                       Illinois Official Reports

                              Appellate Court



                  People v. Crenshaw, 2015 IL App (4th) 131035



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MICHAEL E. CRENSHAW, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-13-1035



Filed             September 9, 2015



Decision Under    Appeal from the Circuit Court of Brown County, No. 09-CF-5; the
Review            Hon. Diane M. Lagoski, Judge, presiding.



Judgment          Affirmed.




Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, all of
Appeal            State Appellate Defender’s Office, of Elgin, for appellant.

                  Mark J. Vincent, State’s Attorney, of Mt. Sterling (Patrick Delfino,
                  David J. Robinson, and Luke McNeill, all of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE TURNER delivered the judgment of the court, with opinion.
                  Presiding Justice Pope and Justice Steigmann concurred in the
                  judgment and opinion.
                                              OPINION


¶1        In October 2009, the trial court found defendant, Michael E. Crenshaw, guilty of criminal
     sexual assault. In November 2009, the court sentenced him to eight years in prison. This court
     affirmed defendant’s conviction and sentence on direct appeal. In March 2010, defendant filed
     a pro se petition for postconviction relief, which the trial court denied. This court affirmed the
     trial court’s judgment. In December 2012, defendant filed a pro se petition for leave to file a
     successive postconviction petition. In November 2013, the trial court denied defendant leave
     to file the successive postconviction petition.
¶2        On appeal, defendant argues the trial court erred in denying his petition to file a successive
     postconviction petition. We affirm.

¶3                                         I. BACKGROUND
¶4       Because the parties are familiar with the facts of the underlying case, we will set forth only
     those facts necessary to address the issues in this appeal. In February 2009, the State charged
     defendant by information with one count of criminal sexual assault (720 ILCS 5/12-13(a)(3)
     (West 2008)), alleging he committed an act of sexual penetration with H.H. who was then 15
     years old and a family member.
¶5       In October 2009, defendant’s bench trial commenced before Judge Diane Lagoski. Prior to
     the start of trial, during arguments on a motion in limine concerning the use of witness
     testimony pertaining to statements made by the victim, Judge Lagoski indicated she had
     looked at the list of witnesses and stated as follows:
             “I want to make sure everybody is aware of this–there is a witness subpoenaed who I
             suspect falls right into this category. Looks like it probably would have been a school
             friend. And I need to tell you that she and her family are friends of mine. She has been
             in and out of my house since she was born. I’ve probably given her a Christmas present
             every year. And I didn’t know that until I looked at the subpoenas that are out there. It’s
             [C.H.] I don’t know that it matters, but I needed to make sure everybody knew that. So
             she may not testify. I don’t know that she will testify. But I just suspect that she would
             be one of the people who’s going to do exactly what [the prosecutor] just suggested.”
     At trial, C.H. testified she had known H.H. since the second grade. On the date of the alleged
     sexual assault, H.H. pulled C.H. into a high school bathroom. Over defense counsel’s
     objection, C.H. stated H.H. told her that she had been sexually assaulted.
¶6       Following the close of evidence and closing arguments, the trial court found defendant
     guilty. In November 2009, defendant filed a motion for a new trial, which the court denied.
     Thereafter, the court sentenced defendant to eight years in prison.
¶7       On direct appeal, defendant argued the trial court erred in (1) denying his motion to
     suppress his confession, (2) admitting H.H.’s cell phone recording of the alleged sexual
     assault, and (3) imposing an excessive sentence. People v. Crenshaw, 2011 IL App (4th)
     090908, ¶ 13, 959 N.E.2d 703 (Crenshaw I). This court affirmed his conviction and sentence.
     Crenshaw I, 2011 IL App (4th) 090908, ¶ 26, 959 N.E.2d 703.


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¶8          While his direct appeal was pending, in March 2010, defendant filed a pro se petition under
       the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2008)). Defendant
       alleged he was denied due process when Judge Lagoski failed to recuse herself from his
       criminal trial when she was presiding over the divorce case between defendant and his wife at
       the same time. Defendant also claimed Judge Lagoski had a conflict of interest where one of
       the prosecution witnesses was the granddaughter of the judge’s secretary (later stated to be the
       judge’s housekeeper). Defendant argued his rights were violated by hearsay testimony being
       admitted from witnesses over his objection. Defendant also included several allegations of
       ineffective assistance of trial counsel and stated there was newly discovered evidence.
¶9          The trial court appointed counsel to represent defendant on his petition. In October 2010,
       counsel filed an amended postconviction petition. The petition raised issues involving judicial
       error, ineffective assistance of counsel, and newly discovered evidence. Defendant claimed the
       trial judge should have recused herself because one of the State’s witnesses was a family friend
       for whom the judge had purchased gifts, thereby creating an appearance of impropriety,
       “especially in light of the evidence in this case,” where the judge placed more credence on live
       testimony than the lack of any physical evidence. The petition also alleged the judge erred in
       not advising defendant of the maximum penalties for the charged offense and that it was
       nonprobationable. Had defendant known probation was not an option, he “may have changed
       his mind as to whether to accept a plea negotiation or go to trial.”
¶ 10        In November 2010, Judge Lagoski entered a partial dismissal of the amended
       postconviction petition, discharging several claims. However, she found defendant’s
       ineffective-assistance claim regarding counsel’s failure to admonish defendant he would be
       ineligible for probation if found guilty alleged a possible constitutional violation that would
       warrant relief.
¶ 11        In February 2011, the State filed an answer, and the evidentiary hearing followed. After
       hearing evidence and argument, Judge Lagoski acknowledged defendant had been admonished
       as to the potential sentencing range for the Class 1 felony, but she never used the terms
       “nonprobationable” or “probationable.” However, Judge Lagoski found defendant was not
       prejudiced by not knowing he would be ineligible for probation if convicted because he would
       have rejected any plea that required him to admit guilt. Judge Lagoski found defendant had not
       met his burden and denied the amended petition.
¶ 12        On appeal from the denial of the amended petition, appellate counsel argued the trial court
       erred in rejecting his claim that trial counsel rendered ineffective assistance by failing to advise
       him probation was not available for the offense, affecting his willingness to engage in plea
       negotiations. This court affirmed the trial court’s judgment. People v. Crenshaw, 2012 IL App
       (4th) 110202, ¶ 18, 974 N.E.2d 1002 (Crenshaw II).
¶ 13        In December 2012, defendant filed a pro se motion for substitution of judge, a petition for
       leave to file a successive postconviction petition, and the successive postconviction petition. In
       his petition for leave to file, defendant alleged appointed postconviction counsel was
       ineffective for not making the necessary amendments to his postconviction petition, including
       adding a claim of ineffective assistance of appellate counsel.
¶ 14        In January 2013, Judge Robert Adrian conducted a hearing on the motion for substitution
       of judge. In denying the motion, Judge Adrian found defendant had “not presented sufficient
       evidence to show that Judge Lagoski could not hear the case or any further proceedings therein
       because of bias or prejudice.”

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¶ 15       In June 2013, the State filed a motion to dismiss the successive postconviction petition,
       stating defendant did not obtain leave of court prior to filing the successive petition. On the
       same day, Judge Lagoski granted the motion to dismiss. Thereafter, defendant filed a motion to
       reconsider. In August 2013, defendant filed a second motion for a hearing, claiming his motion
       to reconsider had not been ruled on. The State responded with a motion to have defendant’s
       pleadings found frivolous and require him to pay costs. In September 2013, defendant filed a
       third motion for a hearing. At a hearing, Judge Lagoski decided to “undismiss” defendant’s
       case, granted the motion to reconsider, and set the matter for a hearing on whether the
       successive postconviction petition could be filed.
¶ 16       Following the hearing, defendant filed a pro se petition for leave of court to file an
       amended successive postconviction petition. Defendant alleged he met the
       cause-and-prejudice test in that postconviction counsel was ineffective under Illinois Supreme
       Court Rule 651(c) (eff. Apr. 26, 2012) in failing to examine the record of the trial proceedings,
       to make any amendments necessary to the postconviction petition, or to amend the initial
       pro se postconviction petition to include a claim of ineffective assistance of appellate counsel.
¶ 17       Along with the petition for leave to file, defendant attached the amended successive
       postconviction petition, consisting of over 100 handwritten pages and nearly 50 pages of
       exhibits. Among a host of issues, defendant claimed postconviction counsel (1) was ineffective
       for failing to comply with Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012) by failing to
       review the record or amend the initial postconviction petition, (2) failed to amend the initial
       postconviction petition to include issues of ineffective assistance of appellate counsel, (3)
       failed to adequately review the record and amend the initial postconviction petition to include
       the claim that trial counsel misled defendant on whether there could be a substitution of judge,
       (4) failed to amend the initial postconviction petition to include a claim of ineffective
       assistance of appellate counsel on the issue of judicial bias or impartiality, and (5) failed to
       amend the petition to include a claim that appellate counsel was ineffective for not raising the
       issue of the insufficiency of the evidence.
¶ 18       In November 2013, the trial court heard arguments on the petition for leave to file the
       amended successive postconviction petition. The State renewed its motion to dismiss. The
       court denied leave to file the successive postconviction petition. This appeal followed.

¶ 19                                          II. ANALYSIS
¶ 20               A. Petition for Leave to File a Successive Postconviction Petition
¶ 21       Defendant argues the denial of his petition seeking leave to file a successive postconviction
       petition must be vacated and the matter remanded because the State filed a motion to dismiss
       and actively argued against his petition. We disagree.

¶ 22                             1. The Initial Postconviction Petition
¶ 23       The Act “provides a mechanism for criminal defendants to challenge their convictions or
       sentences based on a substantial violation of their rights under the federal or state
       constitutions.” People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). A
       proceeding under the Act is a collateral proceeding and not an appeal from the defendant’s
       conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The



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       defendant must show he suffered a substantial deprivation of his federal or state constitutional
       rights. People v. Caballero, 228 Ill. 2d 79, 83, 885 N.E.2d 1044, 1046 (2008).
¶ 24       The Act establishes a three-stage process for adjudicating a postconviction petition.
       English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. At the first stage, the trial court must review
       the postconviction petition and determine whether “the petition is frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). “In considering a petition pursuant to
       [section 122-2.1 of the Act], the [trial] court may examine the court file of the proceeding in
       which the petitioner was convicted, any action taken by an appellate court in such
       proceeding[,] and any transcripts of such proceeding.” 725 ILCS 5/122-2.1(c) (West 2012).
       “The circuit court’s review at this first stage is independent, as the Act does not permit any
       further pleadings from the defendant, or any motions, responsive pleadings, or other input
       from the State.” People v. Jones, 211 Ill. 2d 140, 144, 809 N.E.2d 1233, 1236 (2004) (citing
       People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996)). However, the supreme
       court has held a reversal of a first-stage dismissal is not required when the State files a
       premature motion to dismiss, “[w]here the record gives no indication that the trial judge sought
       input from the State or relied on the motion to dismiss.” Gaultney, 174 Ill. 2d at 420, 675
       N.E.2d at 107.
¶ 25       If the petition is not dismissed at the first stage, it advances to the second stage. 725 ILCS
       5/122-2.1(b) (West 2012). At the second stage, the trial court may appoint counsel, who may
       amend the petition to ensure defendant’s contentions are adequately presented. People v.
       Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999, 1007 (2006); 725 ILCS 5/122-4 (West 2012).
       Also at the second stage, the State may file an answer or move to dismiss the petition. 725
       ILCS 5/122-5 (West 2012). “No other or further pleadings shall be filed except as the court
       may order on its own motion or on that of either party.” 725 ILCS 5/122-5 (West 2012). A
       petition may be dismissed at the second stage “only when the allegations in the petition,
       liberally construed in light of the trial record, fail to make a substantial showing of a
       constitutional violation.” People v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913, 920 (2005). If a
       constitutional violation is established, “the petition proceeds to the third stage for an
       evidentiary hearing.” People v. Harris, 224 Ill. 2d 115, 126, 862 N.E.2d 960, 967 (2007); 725
       ILCS 5/122-6 (West 2012).

¶ 26                             2. The Successive Postconviction Petition
¶ 27       Consistent with the above principles, the “Act generally contemplates the filing of only one
       postconviction petition.” People v. Ortiz, 235 Ill. 2d 319, 328, 919 N.E.2d 941, 947 (2009).
       The Act expressly provides that “[a]ny claim of substantial denial of constitutional rights not
       raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2012); see
       also People v. Pitsonbarger, 205 Ill. 2d 444, 458, 793 N.E.2d 609, 620-21 (2002) (stating “the
       procedural bar of waiver is not merely a principle of judicial administration; it is an express
       requirement of the statute”). A defendant faces “immense procedural default hurdles when
       bringing a successive post-conviction petition,” which “are lowered in very limited
       circumstances” as successive petitions “plague the finality of criminal litigation.” People v.
       Tenner, 206 Ill. 2d 381, 392, 794 N.E.2d 238, 245 (2002). However, our supreme court has
       found “the statutory bar to a successive postconviction petition will be relaxed when
       fundamental fairness so requires.” People v. Lee, 207 Ill. 2d 1, 5, 796 N.E.2d 1021, 1023
       (2003).

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¶ 28        A successive postconviction petition may only be filed if leave of court is granted. 725
       ILCS 5/122-1(f) (West 2012); see also People v. LaPointe, 227 Ill. 2d 39, 44, 879 N.E.2d 275,
       278 (2007) (stating a second postconviction petition will not be considered filed until leave to
       file is expressly granted by the trial court). “Leave of court may be granted only if a petitioner
       demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction
       proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2012). “[A]
       successive petition ‘is not considered “filed” for purposes of section 122-1(f), and further
       proceedings will not follow, until leave is granted, a determination dependent upon a
       defendant’s satisfaction of the cause-and-prejudice test.’ ” People v. Edwards, 2012 IL App
       (1st) 091651, ¶ 19, 966 N.E.2d 417 (quoting People v. Tidwell, 236 Ill. 2d 150, 161, 923
       N.E.2d 728, 734 (2010)). Both prongs of the cause-and-prejudice test must be satisfied for a
       defendant to prevail. People v. Guerrero, 2012 IL 112020, ¶ 15, 963 N.E.2d 909; see also
       Lee, 207 Ill. 2d at 5, 796 N.E.2d at 1023 (stating to establish fundamental fairness, “the
       defendant must show both cause and prejudice with respect to each claim presented”).
¶ 29        Defendant argues when a pro se petitioner seeks leave to file a successive petition, the
       State should not be allowed to have any input, but it may file a motion to dismiss or a
       responsive pleading only after leave to file the successive petition is granted, the petition has
       moved to stage two, and counsel has been appointed. The appellate prosecutor argues the State
       is permitted to participate in successive postconviction proceedings at the stage where
       defendant is seeking leave to file.
¶ 30        Defendant relies, in part, on People v. Smith, 2014 IL 115946, ¶ 35, 21 N.E.3d 1172,
       wherein our supreme court stated “leave of court to file a successive postconviction petition
       should be denied when it is clear, from a review of the successive petition and the
       documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a
       matter of law or where the successive petition with supporting documentation is insufficient to
       justify further proceedings.” Defendant acknowledges the court has not spoken on the issue of
       whether the State may offer its input when a petitioner seeks leave to file a successive
       postconviction petition.
¶ 31        In People v. Welch, 392 Ill. App. 3d 948, 951, 912 N.E.2d 756, 758 (2009), the defendant,
       through appointed counsel, filed a motion for leave to file a successive postconviction petition.
       The State filed a motion to dismiss, and the trial court conducted a hearing on the motion for
       leave to file. Welch, 392 Ill. App. 3d at 951, 912 N.E.2d at 758. Following arguments, the court
       denied the motion for leave to file. Welch, 392 Ill. App. 3d at 951, 912 N.E.2d at 759.
¶ 32        On appeal, the Third District considered the issue of “whether the trial court improperly
       allowed input by the State when it considered [the defendant’s] motion for leave to file his
       successive petition.” Welch, 392 Ill. App. 3d at 955, 912 N.E.2d at 762. The Third District
       stated, in part, as follows:
                    “In the instant case, the record indicates that both parties participated in arguments
                regarding [the defendant’s] motion for leave to file his successive petition. [The
                defendant’s] counsel expressly stated that he was not seeking a hearing on the merits of
                the petition but was requesting leave based on fundamental fairness principles. The
                State responded that the severance issue raised in the successive petition had been
                determined in prior proceedings. The parties have not offered, and we have not found,
                any authority prohibiting input from the State at this stage of postconviction
                proceedings.” Welch, 392 Ill. App. 3d at 955, 912 N.E.2d at 762.

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       The Third District found no error in the trial court’s determination that the defendant had failed
       to satisfy the cause-and-prejudice test. Welch, 392 Ill. App. 3d at 955, 912 N.E.2d at 762.
¶ 33       We agree with the Third District’s finding that the State is not prohibited from providing its
       input at the motion stage. The State’s participation at this stage is consistent with the general
       principle that only one postconviction petition may be filed by a petitioner without leave of
       court. 725 ILCS 5/122-1(f) (West 2012). Defendant’s attempt to impart first-stage prohibitions
       to the motion stage is unavailing, as our supreme court has made clear that “ ‘treating
       successive petitions the same as initial petitions *** ignores the well-settled rule that
       successive postconviction actions are disfavored by Illinois courts.’ ” Smith, 2014 IL
       115946, ¶ 31, 21 N.E.3d 1172 (quoting People v. Edwards, 2012 IL 111711, ¶ 29, 969 N.E.2d
       829). Moreover, the State has an interest in the finality of criminal litigation. The State’s input
       can offer assistance to the trial court in making its decision whether to grant leave–assistance
       that may prove helpful given the issues raised and the passage of time, the latter evinced in this
       case by the nearly three years that elapsed between the filing of the amended postconviction
       petition and the petition for leave to file a successive petition.
¶ 34       While the supreme court has not spoken on this precise issue and the pertinent sections of
       the Act do not prohibit input from the State at the motion stage, defendant points out the
       General Assembly has considered possible changes to the law. In the ninety-eighth General
       Assembly, the House passed an amended version of section 122-1(f) of the Act, which
       provided, in part, as follows:
                “Only one petition may be filed by a petitioner under this Article without leave of
                court. The determination as to whether to grant leave of court shall be made prior to or
                contemporaneously with any order made under paragraph (2) of subsection (a) or
                subsection (b) of Section 122-2.1 without pleadings from the State. Leave of court may
                8be granted if a petitioner demonstrates:
                        (1) cause for his or her failure to bring the claim in his or her initial
                    post-conviction proceedings and prejudice results from that failure; or
                        (2) that there has been a fundamental miscarriage of justice.” (Emphasis
                    added.) 98th Ill. Gen. Assem., House Bill 2961, 2013 Sess.
       The appellate defender dutifully notes the bill proceeded to the Senate, where it was re-referred
       to committee on amendment number one. On December 4, 2013, the bill ended in the House
       sine die.
¶ 35       Defendant argues the trial court’s actions in allowing the State to participate here were
       contrary to the General Assembly’s proposed intent. However, the legislature’s “proposed
       intent” is not the law, and we will not attempt to predict the future intent of the General
       Assembly from the scraps on the cutting room floor. Until such time as our supreme court or
       the legislature says otherwise, we find nothing prevents the State from providing its input on a
       defendant’s motion for leave to file a successive postconviction petition.

¶ 36                B. Denial of Leave to File a Successive Postconviction Petition
¶ 37       Defendant argues he satisfied the cause-and-prejudice test and thus this court should
       reverse the trial court’s decision to deny him leave to file his successive postconviction
       petition. We disagree.



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¶ 38       As stated, leave of court may be granted only if a petitioner demonstrates cause for his or
       her failure to bring a claim in his or her initial postconviction proceedings and prejudice results
       from that failure. 725 ILCS 5/122-1(f) (West 2012).
               “To show cause, a defendant must identify ‘an objective factor that impeded his or her
               ability to raise a specific claim during his or her initial post-conviction proceedings.’
               [Citation.] To show prejudice, a defendant must demonstrate ‘that the claim not raised
               during his or her initial post-conviction proceedings so infected the trial that the
               resulting conviction or sentence violated due process.’ [Citation.]” People v. Evans,
               2013 IL 113471, ¶ 10, 989 N.E.2d 1096.
       “Where a defendant fails to first satisfy the requirements under section 122-1(f), a reviewing
       court does not reach the merits or consider whether his successive postconviction petition
       states the gist of a constitutional claim.” Welch, 392 Ill. App. 3d at 955, 912 N.E.2d at 762.
       This court reviews de novo the denial of a defendant’s motion for leave to file a successive
       postconviction petition. People v. Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452
       (2010).
¶ 39       In his petition for leave to file an amended postconviction petition, defendant claimed
       appointed postconviction counsel failed to comply with Illinois Supreme Court Rule 651(c)
       (eff. Apr. 26, 2012) by not examining the record of the trial proceedings and not making any
       necessary amendments to the amended postconviction petition. Now on appeal, defendant
       argues counsel failed to include his claim that Judge Lagoski “gained facts from the divorce
       proceedings that influenced her decision in the criminal matter.” Further, defendant argues
       that, had counsel adequately reviewed the trial transcripts and record, he would have amended
       the postconviction petition to include an issue of judicial conflict and bias as well as ineffective
       assistance of appellate counsel for not raising the judicial-impropriety issue on direct appeal.
¶ 40       In the case sub judice, defendant attempts to establish cause simply with the bare allegation
       that postconviction counsel failed to comply with Rule 651(c). A defendant’s right to
       postconviction counsel is statutory and not constitutional. People v. Suarez, 224 Ill. 2d 37, 42,
       862 N.E.2d 977, 979 (2007); 725 ILCS 5/122-4 (West 2012). Moreover, the Act requires
       postconviction counsel to provide a “reasonable level of assistance” to a defendant. People v.
       Moore, 189 Ill. 2d 521, 541, 727 N.E.2d 348, 358-59 (2000). To ensure a postconviction
       petitioner receives that reasonable level of assistance, Rule 651(c) imposes specific duties on
       postconviction counsel. Suarez, 224 Ill. 2d at 42, 862 N.E.2d at 979. The rule requires that
       postconviction counsel consult with the defendant to ascertain his contentions of the
       deprivation of constitutional rights, examine the record of the proceedings at trial, and make
       any amendments to the defendant’s pro se petition that are necessary for an adequate
       presentation of his contentions. Ill. S. Ct. R. 651(c) (eff. Apr. 26, 2012).
¶ 41       Compliance with Rule 651(c) may be shown by the filing of a certificate representing
       counsel has fulfilled his duties. People v. Perkins, 229 Ill. 2d 34, 50, 890 N.E.2d 398, 407
       (2007). “The filing of a Rule 651(c) certificate creates a presumption of compliance with the
       rule.” People v. Bell, 2014 IL App (3d) 120637, ¶ 10, 16 N.E.3d 910 (citing People v.
       Mendoza, 402 Ill. App. 3d 808, 931 N.E.2d 703 (2010)).
¶ 42       Here, postconviction counsel filed a Rule 651(c) certificate specifically stating he satisfied
       the requirements. However, defendant claims counsel never explicitly stated he read the
       transcripts, and had counsel reviewed the transcripts, he would have been aware of Judge


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       Lagoski presiding over the divorce case and included an issue of judicial conflict or bias in the
       amended postconviction petition.
¶ 43       Defendant’s claim has no merit. That counsel may not have raised every single issue set
       forth in defendant’s pro se postconviction petition does not amount to unreasonable assistance.
       Moreover, counsel is not required “to advance frivolous or spurious claims on defendant’s
       behalf.” People v. Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511, 519 (2004). To amend a
       petition in a manner that only furthers a frivolous or patently nonmeritorious claim would
       appear to violate Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). Greer, 212 Ill. 2d at 205,
       817 N.E.2d at 519-20. Defendant has failed to provide any specific examples of bias on the
       part of Judge Lagoski due to her presiding over both proceedings. As defendant failed to rebut
       the presumption that counsel complied with Rule 651(c), he also failed to establish the cause
       prong of the cause-and-prejudice test.
¶ 44       Defendant also cannot meet the prejudice prong of the cause-and-prejudice test. Nothing in
       the record indicates Judge Lagoski relied on any information derived from the divorce case to
       the detriment of defendant at his criminal trial, and defendant fails to identify any instances
       suggesting bias or prejudice on the part of Judge Lagoski. Had counsel raised the issue in the
       amended postconviction petition, it would have been denied. Thus, defendant has failed to
       demonstrate this claim not raised in the initial postconviction proceeding so infected the trial
       that the resulting conviction violated due process.
¶ 45       We hold the trial court correctly denied defendant leave to file his successive
       postconviction petition because he did not meet the requirements of section 122-1(f). 725
       ILCS 5/122-1(f) (West 2012). We therefore do not reach the merits of defendant’s successive
       petition as it was not considered filed. See LaPointe, 227 Ill. 2d at 44, 879 N.E.2d at 278.

¶ 46                                       III. CONCLUSION
¶ 47      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 48      Affirmed.




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