                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Cathey, 2012 IL 111746




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ELRON
Court:                     CATHEY, Appellant.



Docket No.                 111746
Filed                      March 22, 2012


Held                       Where, after a failed self-defense claim as to which defendant testified,
(Note: This syllabus       appellate counsel challenged the use of convictions to impeach but not
constitutes no part of     the lack of a pretrial ruling thereon, a postconviction petition alleging his
the opinion of the court   ineffectiveness arguably raised claims of deficiency and prejudice and
but has been prepared      should not have been summarily dismissed—aggravated battery with a
by the Reporter of         firearm.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. John A.
                           Wasilewski, Judge, presiding.



Judgment                   Appellate court judgment reversed.
                           Circuit court judgment reversed.
                           Cause remanded.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and David C. Holland, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Chicago, for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                         State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
                         Matthew Connors, Assistant State’s Attorneys, of counsel), for the
                         People.


Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
                         and Theis concurred in the judgment and opinion.



                                            OPINION

¶1         The defendant, Elron Cathey, filed a pro se postconviction petition in which he alleged
      he received ineffective assistance of counsel on direct appeal. According to the petition,
      counsel failed to argue that defendant’s trial judge erred when the judge declined to rule on
      defendant’s motion in limine to bar the use of prior convictions for impeachment purposes
      before defendant testified. The circuit court of Cook County summarily dismissed the
      postconviction petition and the appellate court affirmed. 406 Ill. App. 3d 503. For the reasons
      set forth below, we reverse the judgments of the appellate and circuit courts and remand the
      cause to the circuit court for further proceedings.

¶2                                        BACKGROUND
¶3         Defendant was charged with attempted first degree murder and aggravated battery with
      a firearm in connection with the shooting of Maurice Sterling. Prior to trial, defense counsel
      filed a motion in limine which sought to prevent the State from using defendant’s prior
      convictions for attempted murder and aggravated battery with a firearm for impeachment
      purposes. Counsel argued that any probative value of the prior convictions would be
      outweighed by their prejudicial effect under the balancing test set forth in People v.
      Montgomery, 47 Ill. 2d 510 (1971), because those convictions were identical to the charges
      in the present case, and further, because defendant was asserting self-defense, it was essential
      to obtain a ruling on the motion before defendant decided whether to testify:
               “any probative value [the prior convictions] may have is substantially outweighed by
               the prejudice to the defendant in that this is a shooting case and the crime is so
               similar. The prejudicial effect really hits home in this case because it determines
               whether or not really [defendant] is going to take the stand or not.


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                  He is trying to allege a self-defense which becomes almost impossible if he
             doesn’t take the stand in his own behalf, but my advice is if the Jury is informed
             about a prior aggravated battery with a firearm conviction and the attempted murder
             conviction revolving around a firearm that their ears would be closed to [defendant’s]
             self-defense testimony and only open their eyes to the prior conviction and that I
             think that that’s why we are considering this ruling of such a magnitude that if the
             Court allows them to get into that conviction then he has to not get on the witness
             stand and I don’t think that’s fair.”
     The trial judge declined to rule on defense counsel’s motion before trial, stating:
             “[P]art of the balancing test is if other witnesses are going to have convictions and
             their credibility is going to be judged on the basis of prior convictions, why shouldn’t
             it be done for the defendant?
                                                ***
                  So I will give you some indication depending on how much impeachment is used
             on other witnesses and if it is used, if they have similar convictions or of a similar
             nature, then I think the effect is lessened. I can’t make a decision right now, but at
             this point in time I am going to deny it; but I’m going to revisit the matter after I have
             heard all the evidence.”
     Thereafter, the matter proceeded to a jury trial, which was held in February 2006.
¶4       Brian Finley testified on behalf of the prosecution. Finley stated that on June 8, 2004, at
     approximately 10 p.m., he was at a friend’s house watching a basketball game when his
     brother, Xavier, called. Xavier, who had been sitting on a porch with some friends and had
     seen defendant approach with a group of teenagers, said that defendant was trying to kill him
     and that Finley should come and get him. After receiving Xavier’s call, Finley went to his
     house, took his mother’s car, and picked up Maurice Sterling.
¶5       After picking up Sterling, Finley spotted defendant, whom he knew from the
     neighborhood, with a group of about four teenagers. Finley got out of the car and asked
     defendant where his brother was. Finley testified that he saw the other teenagers who were
     with defendant moving around and saw one of the teenagers hand something to defendant
     which was black and “real big.” Sterling then yelled, “He got a gun.” Finley and Sterling
     turned and ran back toward the car. Finley testified that, as Sterling was getting into the car
     through the passenger side door, there was a loud “pow” and Sterling jerked and fell into the
     car. Finley then grabbed Sterling, pulled him completely into the car, and drove off. In his
     testimony, Finley acknowledged that he pled guilty to a felony gun charge in 1998 and that
     he was currently facing contempt charges.
¶6       Maurice Sterling testified that he was shot in the head but that he did not remember
     anything about the incident.
¶7       James Johnson testified on behalf of defendant. Johnson was sitting on a porch when he
     saw a car pull up and someone get out. Johnson stated there was an argument and then
     “somebody got to tussling. They was like, kind of like arm wrestling or whatever, and the
     gun went off.” Johnson immediately ran inside. Johnson testified that the argument only
     lasted for 7 to 10 seconds before the “tussling” started and that he never observed a gun, but

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       only heard a shot.
¶8         Defendant testified on his own behalf. Defendant stated that on June 8, 2004, at
       approximately 10:30 p.m., he was walking home when he saw a black car approach and two
       people jump out. Defendant later learned the two people were Brian Finley and Maurice
       Sterling. Defendant testified that Finley was talking “crazy,” saying that someone was trying
       to do something to his brother. Defendant did not know Finley or his brother at that time and
       responded, “Man, what the fuck.” Finley then pulled a revolver from the small of his back
       and said, “Don’t run.”
¶9         Defendant testified that he wrestled with Finley for the gun. Defendant got behind Finley
       and put his left hand on top of Finley’s hand which was holding the gun. The two of them
       spun around about 180 degrees, at which point the gun went off. Defendant did not see a
       bullet strike anyone. Defendant stated that he then pushed Finley and ran home. Defendant’s
       attorney did not elicit from defendant whether he had any prior convictions.
¶ 10       After defendant testified, the State sought to admit his prior conviction for possession of
       a controlled substance from 2002, and convictions for attempted first degree murder and
       aggravated battery with a firearm from 1992, arguing they were relevant and admissible to
       impeach defendant because defendant had an interest in fabricating his story. Defense
       counsel objected to the admission of the prior convictions, stating:
                “Judge, [ ] we hashed this out beforehand, and I—I felt like everything was
                absolutely clear. *** [B]asically what the implication of what the Court’s prior ruling
                was, deferred ruling, which is that, [ ] at that point in time I fully intended on going
                at Brian Finley at possession of weapon and his propensities ***.
                    We made a—a strategic decision, at that point, Judge, whether it was to our
                benefit to leave Brian Finley alone on his prior gun possession case and any possible
                implications, because getting in that—one or two questions on that was seriously
                outweighed by then the Court saying that, okay, well you went into it with him, now
                they can go into his [defendant’s]—go deeper into his background. I didn’t ask one
                question of Brian Finley about a gun case. *** We specifically stayed away from it.
                Didn’t imply it. Didn’t go anywhere near it.”
¶ 11       Defense counsel offered to allow the State to impeach defendant with his prior conviction
       for possession of a controlled substance, but argued that the other convictions were more
       prejudicial than probative. The court allowed the State to introduce defendant’s prior
       convictions for possession of a controlled substance and aggravated battery with a firearm
       but ruled that the State could not introduce his attempted first degree murder conviction. In
       rebuttal closing argument, the State argued, “And what is defendant’s interest or bias in
       trying to fabricate a story for you to believe? He was previously convicted of possession of
       a controlled substance, and, also, aggravated battery with a firearm. He has the most interest
       to concoct the story for you.”
¶ 12       The jury acquitted defendant of attempted first degree murder but found him guilty of
       aggravated battery with a firearm. The circuit court sentenced defendant to 40 years’
       imprisonment.
¶ 13       On direct appeal, defendant was represented by the same attorney who represented him

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       at trial. Defendant’s attorney argued that the State failed to prove defendant guilty beyond
       a reasonable doubt; that the trial court improperly admitted one of defendant’s prior
       convictions because it was more prejudicial than probative under Montgomery; and
       defendant’s sentence was excessive. The appellate court affirmed both defendant’s
       conviction and sentence in an unpublished order on March 23, 2007. People v. Cathey, No.
       1-06-0460 (2007) (unpublished order under Supreme Court Rule 23). This court denied leave
       to appeal.
¶ 14        On September 30, 2008, defendant filed the instant pro se postconviction petition.
       Defendant’s pro se petition alleged, inter alia, that he was denied effective assistance of
       counsel because counsel failed to argue on appeal that defendant’s trial judge erred when he
       delayed ruling on defendant’s motion in limine. Defendant also averred that counsel told him
       that if the State’s primary witness, Brian Finley, was not impeached with his prior
       conviction, then the judge would not allow the State to impeach defendant with his
       convictions. Further, according to defendant, he relied on counsel’s erroneous advice in
       deciding to testify. Defendant also alleged that he was denied effective assistance of counsel
       because counsel failed to request a reckless conduct jury instruction.
¶ 15        The circuit court summarily dismissed defendant’s petition. The appellate court affirmed,
       addressing and rejecting both of defendant’s claims of ineffective assistance of counsel. 406
       Ill. App. 3d 503. We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
       Feb. 26, 2010).

¶ 16                                       ANALYSIS
¶ 17       The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)) “provides a
       procedural mechanism in which a convicted criminal can assert ‘that in the proceedings
       which resulted in his or her conviction there was a substantial denial of his or her rights
       under the Constitution of the United States or of the State of Illinois or both.’ ” People v.
       Harris, 224 Ill. 2d 115, 124 (2007) (quoting 725 ILCS 5/122-1(a) (West 2002)). A circuit
       court may summarily dismiss a postconviction petition if it determines that the petition is
       “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2006). A
       postconviction petition is considered frivolous or patently without merit only if it has no
       “arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). We
       review the trial court’s order summarily dismissing a pro se postconviction petition de novo.
       People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

¶ 18                                   I. “Patrick Violation”
¶ 19      The appellate court began its analysis of defendant’s appeal by stating the following:
                 “In this appeal, defendant first contends that the circuit court erred in dismissing
             his pro se petition as frivolous and patently without merit because he set forth the gist
             of a claim that the trial court violated his constitutional rights as set forth in People
             v. Patrick, 233 Ill. 2d 62 (2009), when it delayed ruling on his motion in limine to
             exclude evidence of his prior convictions, made pursuant to People v. Montgomery,
             47 Ill. 2d 510 (1971), until after he had testified. *** In Patrick, 233 Ill. 2d at 69-73,

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                our supreme court held that a trial court’s failure to rule on a motion in limine on the
                admissibility of prior convictions when it has sufficient information to do so
                constitutes an abuse of discretion and infringes on a defendant’s right to testify in his
                own behalf.” 406 Ill. App. 3d at 505-06.
       The appellate court then went on to reject this claim, holding, inter alia, that Patrick does
       not apply retroactively to cases on collateral review. 406 Ill. App. 3d at 508-10.
¶ 20        Although the majority of the appellate court’s opinion addressed whether defendant had
       properly raised a “Patrick violation,” we have been unable to find any citation to Patrick in
       defendant’s postconviction petition or any contention by defendant that a Patrick violation
       or Patrick-type violation may be raised for the first time on collateral review. As noted,
       defendant does allege that counsel was ineffective on direct appeal for not arguing that the
       trial judge erred when he delayed ruling on defendant’s motion in limine. However, the
       Patrick claim addressed by the appellate court is not contained in defendant’s petition.
¶ 21        As this court has stated, “ ‘[t]he question raised in an appeal from an order dismissing
       a post-conviction petition is whether the allegations in the petition, liberally construed and
       taken as true, are sufficient to invoke relief under the Act.’ (Emphasis added.) Thus, any
       issues to be reviewed must be presented in the petition filed in the circuit court.” People v.
       Jones, 211 Ill. 2d 140, 148 (2004) (quoting People v. Coleman, 183 Ill. 2d 366, 388 (1998));
       see also, e.g., People v. Petrenko, 237 Ill. 2d 490, 502 (2010). The appellate court below
       erroneously reached an issue that was not raised in defendant’s postconviction petition.
       Accordingly, we vacate that portion of the appellate court’s opinion which addressed the
       Patrick violation and held that Patrick does not apply retroactively to cases on collateral
       review.

¶ 22                   II. Ineffective Assistance of Counsel, Motion in Limine
¶ 23        Defendant’s pro se petition alleged that counsel provided ineffective assistance on direct
       appeal because he failed to argue that the trial judge erred when he delayed ruling on
       defendant’s motion in limine. Claims of ineffective assistance are governed by the standard
       set forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill.
       2d 504 (1984) (adopting Strickland). To prevail on a claim of ineffective assistance of
       counsel, a defendant must demonstrate that counsel’s performance was deficient and that the
       deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. More
       specifically, a defendant must show that counsel’s performance was objectively unreasonable
       under prevailing professional norms and that there is a “reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have been different.”
       Strickland, 466 U.S. at 694. At the first stage of proceedings under the Act, a petition
       alleging ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable
       that counsel’s performance fell below an objective standard of reasonableness and (ii) it is
       arguable that the defendant was prejudiced. Hodges, 234 Ill. 2d at 17.

¶ 24                             A. Deficient Performance
¶ 25       The appellate court concluded that counsel’s performance could not have been

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       unreasonable as a matter of law because Patrick was not decided until after defendant’s
       direct appeal was complete. The appellate court explained: “Patrick, which announced a new
       constitutional rule of criminal procedure, was not decided until after the completion of
       defendant’s trial and direct appeal, and we therefore conclude that counsel was not
       ineffective for failing to challenge the trial court’s delay in ruling on his motion in
       defendant’s posttrial motion for a new trial or on direct appeal.” 406 Ill. App. 3d at 511.
¶ 26        The appellate court’s analysis is misplaced. The inquiry is not simply when Patrick was
       decided. Rather, the relevant focus under Strickland is on the state of the law at the time of
       defendant’s trial and appeal and whether a reasonable attorney should have challenged the
       trial court’s delayed Montgomery ruling. For the following reasons, we hold that it is at least
       arguable that prevailing norms required a reasonable attorney to argue that the trial judge
       erred when he delayed ruling on defendant’s motion in limine.
¶ 27        First, at the hearing on defendant’s motion in limine, defense counsel argued that the
       timing of the trial court’s decision was important because it affected whether defendant
       would testify. Counsel argued that it would be impossible for defendant to put forth his
       defense if he could not take the stand but, if his prior convictions were used to impeach him,
       counsel would recommend that defendant not take the stand. Counsel further emphasized
       that the judge’s decision on the motion in limine was of “such magnitude” that it affected the
       fairness of defendant’s trial. Thereafter, when the State sought to introduce defendant’s prior
       convictions, defense counsel pointed out he believed the trial court’s earlier ruling was that,
       if he did not impeach Finley with his prior convictions, the trial court would not allow the
       State to impeach defendant with his. Counsel argued that, if the court were to now allow the
       State to do so, defendant would suffer prejudice, which would render his trial unfair. Thus,
       defendant’s counsel was clearly cognizant of the importance of the delayed-Montgomery
       issue and in obtaining a ruling so that defendant could make a decision regarding whether
       to testify. Nothing in the record suggests why, given counsel’s own emphasis on the
       importance of the issue, it was not raised on appeal.
¶ 28        Further, during the time of defendant’s trial and appeal, several appellate decisions
       addressed the issue of delaying a Montgomery ruling. For example, in People v. Ballard, 346
       Ill. App. 3d 532, 544-45 (2004), the appellate court declined to grant the defendant a new
       trial because he had not testified, but concluded that “the [trial] court should have ruled and
       then defendant could meaningfully consider whether to exercise his right to testify.”
       Numerous other cases were also filed in the appellate court raising this issue.1 Authority from


               1
                People v. McGregory, No. 1-06-1119 (Feb. 6, 2008) (unpublished order under Supreme
       Court Rule 23) (opening brief filed July 23, 2007); People v. Tucker, No. 1-06-2619 (May 12, 2008)
       (unpublished order under Supreme Court Rule 23) (opening brief filed September 26, 2007), appeal
       allowed, 231 Ill. 2d 684 (Mar. 25, 2009) (consolidated with People v. Averett, 237 Ill. 2d 1 (2010));
       People v. Averett, 381 Ill. App. 3d 1001 (Mar. 31, 2008) (opening brief filed February 15, 2007),
       aff’d, 237 Ill. 2d 1 (2010); People v. Byrd, No. 1-05-1081 (Feb. 22, 2008) (unpublished order under
       Supreme Court Rule 23) (opening brief filed May 22, 2006); People v. Williams, No. 1-05-2629
       (Feb. 15, 2008) (unpublished order under Supreme Court Rule 23) (opening brief filed December
       5, 2006); People v. Cowans, No. 1-06-0947 (Jan. 16, 2008) (unpublished order under Supreme Court

                                                   -7-
       other jurisdictions, which was later cited in our decision in Patrick, had also found error in
       not ruling on the admissibility of a defendant’s prior conviction until after the defendant
       testifies. See, e.g., Settles v. State, 584 So. 2d 1260 (Miss. 1991); State v. McClure, 692 P.2d
       579 (Or. 1984); State v. Ritchie, 473 A.2d 1164 (Vt. 1984). Further, the appellate court’s
       decision in People v. Phillips, 371 Ill. App. 3d 948 (2007), which held that a trial court
       abused its discretion in delaying ruling on a Montgomery issue, was filed on March 6, 2007,
       before the appellate court filed its decision in defendant’s direct appeal.
¶ 29       Based on the defense counsel’s awareness of the issue, and the fact that it was a
       frequently litigated matter of criminal law during the pendency of defendant’s trial and direct
       appeal, we conclude it is at least arguable that counsel’s failure to raise the issue of the
       delayed Montgomery ruling on appeal “fell below an objective standard of reasonableness.”
       Strickland, 466 U.S. at 687-88. Accordingly, defendant’s claim of ineffective assistance was
       not frivolous or patently without merit with respect to the deficient performance prong of
       Strickland.

¶ 30                                         B. Prejudice
¶ 31       Defendant maintains that he was prejudiced by counsel’s failure to raise the delayed-
       Montgomery-ruling issue on appeal. Defendant notes that this court announced that the
       petitions for leave to appeal had been allowed in Phillips and Patrick several months before
       denying defendant’s petition for leave to appeal from his direct appeal. Defendant maintains
       that, if the delayed-Montgomery-ruling issue had been raised in his direct appeal, then,
       regardless of who succeeded on the issue, either defendant’s petition for leave to appeal or
       the State’s petition for leave to appeal would have been granted or held in abeyance pending


       Rule 23) (opening brief filed June 5, 2007); People v. Wright, No. 1-05-2892 (Dec. 28, 2007)
       (unpublished order under Supreme Court Rule 23) (opening brief filed May 17, 2007); People v.
       Love, No. 1-05-3935 (Dec. 4, 2007) (unpublished order under Supreme Court Rule 23) (opening
       brief filed July 12, 2007); People v. Holloway, No. 1-05-3439 (Nov. 30, 2007) (unpublished order
       under Supreme Court Rule 23) (opening brief filed May 23, 2007), vacated, 231 Ill. 2d 677 (Mar.
       25, 2009) (supervisory order; for reconsideration in light of Patrick), aff’d, 398 Ill. App. 3d 317
       (2009); People v. Westbrook, No. 1-06-0206 (Sept. 14, 2007) (unpublished order under Supreme
       Court Rule 23) (opening brief filed January 24, 2007); People v. DeBerry, 375 Ill. App. 3d 822
       (2007) (opening brief filed December 29, 2006); People v. Franklin, No. 1-05-1213 (May 4, 2007)
       (unpublished order under Supreme Court Rule 23) (opening brief filed July 26, 2005); People v.
       Walker, No. 1-05-0356 (Mar. 22, 2007) (unpublished order under Supreme Court Rule 23) (opening
       brief filed July 18, 2006); People v. Harvey, No. 1-05-0943 (Nov. 27, 2006) (unpublished order
       under Supreme Court Rule 23) (opening brief filed April 25, 2006); People v. Mitchell, No. 1-04-
       3006 (Aug. 11, 2006) (unpublished order under Supreme Court Rule 23) (opening brief filed
       September 2, 2005); People v. Smith, No. 1-03-2631 (May 19, 2006) (unpublished order under
       Supreme Court Rule 23) (opening brief filed December 22, 2004); People v. Summers, No. 1-04-
       2163 (Feb. 10, 2006) (unpublished order under Supreme Court Rule 23) (opening brief filed April
       24, 2005); People v. Calixto, No. 1-04-2201 (Jan. 30, 2006) (unpublished order under Supreme Court
       Rule 23) (opening brief filed June 21, 2005); People v. Thomas, No. 1-04-0283 (Nov. 10, 2005)
       (unpublished order under Supreme Court Rule 23) (opening brief filed November 18, 2004).

                                                  -8-
       this court’s decision in Patrick. Further, defendant argues that his case is similar to Patrick
       and, thus, he would have benefitted from this court’s ruling in that case. The State, in its
       brief, does not respond to this argument. Given the facts as alleged by defendant, we
       conclude there is at least an arguable basis that defendant was prejudiced by counsel’s failure
       to raise the delayed-Montgomery-ruling issue on appeal. Accordingly, defendant’s
       postconviction claim of ineffective assistance was not frivolous or patently without merit
       with respect to the prejudice prong of Strickland.
¶ 32        Because defendant’s claim of ineffective assistance of counsel with respect to the
       delayed-Montgomery-ruling issue is not frivolous or patently without merit, this matter must
       be remanded to the circuit court for further proceedings. In so holding, we note that our
       decision only entitles defendant to advance to the second stage of the postconviction
       proceedings, where he may be appointed counsel and submit an amended petition. See 725
       ILCS 5/122-4, 122-5 (West 2006). We express no opinion on whether defendant will be able
       to meet the second-stage standard and proceed to an evidentiary hearing on his amended
       petition. See People v. Edwards, 197 Ill. 2d 239, 246-47 (2001) (a decision on whether
       petitioner has established a substantial showing of a constitutional violation is inappropriate
       at the summary dismissal stage of postconviction proceedings).

¶ 33                   III. Ineffective Assistance of Counsel, Jury Instruction
¶ 34       Defendant’s postconviction petition also contained an allegation that counsel was
       ineffective for failing to request a reckless conduct jury instruction. We need not address this
       issue. Partial summary dismissals are not permitted under the Post-Conviction Hearing Act.
       People v. Rivera, 198 Ill. 2d 364 (2001). Because we have concluded that defendant’s
       petition sets forth a claim of ineffective assistance of counsel with respect to the delayed
       Montgomery ruling which survives summary dismissal, the entire petition must be remanded
       for further proceedings, regardless of the merits of any other claims. Further, because the
       appellate court erred in holding that defendant’s claim of ineffective assistance regarding the
       Montgomery issue was subject to summary dismissal, the appellate court erred in addressing
       the ineffective assistance claim regarding the jury instruction—there was no need to reach
       that claim. Accordingly, we vacate that portion of the appellate court opinion which held that
       defendant’s claim of ineffective assistance of counsel with respect to the jury instruction was
       frivolous or patently without merit.

¶ 35                                   CONCLUSION
¶ 36      For the foregoing reasons, we reverse the judgments of the appellate and circuit courts
       and remand this cause to the circuit court for further proceedings consistent with this
       decision.

¶ 37      Appellate court judgment reversed.
¶ 38      Circuit court judgment reversed.
¶ 39      Cause remanded.


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