                                      2020 IL 123505



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS




                                   (Docket No. 123505)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                        LANARD GAYDEN, Appellant.


                             Opinion filed February 21, 2020.



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

        Justices Kilbride, Garman, Karmeier, Theis, and Neville concurred in the
     judgment and opinion.

        Chief Justice Burke concurred in part and dissented in part, with opinion.



                                        OPINION

¶1      Following a bench trial in Cook County circuit court, defendant Lanard Gayden
     was convicted of unlawful use or possession of a weapon for possessing a shotgun
     “having one or more barrels less than 18 inches in length,” in violation of section
     24-1(a)(7)(ii) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-
     1(a)(7)(ii) (West 2014)). Defendant was sentenced to two years in prison and one
     year of mandatory supervised release (MSR). Defendant appealed, arguing,
     inter alia, that his trial counsel was ineffective for failing to file a motion to
     suppress the evidence of his guilt. The appellate court declined to decide the
     ineffective assistance of counsel claim, finding that the record was insufficient to
     determine the issue. The appellate court noted that defendant could pursue
     collateral relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
     et seq. (West 2014)).

¶2       Defendant filed a petition for rehearing, informing the appellate court that he
     lacked standing to file a petition for postconviction relief because he had completed
     his term of MSR while his appeal was pending. 2018 IL App (1st) 150748-U, ¶ 28.
     Defendant also argued that the appellate court erred in finding that the record was
     insufficient to consider his claim of ineffective assistance of counsel. Id. In a
     modified opinion upon denial of rehearing, the appellate court held that, because
     defendant had not informed the court that he had been released from custody when
     he filed his appeal, the court would not consider this new argument upon rehearing.
     Id. The appellate court also found that defendant’s argument concerning his
     ineffective assistance claim was impermissible reargument. Id.

¶3       This court subsequently allowed defendant’s petition for leave to appeal. Ill. S.
     Ct. R. 315(a) (eff. Apr. 1, 2018).


¶4                                    BACKGROUND

¶5       Defendant was arrested on February 15, 2014, at 8952 S. Burley Avenue in
     Chicago. The arrest report stated the following. Officers were dispatched to a call
     of a man with a gun at 8952 S. Burley Avenue. Police officer Patrick Glinski
     knocked on the door of the listed address. Defendant answered the door holding a
     shotgun. Defendant was ordered to surrender the weapon. Defendant instead threw
     the shotgun and attempted to slam the door shut. Officer Glinski then breached the
     front door. While attempting to place defendant under arrest, defendant pulled
     away, disobeyed verbal commands, and stiffened his arms and body, causing
     Officer Glinski to conduct an emergency takedown.




                                             -2-
¶6       After defendant was placed into custody, Sierra Keys, defendant’s girlfriend,
     told the officers that she had had a verbal altercation with defendant, after which
     defendant retrieved a shotgun from the bedroom he shared with Keys. Defendant
     ordered Keys to pack up her belongings, while holding the shotgun and menacing
     Keys. Defendant became irate and threatened to put Keys in the trunk of his car if
     she did not comply with his commands. The officers arrived on the scene while
     Keys was packing. The officers recovered a loaded sawed-off shotgun with three
     live shells.

¶7       After defendant was transported to the police station for processing, the officers
     learned that the shotgun had been reported stolen from Des Moines, Iowa.
     Defendant waived his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966))
     and, when asked where he got the shotgun, stated that he bought it on the street.
     When asked about the modification to the shotgun, defendant replied that he
     “wanted to put an elephant handle to it.” The arrest report reflected that defendant
     was charged with unlawful use of a weapon (720 ILCS 5/24-1(a)(7)(ii) (West
     2014)), possession of a firearm without a valid Firearm Owner’s Identification Card
     (430 ILCS 65/2(a)(1) (West 2014)), aggravated assault with a deadly weapon (720
     ILCS 5/12(2)(c)(1) (West 2014)), and theft of lost/mislaid property (id. § 16-2).

¶8       The grand jury returned an indictment against defendant for unlawful use of a
     weapon for knowingly possessing or carrying a shotgun having one or more barrels
     less than 18 inches in length. Defendant proceeded to trial on that count, electing
     to waive his right to jury trial.

¶9       At trial, Officer Glinski testified for the State that he was on duty with his
     partner on February 15, 2014, when they received a dispatch concerning a man with
     a gun at 8952 S. Burley Avenue, a three-flat building. Glinski knocked on the
     exterior door of the building, then entered the door and went up to the third floor.
     When Glinski got to the top of the staircase landing on the third floor, he saw
     defendant, approximately five feet away in the threshold of the doorway, holding a
     shotgun. Defendant looked at Glinski, then threw the shotgun on the ground and
     slammed the door on Glinski. Glinski then knocked in the door and was able to
     detain defendant. There were two or three children and a woman in the room, as
     well as defendant. Glinski saw the shotgun that defendant had been holding on the




                                             -3-
       floor. Glinski testified that he never saw anyone other than defendant touch the
       shotgun.

¶ 10      On cross-examination, Glinski testified that, at some point, there was at least
       one other man on the scene, but Glinski did not know where the man came from.
       Glinski said there were 8 to 10 officers on the scene.

¶ 11       Officer John Schaffer also testified for the State that, on February 15, 2014, he
       responded to a call of a person with a shotgun in front of 8952 S. Burley Avenue.
       When Schaffer arrived on the scene, he went to the third floor. There were already
       other Chicago police officers on the scene when Schaffer arrived. When Schaffer
       entered the apartment, he recovered the shotgun from the floor and unloaded it. The
       shotgun was a Remington 12-gauge with three live cartridges. Schaffer measured
       the barrel of the shotgun and determined that it was 17½ inches. The end of the
       barrel of the shotgun had been manipulated. It was uneven and gritty to the touch,
       as if it had been sawed off or somehow manipulated from its original state.

¶ 12       Shavonnetay Carpenter testified for defendant that she was a friend of
       defendant’s and was with him around 10:10 p.m. on February 15, 2014. Carpenter
       testified that a woman named Sierra was also present, as well as a woman named
       Evelyn, a man named Ray, and someone else that Carpenter could not recall.
       Defendant’s children were also there. Around 10:15 p.m., three Chicago police
       officers “bum rushed” the door of the apartment. The officers had guns in their
       hands aimed at defendant. Carpenter denied that defendant had stepped outside the
       front door to the apartment before the police rushed in. Carpenter also denied that
       defendant had a gun in his hands. Carpenter testified that there was no gun in the
       hallway or in the front room.

¶ 13       Defendant testified in his own defense that on February 15, 2014, he was at
       8952 S. Burley Avenue with Sierra Keys, Shavonnetay Carpenter, defendant’s
       roommate Raymond, and defendant’s two children. Sierra’s sister and her
       boyfriend were also back and forth. Defendant stated that, right before the police
       came through the front door, he was in the front room with Raymond, Cervante,
       and Evelyn. The front door was closed but was unlocked. When defendant heard
       commotion on his front steps, he went to the door to lock it but saw the doorknob
       turning and the door opening. Defendant closed the door, but the door was forced




                                               -4-
       back by a hand sticking out with a gun. Defendant backed off, and an officer
       entered, followed by two more officers.

¶ 14       Defendant denied that he stepped out onto the landing with a gun in his hand
       prior to the door opening. Defendant denied that he threw a gun in his doorway
       upon seeing a Chicago police officer. Defendant denied that he remained standing
       in the front hall of his apartment, with a gun at his feet, as the officers came through
       the front door. Defendant denied that he ever had a gun that night or that he ever
       saw the gun that the officers recovered. Defendant did not see an officer walk out
       of the apartment with a gun and testified that he was “long gone” before the officers
       said anything to him about a gun.

¶ 15      Defendant testified that, when the officer entered his apartment, the officer
       immediately grabbed him and detained him. After two or three minutes, the officers
       took defendant out to the transport car.

¶ 16       In closing, defense counsel argued that the State did not prove its case beyond
       a reasonable doubt. Defense counsel pointed out that there were at least two other
       black men in the apartment, as well as three women and two children, when the
       police entered. Defense counsel noted that defendant was immediately put into
       custody, arguing that this gave the person who actually had the gun sufficient time
       to drop the gun and step back. Defense counsel argued that it was more reasonable
       to think that the police received the call, slammed through the door, and, in the
       confusion, grabbed the first adult male they saw. The officers put that person into
       the police car and then recovered the gun.

¶ 17      The trial court found defendant guilty. As noted, defendant was sentenced to
       two years in prison and one year of MSR. Defendant was discharged from MSR on
       February 10, 2016.

¶ 18       On December 12, 2016, defendant filed his opening brief in the appellate court,
       arguing, inter alia, that trial counsel was ineffective for failing to file a motion to
       suppress the shotgun. Defendant argued that a motion to suppress would have been
       granted because the police had clearly violated his rights under the fourth
       amendment when they entered his property “ ‘without a warrant, probable cause,
       or exigent circumstances’ ” and recovered the shotgun. 2018 IL App (1st) 150748-
       U, ¶ 22. The State responded that the motion would have been denied where the




                                                -5-
       officers’ warrantless entry into defendant’s apartment was lawful, because there
       was probable cause to arrest him and because exigent circumstances existed. Id.
       Therefore, the failure to file a motion to quash would not support a claim of
       ineffective assistance of counsel. Id.

¶ 19       On February 1, 2018, the appellate court issued its opinion affirming
       defendant’s conviction. In addressing defendant’s ineffective assistance of counsel
       claim, the appellate court acknowledged that the court in People v. Veach, 2017 IL
       120649, cautioned against adopting an approach to ineffective assistance of counsel
       claims that presumed such claims are always better suited to collateral proceedings.
       Upon reviewing the record, however, the appellate court found that the record was
       devoid of evidence that would allow it to determine whether a motion to quash
       arrest would have been granted, or whether the police acted lawfully under the
       circumstances. The appellate court therefore declined to address defendant’s
       ineffective assistance of counsel claim, pointing out that its decision did not
       foreclose collateral relief under the Act (725 ILCS 5/122-1 et seq. (West 2014)).

¶ 20       On February 20, 2018, defendant filed a petition for rehearing, arguing that the
       appellate court erred in finding that the record was insufficient to analyze his claim
       of ineffective assistance of counsel. Defendant also argued that relief under the Act
       was unavailable to him because he had been released from MSR in February 2016.

¶ 21       On March 22, 2018, the appellate court issued a modified order upon denial of
       rehearing. 2018 IL App (1st) 150748-U. The appellate court first found that
       defendant’s claim that the record was sufficient to analyze his claim of ineffective
       assistance of counsel was impermissible reargument under Illinois Supreme Court
       Rule 367(b) (eff. Nov. 1, 2017). 2018 IL App (1st) 150748-U, ¶ 28. The appellate
       court also found that defendant’s claim concerning the Act violated Rule 367(b)
       because that issue was never raised in defendant’s opening brief or in his reply
       brief. Id. The appellate court’s modified opinion again affirmed defendant’s
       conviction but removed the sentence stating that its decision did not foreclose
       collateral relief under the Act. Id.




                                               -6-
¶ 22                                       ANALYSIS

¶ 23       Defendant raises two issues on appeal. First, defendant argues that the record is
       sufficient to establish that trial counsel was ineffective for failing to file a motion
       to suppress on the ground that the officers lacked probable cause or exigent
       circumstances to forcibly enter defendant’s home without a warrant. Second,
       defendant argues, assuming arguendo that the record is insufficient to decide the
       suppression issue on appeal, that this court should provide him with another
       opportunity to develop his ineffective assistance of counsel claim. Defendant asks
       this court to either instruct the appellate court to retain jurisdiction and remand to
       the trial court for an evidentiary hearing or exercise its supervisory authority and
       allow defendant to file a petition for postconviction relief.

¶ 24       We first consider defendant’s claim that the record was sufficient to address his
       ineffective assistance of counsel claim. The parties agree that this issue presents a
       question of law, which this court reviews de novo. People v. Bew, 228 Ill. 2d 122,
       127 (2008).

¶ 25       Defendant argues that the facts were fully developed at trial and that those facts
       did not provide Officer Glinski with probable cause to believe that defendant had
       committed a crime. Defendant contends that, in light of People v. Aguilar, 2013 IL
       112116, the mere observation of a gun, without more, is insufficient to provide the
       police with probable cause for an arrest. Therefore, defendant had a lawful right to
       possess a shotgun, to drop that shotgun to the floor of his apartment, and to shut his
       door upon seeing Officer Glinski—an unwanted guest. Defendant also contends
       that, regardless of whether Officer Glinski had probable cause to arrest defendant,
       the police lacked exigent circumstances to force entry into defendant’s home, as the
       mere existence of a gun, without more, is not sufficient to create exigent
       circumstances. Defendant argues that, although his shotgun may have been a half-
       inch shorter than the law allowed, there is no reason to believe that Officer Glinski
       could have made that distinction from five feet away in the seconds before
       defendant shut his door.

¶ 26       Based upon these facts, defendant argues that the shotgun was seized in
       violation of the fourth amendment and would have been suppressed had trial
       counsel filed the appropriate motion. Without the shotgun and the testimony about
       the shotgun, the State would have been unable to prove defendant guilty of



                                                -7-
       knowingly possessing a short-barrel shotgun in violation of section 24-1(a)(7)(ii)
       of the Criminal Code. Defendant claims that trial counsel’s failure to file a
       meritorious motion to suppress the shotgun could not have been an objectively
       reasonable trial strategy. Consequently, defendant asks this court to find that the
       record was sufficiently developed to decide defendant’s claim of ineffective
       assistance of counsel on appeal, find that trial counsel was ineffective for failing to
       file a meritorious motion to suppress the discovery of the shotgun, and reverse
       defendant’s conviction.

¶ 27       Criminal defendants have a constitutional right to the effective assistance of
       counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. It is well settled
       that a claim of ineffective assistance of counsel is evaluated under the two-prong
       test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
       Henderson, 2013 IL 114040, ¶ 11. Under the Strickland test, a defendant must
       establish both that counsel’s performance fell below an objective standard of
       reasonableness and that a reasonable probability exists that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different. Id.
       The failure to establish either prong of the Strickland test precludes a finding of
       ineffective assistance of counsel. Id.

¶ 28       With regard to the filing of a motion to suppress, the decision whether to file
       such a motion is generally “a matter of trial strategy, which is entitled to great
       deference.” People v. White, 221 Ill. 2d 1, 21 (2006), abrogated on other grounds
       by People v. Luedemann, 222 Ill. 2d 530 (2006). In order to establish ineffective
       assistance based on counsel’s failure to file a suppression motion, the defendant
       must demonstrate both that the unargued suppression motion was meritorious and
       that a reasonable probability exists that the trial outcome would have been different
       had the evidence been suppressed. Henderson, 2013 IL 114040, ¶ 15.

¶ 29       As noted, the appellate court found that the record was insufficient to determine
       whether defendant was lawfully arrested, whether trial counsel’s decision
       concerning the filing of a motion to suppress was strategic, or whether such a
       motion would have succeeded. 2018 IL App (1st) 150748-U, ¶ 29. Upon review,
       we agree with the appellate court. The record in this case does not contain sufficient
       information concerning the circumstances of defendant’s arrest from which we
       could determine whether a motion to suppress would have been meritorious or




                                                -8-
       whether defendant was prejudiced by trial counsel’s failure to file a motion to
       suppress.

¶ 30       Defendant claims that the facts were fully developed at trial. While this may be
       true concerning the specific charge against defendant, this is not true with regard to
       the circumstances leading up to and surrounding defendant’s arrest.

¶ 31       This case proceeded to trial on the charge of knowingly possessing a shotgun
       with a barrel that was less than 18 inches in length. See 720 ILCS 5/24-1(a)(7)(ii)
       (West 2014). Consequently, the State’s focus at trial was proving that defendant
       knowingly possessed the shotgun and that the barrel of the shotgun was less than
       18 inches. To that end, Officer Glinski testified that he saw defendant holding the
       shotgun and saw defendant throw the shotgun on the ground, before slamming the
       door to his apartment shut. Glinski then knocked in the door, detained defendant,
       and observed the shotgun defendant had been holding on the floor. Glinski testified
       that he never saw anyone but defendant touch the shotgun. Officer Schaffer testified
       that he recovered the shotgun and determined that the barrel of the shotgun was
       17½ inches. Officer Schaffer also testified that the end of the shotgun barrel had
       been manipulated.

¶ 32       The preceding testimony was necessary for the State to prove the charge against
       defendant. The State had no reason to establish the factual basis that gave the
       officers probable cause to arrest defendant in the first place, as that information was
       not necessary to prove that defendant knowingly possessed a shotgun with a barrel
       that was less than 18 inches in length.

¶ 33       Defendant, however, would have this court find that the lack of testimony
       concerning probable cause and exigent circumstances compels a conclusion that
       there was no such probable cause or exigent circumstances. The lack of evidence
       currently in the record, however, does not establish as fact that there was no
       evidence to support a probable cause or exigent circumstances determination. The
       State did not need to establish justification for defendant’s arrest at trial because the
       events leading to defendant’s arrest were not at issue. Consequently, it does not
       follow that the lack of evidence in the record supporting probable cause or exigent
       circumstances proves that the arrest was unjustified. Again, given the charged
       offense, the State was required to prove at trial only that defendant knowingly




                                                 -9-
       possessed a shotgun and that the barrel of the shotgun was less than 18 inches in
       length.

¶ 34       There are enough questions raised in the record concerning the events leading
       to defendant’s arrest that make it impossible to speculate whether a motion to
       suppress would have been meritorious or whether trial counsel’s failure to file a
       motion to suppress was a matter of trial strategy. Although defendant minimizes
       the events leading to his arrest, the arrest report contains information surrounding
       defendant’s arrest that was not introduced at defendant’s trial. The arrest record
       stated that officers were dispatched to defendant’s building based upon a report of
       a man with a gun. Defendant’s girlfriend, Sierra Keys, told the officers that
       defendant had retrieved his shotgun after they had a verbal altercation and ordered
       Keys to pack up her belongings, while holding the shotgun and menacing Keys.
       Defendant became irate and threatened to put Keys in the trunk of his car if she did
       not comply with his commands. The officers arrived while Keys was packing. Eight
       to ten officers were dispatched to the scene.

¶ 35       Defendant claims that the officers did not know about the incident with Keys
       prior to his arrest because the arrest report stated that Keys related that information
       after the officers knocked in his door and arrested him. Because the officers were
       not questioned about the events leading up to defendant’s arrest, however, we can
       only speculate concerning what the officers knew when they were dispatched to the
       scene. The current record does not conclusively establish one way or another
       whether the officers were aware of the threats to Keys when they responded to a
       report of a man with a gun. The fact that 8 to 10 officers were dispatched to the
       scene raises a question of whether the officers were aware of the threat, but we
       cannot make that determination based upon the current record. Certainly
       information that Keys was being threatened by defendant with a shotgun might
       establish probable cause or exigent circumstances to justify defendant’s arrest, but
       again, we cannot speculate about the existence of probable cause or exigent
       circumstances at this stage because there is too much information to which this
       court and the appellate court are not privy.

¶ 36       Based upon the record in this case, then, we cannot say whether a suppression
       motion would have been meritorious. Consequently, we cannot determine whether
       defense counsel’s decision not to file a motion to suppress was ineffective




                                               - 10 -
       assistance of counsel. We therefore affirm the appellate court’s finding that the
       record in this case is devoid of information necessary to fully address and resolve
       defendant’s claim of ineffective assistance of counsel.

¶ 37       Defendant next argues that he is entitled to a decision on the merits of his claim,
       asking this court to either order the appellate court to retain jurisdiction and remand
       the matter for an evidentiary hearing in the trial court or to allow defendant to raise
       his claim in a petition for postconviction relief, even though he is no longer serving
       his sentence.

¶ 38       Defendant argues that, under the procedural rules in Illinois, a defendant is
       prohibited from raising claims of ineffective assistance of counsel in petitions for
       postconviction relief if those claims are capable of being raised on direct appeal.
       However, because reasonable minds can differ concerning whether the record is
       sufficiently developed to decide a defendant’s claim on appeal, a prudent defendant
       must raise an apparent claim of ineffective assistance of counsel on direct appeal
       and then file a petition for postconviction relief if the appellate court on direct
       appeal finds the record is inadequate to decide the claim. Defendant claims there is
       a hole in this procedure when a defendant receives a short sentence, as defendant
       did in this case. With regard to defendants receiving short sentences, the sentences
       terminate before the appellate court makes a determination as to whether the record
       is sufficient to decide an ineffective assistance of counsel claim on direct appeal.
       Those defendants are then barred from bringing that claim in a petition for
       postconviction relief because they are no longer serving a sentence, resulting in a
       complete denial of the defendants’ right to a decision on the merits of their claims.

¶ 39       The Act provides a procedural mechanism in which a convicted criminal can
       assert that there was a substantial denial of his or her rights under the Constitution
       of the United States or the State of Illinois or both, in the proceedings that resulted
       in his or her conviction. 725 ILCS 5/122-1(a) (West 2014). Postconviction
       proceedings are not an appeal of the original case but instead are a collateral attack
       upon the prior conviction. People v. Harris, 224 Ill. 2d 115, 124 (2007).
       Postconviction proceedings afford only limited review of constitutional claims not
       presented at trial. Id. The scope of the postconviction proceeding is limited to
       constitutional matters that have not been, nor could have been, previously




                                               - 11 -
       adjudicated. Id. Thus, any issues that could have been, but were not, raised on direct
       appeal are procedurally defaulted. Id. at 124-25.

¶ 40       The Act does not provide for postconviction relief once a defendant is no longer
       “imprisoned in the penitentiary.” “Imprisoned in the penitentiary” has been held to
       include those who have been released from incarceration after timely filing their
       petitions, those who were on MSR at the time they filed their petitions, those
       serving any one of consecutive sentences, and those sentenced to probation or
       released on parole. People v. Carrera, 239 Ill. 2d 241, 246 (2010).

¶ 41       Defendant’s position is that he could not file a postconviction claim of
       ineffective assistance of counsel until the appellate court determined on direct
       appeal that the record was insufficient to decide the claim. As the court recognized
       in Harris, 224 Ill. 2d at 131, however, there is nothing in the Act or in this court’s
       jurisprudence that would prohibit a postconviction proceeding and a direct appeal
       from proceeding at the same time. In fact, with regard to the version of the Act at
       issue in Harris, the court had found that “ ‘the legislature removed any doubt that
       postconviction petitions must sometimes be filed before termination of proceedings
       on direct appeal.’ ” Id. at 126-27 (quoting People v. Rissley, 206 Ill. 2d 403, 415
       (2003)).

¶ 42       Contrary to defendant’s argument, then, there is not a “hole” in the procedure,
       nor does the statute create a class of defendants who never get a decision on the
       merits of their constitutional claims of ineffective assistance of counsel because
       they have served their sentences before their direct appeals have been decided. It is
       clear from our case law that defendant could have filed his postconviction petition
       before he had fully served his sentence, even if his direct appeal was pending, in
       order to preserve his postconviction rights.

¶ 43       In Carrera, the court held that a defendant was not entitled to postconviction
       relief, even though he had no other legal remedy, because he was no longer
       imprisoned for purposes of the Act. Carrera, 239 Ill. 2d at 258. Postconviction
       proceedings are matters of legislative grace, and states “ ‘have no obligation to
       provide this avenue of relief.’ ” Harris, 224 Ill. 2d at 135 (quoting Pennsylvania v.
       Finley, 481 U.S. 551, 556-57 (1987)). As Carrera recognized, this court cannot
       expand the remedy set forth in the Act in order to bring a defendant’s case within
       the reach of the Act if he has fully served his sentence. Carrera, 239 Ill. 2d at 259.



                                               - 12 -
       Our legislature has enacted a statute under which some defendants with short
       sentences may have to file their postconviction petitions while their direct appeals
       are pending, in order to preserve their postconviction rights. It is the legislature’s
       choice to enact such a statute, and this court must enforce the statute as written.

¶ 44       Defendant nonetheless asks this court to exercise its supervisory authority and
       allow defendants who have completed their sentences while their direct appeals are
       pending to file petitions for postconviction relief within six months of the date the
       appellate court judgment becomes final. Defendant cites People v. Warr, 54 Ill. 2d
       487, 491 (1973), in support of that suggestion, noting that the court in Warr
       exercised its supervisory authority to hold that a defendant convicted of a
       misdemeanor, who claimed there was a substantial denial of his constitutional
       rights in the proceedings that resulted in his conviction, could institute a proceeding
       in the nature of a proceeding under the Act.

¶ 45       The same suggestion was rejected by the court in Carrera, and we see no reason
       to now reconsider that decision. The Warr court elected to exercise its supervisory
       authority because misdemeanor defendants had no remedy otherwise. Carrera
       distinguished Warr, noting that the defendant in the case before it had a remedy to
       challenge his conviction, as long as the challenge was made while the defendant
       was serving the sentence imposed on that conviction. Carrera, 239 Ill. 2d at 259.
       Here too, defendants serving short sentences are not denied a remedy to challenge
       their convictions: they can file their postconviction petitions while their direct
       appeals are pending and while still serving the sentences imposed on their
       convictions.

¶ 46       Defendant alternatively asks this court to “close the hole” in the Act by
       instructing the appellate court to retain jurisdiction under Rule 615(b)(2) and to
       remand the matter for an evidentiary hearing whenever the appellate record
       establishes a substantial showing of a constitutional violation, if the defendant lacks
       standing to file a postconviction petition. In support of this request, defendant cites
       People v. Fellers, 2016 IL App (4th) 140486.

¶ 47        In Fellers, the court found that the record before it was not sufficient to make a
       determination on direct appeal concerning whether trial counsel was ineffective in
       failing to file a motion to suppress. Id. ¶ 34. Because defendant had completed his
       sentence in the case and thus could not file a petition for postconviction relief, the



                                               - 13 -
       Fellers court found it “appropriate, pursuant to Illinois Supreme Court Rule
       366(a)(5) (eff. Feb. 1, 1994), to retain jurisdiction and remand the cause to the trial
       court for a hearing on defendant’s claim of ineffective assistance of counsel.” Id.
       ¶ 36.

¶ 48       We decline defendant’s invitation to instruct the appellate court to retain
       jurisdiction and remand for a sentencing hearing when a defendant lacks standing
       to file a postconviction petition. We again reiterate that there is no “hole” to close
       in the Act. Defendant has a remedy. Defendant can file a postconviction petition
       while his direct appeal is pending. If a defendant’s direct appeal is pending and he
       is nearing the completion of his short sentence, he can preserve his constitutional
       rights by filing his postconviction petition before his sentence is served. As the
       court recognized in Carrera, a defendant has a remedy to challenge his conviction
       as long as the challenge is made while the defendant is serving the sentence
       imposed on that conviction. Carrera, 239 Ill. 2d at 259. The fact that defendant is
       now unable to seek relief using the proper vehicle for his claim—filing a
       postconviction petition under the Act—does not warrant a different result when
       defendant could have sought collateral relief before his sentence was served. This
       court need not, and indeed cannot, create additional remedies apart from those set
       forth in the Act for those defendants who fail to avail themselves of the remedies
       set forth in the Act. See id. To the extent the court in Fellers held to the contrary,
       we hereby overrule that decision.

¶ 49                                      CONCLUSION

¶ 50       For the reasons set forth above, we find that the appellate court properly
       concluded that the record in this case was insufficient to decide defendant’s claim
       of ineffective assistance of counsel on direct appeal. We also reject defendant’s
       request to allow defendant to file a petition for postconviction relief or to order the
       appellate court to retain jurisdiction and remand the case for an evidentiary hearing
       in the trial court. We therefore affirm the appellate court’s decision affirming
       defendant’s conviction.


¶ 51      Affirmed.




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¶ 52      CHIEF JUSTICE BURKE, concurring in part and dissenting in part:

¶ 53       I agree with the majority that the evidence of record is insufficient to permit us
       to rule on the merits of defendant’s claim of ineffective assistance of trial counsel.
       Where a defendant’s claim of ineffectiveness is based on counsel’s failure to file a
       suppression motion, the record is frequently incomplete or inadequate to evaluate
       that claim. See People v. Bew, 228 Ill. 2d 122, 134 (2008) (citing Massaro v. United
       States, 538 U.S. 500, 504-05 (2003)). That is the case here. There are simply too
       many unanswered factual questions regarding the circumstances leading to
       defendant’s arrest to determine whether trial counsel’s failure to file a motion to
       suppress was a strategic decision or whether the motion, if filed, would have been
       successful.

¶ 54        I also agree with the majority that this court “cannot expand the remedy set forth
       in the [Post-Conviction Hearing] Act in order to bring a defendant’s case within the
       reach of the Act.” Supra ¶ 43 (citing People v. Carrera, 239 Ill. 2d 241, 259
       (2010)). The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014))
       is a legislative creation. As a court of law, we do not have the authority to alter the
       statutory criteria for obtaining relief under the Act and permit defendant to file a
       postconviction petition when his sentence has already been completed.

¶ 55       I disagree, however, with the majority’s refusal to order the appellate court to
       remand the cause to the circuit court for an evidentiary hearing on defendant’s claim
       of ineffective assistance of trial counsel. In so doing, the majority denies defendant
       any opportunity to have an important constitutional claim reviewed. This is
       fundamentally unfair, and there is no legal basis for the court to deny such relief. I
       therefore respectfully dissent.

¶ 56       As the majority acknowledges, a defendant will typically raise an apparent
       claim of ineffective assistance of trial counsel on direct appeal and “then file a
       petition for postconviction relief if the appellate court on direct appeal finds the
       record is inadequate to decide the claim.” Supra ¶ 38. This is what defendant
       attempted to do in the present case. Defendant raised an ineffectiveness claim on
       direct appeal, and the appellate court found the record inadequate to decide the
       claim. However, defendant could not file a postconviction petition because he had
       fully served his sentence and the Post-Conviction Hearing Act does not provide
       postconviction relief for a defendant who has completed his sentence. Defendant



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       advised the appellate court of this situation and asked the appellate court to retain
       jurisdiction while remanding to the circuit court for an evidentiary hearing. The
       appellate court refused to even consider this avenue for granting defendant relief.
       Thus, defendant is precluded from ever raising his claim of ineffective assistance
       of trial counsel.

¶ 57       The majority contends that defendant is not being denied a remedy. According
       to the majority, “[o]ur legislature has enacted a statute under which some
       defendants with short sentences may have to file their postconviction petitions
       while their direct appeals are pending, in order to preserve their postconviction
       rights.” Supra ¶ 43. However, the majority misapprehends what defendant is
       requesting. Whatever defendant would be required to do to preserve his
       postconviction rights is not relevant on this issue. The defendant is asking that the
       appellate court provide him relief in his direct appeal by remanding the cause to
       the circuit court for an evidentiary hearing. Thus, the question before us at this
       juncture is whether the appellate court has the authority to grant defendant relief on
       direct appeal. The answer, of course, is yes. Pursuant to Illinois Supreme Court
       Rule 366 (Ill. S. Ct. R. 366 (eff. Feb. 1, 1994), the appellate court has the inherent
       authority as a court of review to grant any relief that it deems necessary to do
       justice.

¶ 58        The majority does not cite any law, and I am unaware of any law, that would
       preclude the appellate court from granting defendant’s request on direct appeal.
       Nevertheless, the majority holds that the defendant’s failure to file a postconviction
       petition, before the appellate court finds that the record is inadequate to address
       defendant’s ineffectiveness claim, strips the appellate court of any power to grant
       relief on direct appeal. This conclusion is absurd, finds no support in the law, and
       is fundamentally unfair.

¶ 59       The majority’s unwarranted limitation on the appellate court’s authority to craft
       an appropriate remedy in cases where, as here, the defendant has no recourse to
       obtaining postconviction relief is particularly problematic in this case because the
       facts that are contained in the record show that defendant’s claim of ineffective
       assistance of counsel for failure to file a motion to quash and suppress has a
       reasonable probability of success.




                                               - 16 -
¶ 60        A defendant is constitutionally entitled to the effective assistance of counsel.
       Strickland v. Washington, 466 U.S. 668 (1984). Denial of this right is grounds for
       reversal of a defendant’s conviction. Where, as here, defendant has made a
       substantial showing that his fourth amendment rights were violated and, therefore,
       trial counsel was ineffective for failing to file a motion to quash arrest and suppress
       evidence, there must be some meaningful opportunity for review of that claim.

¶ 61       The answer is to grant defendant’s request to send the matter back to the
       appellate court with directions that it retain jurisdiction and remand to the circuit
       court for an evidentiary hearing to develop the record regarding the facts
       surrounding defendant’s arrest. This remedy does justice without doing damage to
       our laws or our jurisprudence. The appellate court has often found it necessary to
       remand a matter to the circuit court for further hearing when it determines that the
       record is insufficient to permit review of an issue on appeal. I can find no reason
       why the appellate court should not take such action here.

¶ 62      For the reasons stated above, I partially concur and partially dissent from the
       majority’s judgment in this case.




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