                              No. 2-08-0839       Filed: 5-21-10 Corrected 4-20-12
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 04--CF--2027
                                       )
MARLON JOHNSON,                        ) Honorable
                                       ) Grant S. Wegner,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BOWMAN delivered the opinion of the court:

       Following a jury trial, defendant, Marlon Johnson, was convicted of aggravated kidnaping

(720 ILCS 5/10--2(a)(5) (West 2002)) and aggravated criminal sexual assault (720 ILCS

5/12--14(a)(1) (West 2002)).      The trial court imposed consecutive sentences of 8½ years'

imprisonment on the aggravated kidnaping conviction and 10 years' imprisonment on the aggravated

criminal sexual assault conviction. Defendant subsequently filed a pro se postconviction petition

alleging violations of his constitutional rights from, among other things, the alleged nondisclosure

of fingerprint comparisons to his ultimate trial counsel and an officer's relying on an unidentified

translator to take the victim's initial statement. Because defendant's direct appeal was still pending

when defendant filed his postconviction petition, the trial court advanced the petition to the second

stage. Appointed counsel sought leave to withdraw on the basis that defendant's claims lacked merit,

and the trial court granted the motion to withdraw. Defendant proceeded pro se, and the trial court
No. 2--08--0839


granted the State's motion to dismiss his petition. On appeal, defendant argues that the trial court

erred in: (1) granting postconviction counsel's motion to withdraw, and (2) dismissing his

postconviction petition. We agree with defendant's first contention and therefore vacate in part,

reverse in part, and remand.

                                        I. BACKGROUND

         We summarize only the trial testimony necessary for an understanding of this appeal. The

victim, M.G., testified through an interpreter that on December 17, 2003, she had just parked her car

near her apartment building and was still seated within when defendant approached and asked for

a ride. When she declined, defendant threatened her with a knife and got into the passenger side of

the car. He forced M.G. to drive to various locations and perform oral sex on him. He ultimately

had her drive to a nearby apartment complex before he exited the car. The State introduced evidence

that a stain from M.G.'s clothing contained a sperm cell and evidence that a DNA sample from the

clothing matched defendant's DNA.

         Defendant testified that he had sold M.G. drugs on several occasions. Around the day in

question, M.G. asked defendant if he would "front" her drugs until she got paid. Defendant instead

offered to give her the drugs in exchange for oral sex, and M.G. agreed. She performed oral sex on

him in the laundry room of the apartment building where defendant was living with his girlfriend.

Defendant then said that he would bring M.G. the drugs. However, he did not return, because he did

not want his girlfriend to confront him about where he had been and why he was giving M.G. free

drugs.




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       The jury found defendant guilty, and on November 14, 2007, this court affirmed his

convictions on appeal. See People v. Johnson, No. 2--05--1269 (2007) (unpublished order under

Supreme Court Rule 23).

       Defendant filed a 40-plus-page postconviction petition on March 19, 2007, while his direct

appeal was pending. On April 13, 2007, the trial court entered an order noting that any issues raised

in a postconviction petition that were previously decided are barred by res judicata and that any

issues in the petition that could have been raised on appeal but were not are procedurally defaulted.

The trial court stated that, because it was unaware of the substance of defendant's pending direct

appeal, it was advancing the petition to the second stage of proceedings.

       On June 1, 2007, defendant filed a pro se motion seeking counsel from outside the public

defender's office. Defendant alleged that he had received a letter from assistant public defender

Donald Lorek stating that he had been appointed to represent defendant on his postconviction

petition, but Lorek did not subsequently respond to defendant's correspondence. Defendant further

alleged that there was a conflict of interest in having an attorney from the public defender's office

represent him, because of his prior conflicts with that office.1




       1
           In the trial proceedings, defendant was initially represented by assistant public defender

Brenda Willett. Defendant filed but then withdrew a motion for new counsel. Public defender

David Kliment subsequently took over defendant's representation because Willett was busy with a

trial. Kliment later filed a motion to withdraw based on a conflict of interest with defendant. The

trial court granted Kliment leave to withdraw and appointed private counsel Ronald Dolak to

represent defendant. Dolak represented defendant through the remainder of the trial proceedings.

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       On September 12, 2007, Lorek informed the trial court that he had been unable to examine

the transcripts because the case was still on appeal. The trial court discussed defendant's concerns

regarding lack of communication and progress with the petition, and it concluded that there was no

basis to appoint new counsel. The trial court continued the matter until November 7, 2007, for Lorek

to file either a Rule 651(c) (134 Ill. 2d R. 651(c)) certificate or a motion to continue.

       At the November 7 hearing, Lorek informed the trial court that he had reviewed the

transcripts and common-law record at the appellate court and had also reviewed the postconviction

petition. On Lorek's motion, the trial court continued the matter to December 20.

       On November 29, Lorek filed a motion for leave to withdraw. Lorek referenced defendant's

previous motions to replace trial and postconviction counsel, as well as an allegation in his

postconviction petition that the public defender's office had conspired with the State's Attorney's

office to deprive him of the results of fingerprint comparisons. Lorek stated that he had met with

defendant and discussed each issue raised in the postconviction petition. He stated that he believed

that the petition lacked merit and that he was obligated to move to withdraw under People v. Greer,

212 Ill. 2d 192 (2004). Lorek further stated that his examination of the reports of proceedings, the

common-law record, defendant's correspondence, and interviews of trial counsel had "not revealed

any other basis for the assertion of a claim of a deprivation of a constitutionally-protected right

which resulted in the sentence or conviction imposed herein."

       Lorek also filed a Rule 651(c) certificate, in which he stated the following. He had: reviewed

the court file; examined the pro se petition for postconviction relief and the attached exhibits; read

the reports of proceedings; discussed with defendant his claims of deprivation of constitutionally

protected rights; and reviewed the appellate defender's brief and the appellate court's decision. Lorek



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stated that he had expressed to defendant his opinions about the issues raised in the petition but could

not offer any amendments to the petition. Lorek further stated that he had spoken to defendant's trial

counsel several times about the case but that the "conversations have not shed any new light on

[defendant's] claims of deprivation of constitutionally-protected rights at the trial of this matter."

        On December 20, the trial court took Lorek's motion to withdraw under advisement and

continued the case. On January 2, 2008, the trial court granted the motion to withdraw. Lorek stated

that even though he could not support defendant's allegations, he could not "give specific answers

to specific questions" because it was not "[his] role to provide the State with an argument."

However, he offered to remain as standby counsel for defendant. The trial court stated that the

problems created by appointing him standby counsel outweighed the benefits. It further stated that

under Greer, notwithstanding Lorek's withdrawal, the hearings on defendant's postconviction petition

would continue. The trial court gave the State 45 days to either answer the petition or move to

dismiss.

        The State was given leave to file a motion to dismiss on April 3, 2008. On August 14,

defendant moved to amend his petition by adding argument in the event the trial court denied the

State's motion to dismiss. For purposes of appeal, defendant also raised an objection to Lorek's

withdrawal. Defendant stated that he had not been allowed an opportunity to respond to the motion

to withdraw. Defendant alleged that Lorek had misled the trial court "as to material facts" and the

"viability and truthfulness of the issues raised in" the petition. Defendant argued that under Greer,

counsel had to specifically show why he could not advance defendant's arguments, which Lorek had

failed to do. Defendant further alleged that Lorek had obtained two lab reports from the Illinois State

Police dated July 28, 2004, and April 14, 2005, which directly corroborated his allegations of a



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conspiracy between the public defender's and State's Attorney's offices to suppress evidence in his

case. Defendant stated that Lorek met with him on November 13, 2007, when Lorek had just the

former report. Although defendant told him that it corroborated his claims, Lorek replied that the

report did not prove anything, defendant's allegations were meritless, and he would withdraw as

counsel. Defendant alleged that Lorek maintained this position even after receiving the second

corroborating report, which he forwarded to defendant.

        The hearing on the motion to dismiss occurred on September 4, 2008, with defendant

appearing pro se. The State addressed the arguments raised in defendant's postconviction petition,

including the amendments. On the issue of the fingerprint evidence, the State argued that it had

tendered discovery regarding the prints, specifically "a two-page document" that was "an Illinois

State Police report offered by Miss Barbara Wilkins wherein it contains the finding that there are no

fingerprints." The State argued that it was "a DNA case," so it was defense counsel's trial strategy

"for not exploring that issue with respect to prints," though he did argue the issue in closing

argument. The State argued that the subject of fingerprints was ultimately inconsequential because

the issue was consent, and defendant had failed to show that he was prejudiced.

        On the fingerprint issue, defendant argued that he attached an "affidavit" from himself stating

that trial counsel Ronald Dolak informed him that he was never given any fingerprint comparisons

of any kind. Defendant argued that his statement was corroborated by a transcript of a hearing on

his pro se posttrial motion alleging ineffective assistance of trial counsel, at which Assistant State's

Attorney Pamela Monaco stated that, when she contacted the lab about the analysis of fingerprints

obtained from the victim's car, "they said once there's DNA, they don't really do fingerprints. It kind

of stops. There is nothing conclusive about any of the fingerprints, and it was not really an issue."



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At the same hearing, Dolak stated that "[a]s far as the fingerprints go, as far as the discovery I had,

there was no comparison." Defendant argued that the fingerprint evidence was significant to his

defense, which was that the oral sex was consensual and that he was never in M.G.'s car, which

would also negate the aggravated kidnaping charge. Defendant argued that under M.G.'s version of

events, his fingerprints should have been all over her car. Defendant also pointed out that during jury

deliberations, the jury specifically asked if it could take into account that the car was impounded and

fingerprints were not found.

        The trial court granted the State's motion to dismiss, finding that defendant was not entitled

to a third-stage evidentiary hearing. Defendant timely appealed.

                                            II. ANALYSIS

        On appeal, defendant challenges the trial court's grant of Lorek's motion to withdraw and its

grant of the State's motion to dismiss his postconviction petition.

        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2008)) provides

a procedural mechanism for criminal defendants to assert that their constitutional rights were

substantially violated during the original proceedings resulting in their convictions. People v. Harris,

224 Ill. 2d 115, 124 (2007). A proceeding under the Act is a collateral attack on the judgment,

allowing inquiry into issues that were not, and could not have been, adjudicated on direct appeal.

Harris, 224 Ill. 2d at 124. Issues that the defendant could have raised on direct appeal but did not

are procedurally defaulted, and issues that a reviewing court previously decided are barred by res

judicata. Harris, 224 Ill. 2d at 124-25.

        The Act creates a three-stage process for the adjudication of postconviction petitions in

noncapital cases. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At the first stage, the trial court must



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independently determine, within 90 days of the petition's filing, whether it is "frivolous or is patently

without merit." 725 ILCS 5/122--2.1(a)(2) (West 2008); Hodges, 234 Ill. 2d at 10. At this stage, a

defendant is not automatically entitled to the assistance of counsel. Greer, 212 Ill. 2d at 203.

Therefore, the petition's allegations, liberally construed and taken as true, need present only the gist

of a constitutional claim. Harris, 224 Ill. 2d at 126. If the trial court determines that the petition is

frivolous or patently without merit, the trial court must dismiss it. 725 ILCS 5/122--2.1(a)(2) (West

2008). Conversely, if the trial court finds that the petition is not frivolous or patently without merit,

or if the court does not take action on the petition within 90 days of its filing, the proceedings move

on to the second stage. 725 ILCS 5/122--2.1(b), 122--4 (West 2008). During the second stage, an

indigent defendant is entitled to the appointment of counsel (Greer, 212 Ill. 2d at 203-04), and counsel

may file an amended petition (People v. Blair, 215 Ill. 2d 427, 458 (2005)). The State, in turn, may

file a motion to dismiss the petition. 725 ILCS 5/122--5 (West 2008). If the trial court does not

dismiss the petition, it will conduct an evidentiary hearing on the merits of the petition during the

third stage. 725 ILCS 5/122--6 (West 2008).

        In Greer, our supreme court addressed the issue of whether postconviction counsel may seek

leave to withdraw. In that case, the defendant's petition advanced to the second stage, not because

the trial court had considered the petition's substance and determined that it was not frivolous or

patently without merit, but rather because the trial court had not acted upon it within the required 90-

day period for a summary dismissal. Greer, 212 Ill. 2d at 194-95. The defendant's appointed counsel

then filed a motion to withdraw, stating that he had reviewed the record, the transcripts of

proceedings, and the State's Attorney's files; had interviewed the relevant parties and the defendant;

and could find no meritorious issue for review. A supporting brief detailed counsel's course of action



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after appointment, stated that he could not " 'properly substantiate' " the defendant's claims, and

concluded that the allegations were without merit. Greer, 212 Ill. 2d at 200. Counsel also indicated

that he had considered other possible issues but did not find one of merit. Greer, 212 Ill. 2d at 200.

The trial court granted the attorney's motion to withdraw, and the appellate court affirmed. Greer, 212

Ill. 2d at 200-01.

        Our supreme court noted that under the Act, a defendant is entitled to only a "reasonable" level

of assistance, which is lower than the constitutionally guaranteed level of assistance afforded to

defendants at the trial phase. Greer, 212 Ill. 2d at 204. Postconviction counsel's duties are set forth

in Rule 651(c), which requires that postconviction counsel make a showing in the record that he or

she has: (1) consulted with the petitioner to ascertain his allegations of deprivation of constitutional

rights; (2) examined the record of proceedings at trial; and (3) made any amendments to pro se

petitions that are necessary to adequately present the petitioner's allegations. Greer, 212 Ill. 2d at 205.

        The Greer court reasoned that fulfilling the third obligation under Rule 651(c) does not require

postconviction counsel "to advance frivolous or spurious claims," because the amendments would

not qualify as "necessary" within the rule's meaning. Greer, 212 Ill. 2d at 205. The court further

reasoned that filing such an amended petition would appear to violate Rule 137 (155 Ill. 2d R. 137),

which states that an attorney's signature certifies that after a reasonable inquiry, he or she believes that

the pleading or motion is grounded in fact and warranted by existing law or a good-faith argument

for the extension, modification, or reversal of existing law. Greer, 212 Ill. 2d at 205. The court ruled

that nothing in the Act prevented appointed counsel from withdrawing if he or she determined that

the defendant's petition was frivolous or patently without merit, such that the attorney's ethical




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obligations would actually prohibit him or her from continuing representation. Greer, 212 Ill. 2d at

209.

        The Greer court went on to conclude that the record affirmatively demonstrated that the

defendant's postconviction allegations were frivolous and patently without merit and that the attorney

could withdraw as counsel. The court stated:

        "Although we hasten to emphasize that the inability of postconviction counsel to 'properly

        substantiate' a defendant's claims is not the standard by which counsel should judge the

        viability of a defendant's postconviction claims, and that an attorney moving to withdraw

        should make some effort to explain why defendant's claims are frivolous or patently without

        merit, it nonetheless appears that counsel fulfilled his duties as prescribed by Rule 651(c), and

        the record before us supports counsel's assessment that the defendant's postconviction claims

        were frivolous and without merit. Consequently, though the procedure in the circuit court

        leaves something to be desired, defense counsel should be allowed to withdraw, and we affirm

        the judgment of the appellate court in that respect." (Emphases in original.) Greer, 212 Ill.

        2d at 211-12.

        Subsequently, in People v. Pendleton, 223 Ill. 2d 458 (2006), our supreme court reiterated that

postconviction counsel " 'is only required to investigate and properly present the petitioner's claims' "

but is not required to advance frivolous or spurious claims. (Emphasis omitted.) Pendleton, 223 Ill.

2d at 472, quoting People v. Davis, 156 Ill. 2d 149, 164 (1993).

        Defendant argues that under Greer and Pendleton, Lorek should have given some reasons to

explain his conclusion that the petition's claims lacked merit. The State responds that Lorek, through

his motion for leave to withdraw, Rule 651(c) certificate, and statements to the court, clearly satisfied



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the requirements of Greer. The State further argues that Lorek was not required to explain why

defendant's claims were meritless, especially in light of Lorek's statement to the court that even

though he could not support defendant's allegations, it was not his role to provide the State with

argument.

        We agree with the State insofar as Lorek's compliance with the steps to support a motion to

withdraw. Although the Greer court stated that an attorney seeking to withdraw should make "some

effort" to explain his or her position that the defendant's claims are frivolous or patently without

merit, it also stated that postconviction counsel's duties are prescribed by Rule 651(c) and that the

defendant's counsel had satisfied those duties. Greer, 212 Ill. 2d at 212. Similarly, in this case Lorek

satisfied his Rule 651(c) obligations by stating that he had discussed defendant's postconviction

claims with him; had reviewed the record, including the reports of proceedings, the appellate

defender's brief, and this court's Rule 23 order; and that he could not offer any amendments. Lorek

further informed the trial court that he had spoken to defendant's trial counsel several times. As in

Greer, Lorek's decision not to elaborate on why he believed the claims to be meritless "leaves

something to be desired" (Greer, 212 Ill. 2d at 212) and makes review of the issue more difficult, but

Lorek still took the procedural steps necessary for a motion to withdraw.

        Defendant further argues that the trial court should not have allowed Lorek to withdraw,

because Lorek was wrong in his assessment that none of the petition's issues had potential merit.

Defendant highlights his claims regarding the police's use of an unidentified interpreter when taking

M.G.'s initial statement and trial counsel's failure to introduce the fingerprint comparisons. The State

argues that defendant was on notice that M.G.'s brother-in-law acted as an interpreter during the initial

interview and that any potential error would be harmless because M.G. testified at trial and was



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subject to cross-examination. On the fingerprint issue, the State argues that "a perfectly logical reason

was given for why the lab did not compare them. The assistant explained that once the lab had DNA,

it no longer needed to do fingerprint analysis. The assistant went on to state that there was not

anything conclusive about the fingerprints, and they were really not an issue." The State argues that

the assistant State's Attorney was correct because defendant never denied having been in the car or

having sex with M.G. The State further argues that both issues have been forfeited because they

could have been raised on direct appeal but defendant does not explain, either in his petition or in an

affidavit, why they were not.

        We agree with defendant that the fingerprint issue has potential merit, and Lorek therefore

should not have been allowed to withdraw as counsel.2 Under Greer, postconviction counsel is not

required to advance "frivolous or spurious claims" (Greer, 212 Ill. 2d at 205), which our supreme

court described as "frivolous or patently without merit" (Greer, 212 Ill. 2d at 212). This is identical

to the standard used at the first stage of postconviction proceedings to determine whether the petition

should be summarily dismissed. See 725 ILCS 5/122--2.1(a)(2) (West 2008). We recognize that

here, as in Greer, the petition advanced to the second stage of proceedings, not because the trial court

determined that it was not frivolous or patently without merit, but rather because the trial court could

not (or as in Greer, did not) make the first-stage assessment within the 90-day deadline. Still, in

determining whether to allow counsel to withdraw, the court must determine whether the record

supports counsel's assertion that the petition is frivolous or patently without merit. See Greer, 212

Ill. 2d at 212.



        2
            Based on our conclusion that the fingerprint issue has potential merit, we need not address

defendant's argument regarding the use of an interpreter.

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        A petition is frivolous or patently without merit only if it has no arguable basis in law or fact,

meaning that the claims are based on an indisputably meritless legal theory or a fanciful factual

allegation. Hodges, 234 Ill. 2d at 16-17. During the second stage of postconviction proceedings, the

petition's allegations are to be liberally construed in light of the trial record, and factual allegations

that the record does not positively rebut must be accepted as true. People v. Alberts, 383 Ill. App. 3d

374, 376 (2008). Defendant's allegations regarding trial counsel Dolak's failure to use the fingerprint

comparisons give rise to, among other things, a contention of ineffective assistance of counsel. To

prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test

set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

Hodges, 234 Ill. 2d at 17. The defendant must show that (1) trial counsel's performance fell below

an objective standard of reasonableness, and (2) the deficient performance resulted in prejudice.

Hodges, 234 Ill. 2d at 17. An allegation of ineffective assistance of counsel is not frivolous or

patently without merit if (1) counsel's performance arguably fell below an objective standard of

reasonableness, and (2) defendant was arguably prejudiced as a result. Hodges, 234 Ill. 2d at 17.

        Defendant's postconviction petition referenced the two lab reports dated July 28, 2004, and

April 14, 2005, regarding fingerprint comparisons, and he attached pages from the record mentioning

these reports. The record refers to the former report as indicating that five latent fingerprints, taken

from inside M.G.'s vehicle, did not match M.G.'s prints. It refers to the latter report as comparing the

five fingerprints to those of defendant. Defendant alleged that the State disclosed the reports to his

initial trial counsel, Willett, but that the reports did not subsequently get turned over to Dolak.

Defendant's allegation that Dolak did not receive the reports is supported by copies of reports of




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proceedings attached to the petition, namely, one from the hearing on defendant's pro se posttrial

motion, at which Dolak stated:

          "As far as the fingerprints go, as far as the discovery I had, there was no comparison, and we

          argued that fact that the State omitted it, that there wasn't any evidence against [defendant].

          I believe we argued that in our closing arguments, and I think that's how we addressed it."

At the same hearing, the assistant State's Attorney said, "they [the lab] said once there's DNA, they

don't really do fingerprints. It kind of stops. There is nothing conclusive about any of the

fingerprints, and it was not really an issue."

          Defendant alleged that the fingerprint results were material to proving his innocence and

described his unsuccessful attempts to obtain copies of the reports up to the time he filed the

postconviction petition. In his objection to Lorek's withdrawal, defendant alleged that Lorek obtained

the reports and provided him with copies. From the State's comments at the hearing on defendant's

pro se posttrial motion, it appeared to take the position that either the fingerprints were not even tested

or there were no conclusive results from the tests. The State reiterates this position in its brief.

However, the State acknowledged the existence of the reports at the hearing on its motion to dismiss

defendant's postconviction petition, stating that it had tendered "an Illinois State Police report offered

by Miss Barbara Wilkins wherein it contains the finding that there are no fingerprints." (Emphasis

added.)

          Copies of the reports included in the record on appeal show that the State has repeatedly

mischaracterized their content in its references to them. The July 28, 2004, report states that the lab

received five latent print lifts and fingerprint and palm-print cards from M.G. and two other

individuals. It concludes:



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                "An AFIS evaluation of Exhibit 5 revealed latent prints suitable for AFIS processing.

        Comparison of the AFIS suitable latent prints to the inked fingerprint cards marked [M.G. and

        the two other individuals] did not reveal any identifications.

                An AFIS search did not reveal an identification."

The April 14, 2005, report states that the five latent prints were resubmitted, and the lab also received

defendant's fingerprint and palm-print "standards." It concludes:

                "Examination of Exhibit 5 revealed latent prints suitable for comparison.

                Comparison of the suitable latent prints to the inked standards of [defendant] did not

        reveal any identifications."

Thus, the reports indicate that there were five latent fingerprints suitable for testing and that they did

not match M.G.'s or defendant's prints.

        Trial counsel Dolak's apparent failure to obtain the reports arguably fell below an objective

standard of reasonableness because he appeared to be unaware of their existence despite references

to them in documents in the common-law record prior to his appointment, as well as in prior hearings.

(To the extent that the reports should have been turned over to him but were not, defendant could

arguably have a separate due process violation claim.) Further, if Dolak did not have the reports, his

failure to introduce them at trial could not have been the result of trial strategy. Defendant was

arguably prejudiced because the results showing that his fingerprints did not match those found in the

car could lend some support to the defense theory that defendant was not in M.G.'s car and that the

encounter took place in the laundry room. The fingerprint evidence was not cumulative of the DNA

evidence, because defendant never denied that the sexual encounter took place but, rather, claimed

that it was consensual. Even if the jury did not believe that the oral sex was consensual, if it believed



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that the act occurred in the laundry room, it may still have found defendant not guilty of aggravated

kidnaping. The potential significance of the lack of matching fingerprints is highlighted by the jury's

question of whether it could consider that issue, which was not brought up in evidence but rather only

in defendant's closing argument.

        We further disagree with the State that defendant forfeited the fingerprint issue by failing to

raise it in his direct appeal. As indicated in his postconviction petition, defendant did raise the issue

in his pro se posttrial motion but, at a hearing on that motion, both the State and Dolak took the

position that the fingerprints were not tested or yielded no conclusive results. This misrepresentation

would explain why defendant did not raise the issue on appeal. Further, it is apparent that defendant

did not have copies of the reports until after he filed his postconviction petition.

        Because defendant's allegations arguably satisfy the Strickland test for ineffective assistance

of counsel, they are not frivolous or patently without merit, and the trial court erred in granting

Lorek's motion to withdraw. We therefore reverse this ruling. Defendant did have his claims heard

at a second-stage hearing, but he did so without the benefit of counsel to amend his petition and argue

on his behalf. We therefore vacate the trial court's grant of the State's motion to dismiss defendant's

petition and remand the case for second-stage proceedings to begin anew. Based on Lorek's request

to withdraw, defendant asks that we order that he be appointed counsel from outside the public

defender's office. However, on the record before us, we do not find such a measure warranted. We

express no opinion on whether any of defendant's claims are sufficient to withstand a motion to

dismiss. See Hodges, 234 Ill. 2d at 22-23.

                                          III. CONCLUSION




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       For the foregoing reasons, we vacate the trial court's grant of the State's motion to dismiss

defendant's postconviction petition and reverse its grant of postconviction counsel's motion to

withdraw. We remand the cause for further proceedings consistent with this opinion.

       Vacated in part and reversed in part; cause remanded.

       ZENOFF, P.J., and SCHOSTOK, J., concur.




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