                                                                                  FILED
                                    2015 IL App (4th) 131035                    September 9, 2015
                                                                                   Carla Bender
                                          NO. 4-13-1035                         th
                                                                               4 District Appellate
                                                                                    Court, IL
                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                       FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                          )      Appeal from
             Plaintiff-Appellee,                              )      Circuit Court of
            v.                                                )      Brown County
MICHAEL E. CRENSHAW,                                          )      No. 09CF5
            Defendant-Appellant.                              )
                                                              )      Honorable
                                                              )      Diane M. Lagoski,
                                                              )      Judge Presiding.


               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.



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¶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.

¶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



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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



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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."

¶ 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



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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



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conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The

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



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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).

¶ 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



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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



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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.

The Third District found no error in the trial court's determination that the defendant had failed



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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 98th 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



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               (b) of Section 122-2.1 without pleadings from the State. Leave of

               court may be 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.

¶ 38           As stated, leave of court may be granted only if a petitioner demonstrates cause



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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



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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

Lagoski presiding over the divorce case and included an issue of judicial conflict or bias in the

amended postconviction petition.



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¶ 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



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judgment, we award the State its $50 statutory assessment against defendant as costs of this

appeal.

¶ 48           Affirmed.




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