 After hearing all the evidence and listening to arguments, the trial court denied the

suppression motion “based on the credibility of the witnesses.”

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¶ 37 In defendant’s initial pro se postconviction petition and his supplemental postconviction

petition filed by counsel, defendant raised numerous claims, but he pursues only one claim on

this appeal.

¶ 38 In his supplemental petition, defendant claims, with respect to the suppression motion, that

trial counsel did not “clearly articulate” an Edwards claim. The petition observed that Edwards

requires that, once a suspect invokes his fifth amendment right to counsel, all custodial

interrogation must cease and it may resume only if counsel has been made available to the

defendant or if the defendant initiates communication. Edwards, 451 U.S. at 484-85.

¶ 39 The trial court dismissed defendant’s petitions, including the claim that defendant asserts

on this appeal, finding that defendant’s trial counsel “conducted a full” suppression “hearing

during which he ably advocated on behalf of his client.” The court found that defendant’s trial

counsel “vehemently argued that [defendant] was (1) coerced into making his statement;

(2) not informed of his Miranda rights; and (3) interrogated after he had elected to remain

silent and had elected to consult with an attorney prior to further questioning” and that counsel

“cross-examined every single witness.”

¶ 40 A timely notice of appeal was filed, and this appeal followed. For the following reasons,

we affirm.

¶ 41 ANALYSIS

¶ 42 I. Stages of Postconviction Proceedings

¶ 43 In the case at bar, defendant claims that the trial court erred by dismissing his

postconviction petition at the second stage.

¶ 44 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides

a statutory remedy for criminal defendants who claim that their constitutional rights were

violated. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not intended to be a substitute

for a direct appeal; instead, it is a collateral proceeding, which attacks a final judgment.

Edwards, 2012 IL 111711, ¶ 21.

¶ 45 The Act provides for three stages of review by the trial court. People v. Domagala, 2013

IL 113688, ¶ 32. At the first stage, the trial court may summarily dismiss a petition that is

frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Domagala, 2013

IL 113688, ¶ 32. “[A] petition is frivolous or patently without merit only if it has no ‘arguable

basis either in law or in fact.’ ” People v. Petrenko, 237 Ill. 2d 490, 496 (2010) (quoting People

v. Hodges, 234 Ill. 2d 1, 16 (2009)).

¶ 46 If a trial court does not dismiss a petition at the first stage, the petition then advances to the

second stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4 (West

2018); Domagala, 2013 IL 113688, ¶ 33. After counsel determines whether to amend the

petition, the State may file either a motion to dismiss or file an answer to the petition. 725 ILCS

5/122-5 (West 2018); Domagala, 2013 IL 113688, ¶ 33. At the second stage, the trial court

must determine “whether the petition and any accompanying documentation make a substantial

showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 47 If the defendant makes a “substantial showing” at the second stage, then the petition

advances to a third-stage evidentiary hearing. Domagala, 2013 IL 113688, ¶ 34. At a third-

stage evidentiary hearing, the trial court acts as a factfinder in determining witness credibility,

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the weight to be given particular testimony and evidence, and the resolution of any evidentiary

conflicts. Domagala, 2013 IL 113688, ¶ 34.

¶ 48 When a matter is decided without an evidentiary hearing, as it was in this case, we review

the trial court’s decision under a de novo standard of review. See People v. Hommerson, 2014

IL 115638, ¶ 6 (first-stage summary dismissal); People v. Tyler, 2015 IL App (1st) 123470,

¶ 151 (second-stage dismissal (citing People v. Pendleton, 223 Ill. 2d 458, 473 (2006))). Under

a de novo standard, the reviewing court owes no deference to the trial court’s judgment or

reasoning. Tyler, 2015 IL App (1st) 123470, ¶ 151. De novo consideration means that the

reviewing court performs the same analysis that a trial judge would perform. Tyler, 2015 IL

App (1st) 123470, ¶ 151.

¶ 49 In addition, a reviewing court may affirm on any basis found in the record. In re

Gabriel W., 2017 IL App (1st) 172120, ¶ 31; People v. Miles, 2017 IL App (1st) 132719, ¶ 22;

People v. Daniel, 2013 IL App (1st) 111876, ¶ 37 (“we may affirm on any basis appearing in

the record, whether or not the trial court relied on that basis or its reasoning was correct”).

¶ 50 II. Ineffective Assistance of Counsel

¶ 51 Defendant asserts two layers of ineffective assistance of counsel—ineffectiveness by both

his trial counsel and his counsel on direct appeal.

¶ 52 Every Illinois defendant has a constitutional right to the effective assistance of counsel

under the sixth amendment to the United States Constitution and article I, section 8, of the

Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Domagala,

2013 IL 113688, ¶ 36.

¶ 53 The Illinois Supreme Court has found that, to determine whether a defendant was denied

his or her right to effective assistance of counsel, an appellate court must apply the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688,

¶ 36 (citing People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois));

People v. Colon, 225 Ill. 2d 125, 135 (2007) (also citing Albanese). Under Strickland, a

defendant must prove both (1) that his attorney’s actions constituted errors so serious as to fall

below an objective standard of reasonableness and (2) that, absent these errors, there was a

reasonable probability that his trial would have resulted in a different outcome. Domagala,

2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694); People v. Ward, 371 Ill. App. 3d

382, 434 (2007) (also citing Strickland).

¶ 54 “The Strickland standard applies equally” to claims concerning trial and appellate counsel.

Petrenko, 237 Ill. 2d at 497. A defendant raising a claim concerning appellate counsel “must

show both that appellate counsel’s performance was deficient and that, but for counsel’s errors,

there is a reasonable probability that the appeal would have been successful.” Petrenko, 237

Ill. 2d at 497. If a postconviction petition claims that appellate counsel was ineffective for

failing to raise trial counsel’s ineffectiveness, a reviewing court must first consider whether

the claim of trial counsel’s ineffectiveness would have succeeded on direct appeal. See

Petrenko, 237 Ill. 2d at 501-52. If the underlying claim would not have succeeded on direct

appeal, then “there is no arguable legal basis” for defendant’s claim of ineffective assistance

of appellate counsel, and “summary dismissal of his pro se postconviction [petition]” is

“proper.” Petrenko, 237 Ill. 2d at 501-02.

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¶ 55 At the second stage of proceedings under the Act, a petition alleging ineffective assistance

of counsel must make (1) a substantial showing that counsel’s performance fell below an

objective standard of reasonableness and (2) a substantial showing that the defendant was

prejudiced. See Edwards, 197 Ill. 2d at 246; Petrenko, 237 Ill. 2d at 497 (citing Hodges, 234

Ill. 2d at 17).

¶ 56 To prevail, a defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill. 2d

at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). That means that, if an ineffective-

assistance claim can be disposed of because the defendant cannot satisfy one prong, we need

not determine the remaining prong. People v. Graham, 206 Ill. 2d 465, 476 (2003). In the case

at bar, we do not need to consider the second prong of the Strickland test since the first prong

is not satisfied. See Graham, 206 Ill. 2d at 476.

¶ 57 III. Trial Strategy

¶ 58 To establish the first prong, a defendant must overcome the strong presumption that the

challenged action or inaction may have been the product of sound trial strategy. People v.

Manning, 241 Ill. 2d 319, 327 (2011); People v. Banks, 2016 IL App (1st) 131009, ¶ 123.

Matters of trial strategy are generally immune from claims of ineffective assistance of counsel.

Manning, 241 Ill. 2d at 327; Banks, 2016 IL App (1st) 131009, ¶ 123.

¶ 59 “[E]ffective assistance of counsel refers to competent, not perfect, representation.” People

v. Palmer, 162 Ill. 2d 465, 476 (1994); People v. Stewart, 104 Ill. 2d 463, 491-92 (1984). Since

a defendant is “entitled to reasonable, not perfect, representation,” “mistakes in strategy or in

judgment do not, of themselves, render the representation incompetent.” People v. Fuller, 205

Ill. 2d 308, 331 (2002). A defendant must overcome “the strong presumption that counsel’s

performance fell within [the] wide range of reasonable professional assistance.” Palmer, 162

Ill. 2d at 476.

¶ 60 Although an argument by counsel may not ultimately succeed, selecting which issues to

argue is generally viewed as “the result of considered trial strategy and thus immune from an

ineffectiveness claim.” People v. Trice, 2017 IL App (1st) 152090, ¶ 69; see also People v.

Edmondson, 2018 IL App (1st) 151381, ¶ 36 (a counsel’s tactical decisions in her closing

presentation are at the quintessential heart of trial strategy).

¶ 61 On this appeal, defendant claims that his trial counsel did not clearly articulate an Edwards

claim that police interrogated defendant after he had asserted his right to counsel. In Edwards,

the United States Supreme Court “h[e]ld that when an accused has invoked his right to have

counsel present during custodial interrogation, a valid waiver of that right cannot be established

by showing only that he responded to further police-initiated custodial interrogation even if he

has been advised of his rights.” Edwards, 451 U.S. at 484. The Court “further h[e]ld that an

accused, *** having expressed his desire to deal with the police only through counsel, is not

subject to further interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or conversation with

the police.” Edwards, 451 U.S. at 484-85.

¶ 62 Defendant argues pursuant to Edwards that, once he asserted his right to counsel on August

27, 2002, to the United States marshals, all police-initiated custodial interrogation had to cease

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until counsel was made available to him. See People v. Lira, 318 Ill. App. 3d 118, 126 (2001). 3

Defendant argues that his trial counsel was ineffective for failing to “clearly articulate” and

pursue this claim.

¶ 63 It is stating the obvious to observe that, for Edwards to require suppression, there must first

be a factual finding that the defendant, in fact, invoked his right to counsel. E.g., Lira, 318 Ill.

App. 3d at 124 (the appellate court found that it was not against the manifest weight of the

evidence for the trial court to find that the defendant invoked his fifth amendment right to

counsel). At the suppression hearing, defendant testified that he asked to speak to his counsel

on August 27, 2002, when the marshals arrived to transport him from Milwaukee to Chicago

for the day. He claims that it was his desire to talk to his attorney that caused him to balk,

initially, at traveling with the marshals to Chicago. However, contrary to defendant’s

testimony, one of the marshals testified that, once defendant heard he would receive lunch, he

agreed to go. Defendant does not explain why, if the trial court was not persuaded by his

testimony about repeated rights violations, it was ineffective of counsel not to forcefully argue

this particular one.

¶ 64 In the case at bar, defendant’s trial counsel did claim in a pretrial suppression motion that

police interrogated defendant after he had asserted his right to counsel in violation of his fifth

amendment rights. At the suppression hearing, defendant testified repeatedly that he had

asserted his right to counsel, both on August 27, 2002, when the marshals arrived in Milwaukee

to bring him to Chicago, and on September 3, 2002, when Detectives Carrillo and Callaghan

arrived in Milwaukee to interview him about the Schultz murder. At the conclusion of the

suppression hearing, during arguments, the State cited an Illinois case that discussed Edwards.

In its ruling on defendant’s pretrial motion, the trial court denied the motion based on the

witnesses’ respective credibility and resolved all factual conflicts in the State’s favor. The fact

that defendant’s trial counsel did not specifically cite Edwards in the pretrial motion is not

dispositive, particularly where he made sure that the claim was set forth during defendant’s

suppression testimony. The fact that trial counsel chose not to respond to a specific case cited

by the State and chose to emphasize other points during argument was a matter of trial strategy

that is immune from an ineffectiveness claim. See Edmondson, 2018 IL App (1st) 151381,

¶ 36; Trice, 2017 IL App (1st) 152090, ¶ 69. At the suppression hearing, the State waived its

initial argument, thereby forcing the defense to argue first, without knowing what the State

would argue. Defense counsel could have asked the trial court for an opportunity to respond

but chose not to. Again, this was a strategic choice. The fact that the trial court did not address

each claim when denying defendant’s motion does not mean that the matter was not fully

litigated. Defendant claimed in his testimony that he asserted his right to counsel; and the trial

court simply found him, overall, not credible.

¶ 65 In sum, we cannot find trial counsel ineffective for failing to raise a claim that was, in fact,

raised, and we cannot find appellate counsel ineffective for the same reason.

3

In Lira, the knowledge by Iowa police of a defendant’s invocation of his right to counsel was

imputed to an Illinois police officer where the Illinois police officer was aware that defendant was being

held in Iowa for an Iowa offense and, thus, had reason to expect that the defendant might have invoked

his right to counsel during an Iowa police interrogation. Lira, 318 Ill. App. 3d at 126.

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¶ 66 CONCLUSION

¶ 67 For the foregoing reasons, we affirm the trial court’s second-stage dismissal of defendant’s

postconviction petition.

¶ 68 Affirmed.

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