                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Miller, 2013 IL App (1st) 111147




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    FLYNARD MILLER, Defendant-Appellant.



District & No.             First District, First Division
                           Docket No. 1-11-1147


Filed                      April 15, 2013
Rehearing denied           May 9, 2013


Held                       The denial of defendant’s motion for leave to file a successive
(Note: This syllabus       postconviction petition, in which he alleged that his counsel’s failure to
constitutes no part of     inform him that he faced a firearm enhancement of his sentence if he was
the opinion of the court   convicted at trial caused him to reject a plea offer of an unenhanced
but has been prepared      sentence, was upheld on the grounds that he failed to show sufficient
by the Reporter of         cause and prejudice and that his claim was fully litigated and decided on
Decisions for the          appeal from the summary dismissal of his initial postconviction petition
convenience of the         making the same claim, thereby raising a res judicata bar to his
reader.)
                           successive petition.


Decision Under             Appeal from the Circuit Court of Cook County, No. 00-CR-24954; the
Review                     Hon. James M. Obbish, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier and Deepa Punjabi, both of State Appellate
Appeal                      Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy
                            M. Watroba, and Haley Peck, Assistant State’s Attorneys, of counsel), for
                            the People.


Panel                       JUSTICE DELORT delivered the judgment of the court, with opinion.
                            Presiding Justice Hoffman and Justice Rochford concurred in the
                            judgment and opinion.



                                              OPINION

¶1          Following a bench trial, defendant Flynard Miller was convicted of first degree murder
        and attempted first degree murder and sentenced to consecutive prison terms of 47 and 6
        years. We affirmed on direct appeal. People v. Miller, No. 1-04-0114 (2005) (unpublished
        order pursuant to Supreme Court Rule 23) (Miller I). His 2006 postconviction petition was
        summarily dismissed, and we affirmed that dismissal. We issued an opinion addressing the
        merits of his claim (the “lost plea claim”) that his rejection of a plea offer of an unenhanced
        sentence resulted from counsel failing to inform him that he faced a firearm enhancement if
        he was convicted at trial. People v. Miller, 393 Ill. App. 3d 629 (2009) (modified upon denial
        of rehearing August 31, 2009) (Miller II). Defendant now appeals from a circuit court order
        denying him leave to file a successive postconviction petition raising the same lost plea
        claim. He contends that he stated cause and prejudice sufficient to justify a successive
        petition. In particular, he contends that he established cause for the successive petition
        because (1) under Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), the absence of
        counsel on his initial petition deprived him of the opportunity to fully and properly raise the
        lost plea claim, and (2) this court’s affirmance of the summary dismissal of his initial petition
        was based on case law that has since changed under Lafler v. Cooper, 566 U.S. ___, 132 S.
        Ct. 1376 (2012). For the reasons stated below, we affirm the judgment of the circuit court.

¶2                                         BACKGROUND
¶3                             I. Trial Proceedings and Direct Appeal
¶4          Defendant and codefendant Joseph Eastling were charged in an October 2000 indictment
        with the first degree murder of Charles Fowler, by personal discharge of a firearm by both
        defendants proximately causing his death, and with the attempted murder and aggravated
        battery with a firearm of Michael Casiel, on or about September 16, 2000.
¶5          The evidence at trial showed that the incident began when defendant and Fowler bumped


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       into or jostled each other at the apartment Fowler shared with his fiancée, the mother of
       codefendant’s child. Fowler left his apartment immediately after the bumping but returned
       with three friends, including Casiel. When Fowler entered his apartment, with no weapon
       visible and with his friends in the hallway, defendant and codefendant drew their guns and
       fired at him. Fowler and his friends fled, with defendant and codefendant in pursuit and still
       firing. Fowler collapsed near the doorway of the building. Defendant continued to chase and
       fire at Casiel and the others, striking Casiel. Police officers saw defendant’s pursuit and
       firing, and two guns were recovered when defendant and codefendant were arrested. A bullet
       recovered at the scene was fired from defendant’s gun, and a bullet removed from Fowler’s
       body was from codefendant’s gun. Defendant testified that he fired his gun in self-defense
       with the intent to merely scare Fowler.
¶6          The court found defendant guilty of first degree murder, attempted murder, and
       aggravated battery with a firearm, finding that he personally discharged a firearm that
       proximately caused death. Defendant was sentenced to 47 years’ imprisonment for the
       murder, including a 25-year enhancement for personally discharging a firearm that
       proximately caused death, to be served consecutively with 6 years’ imprisonment for the
       other two offenses.
¶7          On direct appeal, defendant unsuccessfully challenged the firearm enhancement and
       contended that he was not properly admonished regarding his right to file a motion to
       reconsider his sentence. We affirmed, except for vacating duplicate murder counts and the
       aggravated battery conviction on a one-act-one-crime basis. Miller I, No. 1-04-0114 (2005)
       (unpublished order under Supreme Court Rule 23).

¶8                         II. Initial Postconviction Petition and Appeal
¶9         In 2006, defendant filed a pro se postconviction petition raising in relevant part the lost
       plea claim. Specifically, he alleged that pretrial counsel1 neglected to inform him that “if he
       did not take the plea bargain” offer of “20 years for the murder” and was found guilty, he was
       subject to a sentence enhancement of 25-years-to-life imprisonment for discharging a firearm
       that proximately caused death. Defendant attached affidavits from himself and his mother
       stating that the State made an offer of “20 years at 85% in exchange for a plea bargain
       wherein the charges of attempted murder and aggravated battery would be ousted” and that
       pretrial counsel informed them in February 2001 of the offer but did not tell them about the
       firearm enhancement. He stated that he would have accepted the offer, and she stated that she
       would have advised him to accept it, had they been aware of the enhancement. Defendant
       also stated that pretrial counsel at first agreed to sign an affidavit to the effect that he
       prejudiced defendant by failing to inform him that he was facing a sentencing enhancement
       of 25 years up to natural life, but “when time came for [pretrial counsel] to sign the affidavit,
       he refused.”
¶ 10       In October 2006, the circuit court summarily dismissed the petition, finding that the lost

               1
                A different attorney represented defendant at trial and for clarity will be referred to as “trial
       counsel.”

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       plea claim was predicated on conclusory allegations.
¶ 11        On appeal, defendant contended that his petition stated the gist of a meritorious claim
       regarding the lost plea. We summarized his claim:
            “[D]efendant seeks to rely on not being told that he faced a sentencing enhancement of
            25 years for proximately causing the first degree murder of Fowler to explain his
            rejection of an offer to plead guilty and receive the minimum sentence of 20 years for
            first degree murder. The defendant does not deny that he was duly informed that he faced
            up to 60 years if convicted of first degree murder. Nonetheless, he contends had he been
            informed that he faced a minimum sentence of 45 years by his pretrial attorney, he would
            have accepted a plea offer of 20 years purportedly extended in February 2001.” Miller
            II, 393 Ill. App. 3d at 635.
¶ 12        Defendant cited People v. Curry, 178 Ill. 2d 509 (1997), and People v. Paleologos, 345
       Ill. App. 3d 700 (2003), in support of his contention. In both Curry and Paleologos, the
       defendant rejected a plea offer without being informed that he was subject to consecutive
       sentencing if convicted after trial, and then received a consecutive sentence well in excess
       of the rejected offer. In Curry, a 4½-year offer was made, counsel informed the defendant
       that he would face approximately 4 years if tried, and the defendant was actually sentenced
       to 3 consecutive 4-year terms. In Paleologos, the defendant rejected a 22-year offer on advice
       that he faced up to 30 years if tried, but a 50-year aggregate sentence was imposed.
¶ 13        We acknowledged that our “supreme court noted the broad constitutional principle: ‘A
       criminal defendant has the constitutional right to be reasonably informed with respect to the
       direct consequences of accepting or rejecting a plea offer.’ ” (Emphasis in original.) Miller II,
       393 Ill. App. 3d at 633-34 (quoting Curry, 178 Ill. 2d at 528). However, we distinguished
       defendant’s case from Curry and Paleologos:
                 “In Curry and Paleologos, central to the claims of ineffective assistance of counsel
            was the misinformation provided by each defense counsel, prompting each defendant to
            proceed to trial. [Citations.]
                 In this case, no erroneous information was provided by defense counsel in February
            2001 that could have swayed the defendant’s rejection of the purported plea deal. The
            defendant’s allegation central to his claim of ineffective assistance of counsel is that
            defense counsel provided incomplete information as to the minimum sentence he faced
            after trial. The defendant does not contend he was unaware that he faced a minimum of
            20 years and as many as 60 years on the charge of first degree murder. Nor does the
            defendant contend, as the defendants did in Curry and Paleologos, that defense counsel
            represented that following a conviction he likely faced a sentence in line with the plea
            offer of 20 years. [Citations.]
                 The only reasonable inference to be drawn from the defendant’s rejection of the
            minimum sentence of 20 years for first degree murder is that the defendant desired to
            pursue his constitutional right to trial, to assert his claim of self-defense. In other words,
            his overriding desire was to fight the first degree murder charge. Of course, if convicted
            of first degree murder, he could do no better than a 20-year sentence that he claims he
            was offered upon a plea of guilty. Under these circumstances, it cannot be denied that the

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           defendant elected to ‘roll the dice,’ with full knowledge that he could be sentenced to as
           many as 60 years upon being convicted of first degree murder.” (Emphasis in original
           and omitted.) Miller II, 393 Ill. App. 3d at 636.
       We noted that the:
           “sentence imposed in this case of 47 years fell within the sentencing range the defendant
           was aware he faced for first degree murder alone. The record makes clear that the
           defendant was not misinformed as to the nonenhanced sentencing range as to the first
           degree murder charge. The defendant does not allege that his defense counsel gave him
           contrary information. We find no well-pleaded facts in the defendant’s petition to support
           his claim that his pretrial attorney provided deficient performance even if he omitted to
           tell him that he faced a minimum sentence of 45 years on the first degree murder charge.”
           Miller II, 393 Ill. App. 3d at 639.
¶ 14       We also held that his affidavit that he would have accepted the plea offer had he known
       of the firearm enhancement was subjective and self-serving, finding that the “affidavit from
       his mother offers nothing more than what is stated in the defendant’s affidavits” (Miller II,
       393 Ill. App. 3d at 638 n.2) and noting that he had not provided an affidavit from pretrial
       counsel as the Curry defendant had (Miller II, 393 Ill. App. 3d at 634, 639-40). For both
       reasons–the claim was legally unfounded and based on conclusory allegations of fact–we
       affirmed the summary dismissal of the initial petition. Miller II, 393 Ill. App. 3d at 640.

¶ 15                            III. Second Postconviction Petition
¶ 16       In January 2011, defendant filed a pro se motion for leave to file a successive
       postconviction petition. He claimed that he had cause based upon trial counsel’s discipline
       by the Attorney Registration and Disciplinary Commission (ARDC) and with regard to new
       ineffective assistance claims other than the lost plea claim. The proposed petition included
       the lost plea claim; that is, it alleged ineffective assistance of counsel by, in relevant part,
       “fail[ing] to inform the petitioner that he faced an extended term of 25 years[, which]
       precluded the petitioner from making a decision based upon all available facts, i.e., a plea
       bargain or jury trial.”
¶ 17       On March 25, 2011, the circuit court found that defendant failed to show cause and
       prejudice and denied him leave to file a successive petition. In its detailed order addressing
       the various claims in the successive petition, the court noted that the lost plea claim “could
       have been raised” on direct appeal or in the initial postconviction petition. This timely appeal
       followed.

¶ 18                          ARGUMENTS OF THE PARTIES
¶ 19       Defendant contends that he has stated cause and prejudice sufficient to support his
       successive petition. Regarding cause, he relies upon the Supreme Court’s recent decisions
       in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), and Lafler v. Cooper, 566 U.S.
       ___, 132 S. Ct. 1376 (2012). Defendant argues that the Supreme Court held that Martinez’s
       habeas petition could proceed due to the lack of effective counsel in his Arizona collateral


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       proceeding. Thus, defendant argues, the summary dismissal of his own initial petition does
       not bar the instant petition, because in that initial proceeding he did not have an opportunity,
       through counsel, to fully and properly raise the lost plea claim. Defendant also argues that
       our earlier affirmance of the summary dismissal was based on case law that has changed due
       to Lafler. In particular, though Illinois has recognized a right to effective assistance of
       counsel in plea negotiations and advice, Lafler clarified that the requisite prejudice for an
       ineffectiveness claim is only shown when, in addition to the reasonable probability that the
       defendant and trial court would have accepted the plea, the sentence the defendant received
       after trial was longer than the plea offer.
¶ 20        Defendant also contends that he can show prejudice sufficient to file a successive petition
       and relax res judicata constraints by arguing that his petition states the gist of a meritorious
       claim that pretrial counsel’s erroneous or incomplete advice deprived him of his opportunity
       to plead guilty. Thus, he expressly invokes the frivolous-and-patently-without-merit standard
       of the first stage of postconviction proceedings.
¶ 21        In its response, the State initially notes that neither the pending motion to file a
       successive petition nor the attached proposed petition is supported by affidavits or other
       documentation regarding the lost plea claim. The State also responds that defendant’s lost
       plea claim is barred as res judicata because the parties fully litigated, and this court decided,
       the lost plea claim on appeal from the summary dismissal of the initial petition. The State
       contends that Martinez does not apply here because it addressed only federal habeas petitions
       and refrained from addressing whether there is a constitutional right, applicable to the states,
       to counsel in initial-review collateral proceedings. The State also contends that Martinez is
       inapplicable or distinguishable because Arizona courts will not consider claims of ineffective
       assistance of counsel on direct appeal, relegating them solely to collateral proceedings, while
       Illinois courts do consider ineffectiveness claims on direct appeal. Regarding Lafler, the
       State contends that it does not change the law so as to justify relaxing res judicata because
       Illinois already recognized claims that a defendant rejected a plea on erroneous advice of
       counsel on direct appeal and in postconviction proceedings. Moreover, the State responds,
       our opinion in Miller rejecting defendant’s lost plea claim rests upon grounds unchanged by
       Lafler; namely, that the initial-petition claim that defendant would have rejected the plea
       offer had he known of the firearm enhancement was merely conclusory.

¶ 22                                    APPLICABLE LAW
¶ 23                              I. General Governing Principles
¶ 24       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) creates
       a three-stage procedure for addressing a defendant’s initial postconviction petition. Within
       90 days of the filing of a petition, “the court shall examine such petition” and if “the court
       determines the petition is frivolous or is patently without merit, it shall dismiss the petition
       in a written order” constituting a final judgment. 725 ILCS 5/122-2.1(a) (West 2010). A
       petition may be summarily dismissed as frivolous or patently without merit only if it has no
       arguable basis either in law or in fact, and we review a summary dismissal de novo. People
       v. Tate, 2012 IL 112214, ¶¶ 9-10. Our supreme court has upheld section 122-2.1 against


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       constitutional challenges to its authorizing of dismissal prior to the appointment of counsel.
       People v. Porter, 122 Ill. 2d 64, 69-77 (1988). There is no constitutional right to the
       appointment of counsel in postconviction cases generally, and particularly not for the first
       stage of proceedings, even where the petition was “essentially the first genuine opportunity
       [the defendant] had to present his ineffective assistance of trial counsel claims [that] were
       not appropriate for direct review” because they were outside the trial record. People v. Ligon,
       239 Ill. 2d 94, 112 (2010).
¶ 25       If the court does not summarily dismiss the petition, then the petition may be amended,
       and the court shall appoint counsel if the defendant requests it and is indigent. 725 ILCS
       5/122-2.1(b), 122-4, 122-5 (West 2010). However, the right to counsel in postconviction
       cases beyond the first stage is wholly statutory, so that counsel owes a duty of reasonable
       assistance that is satisfied by compliance with Supreme Court Rule 651(c), that is, by: (1)
       consulting with the defendant to ascertain the claimed deprivation of constitutional rights;
       (2) examining the record; and (3) making any amendments to the pro se petition necessary
       for an adequate presentation of the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6,
       2013); People v. Perkins, 229 Ill. 2d 34, 42 (2007). If the case is not dismissed upon the
       State’s motion for failing to make a substantial showing of a constitutional violation, then
       an evidentiary hearing may be held on the allegations in the petition. 725 ILCS 5/122-5, 122-
       6 (West 2010); Tate, 2012 IL 112214, ¶¶ 10, 12.
¶ 26       A defendant may file only one petition under the Act without leave of the court, which
       “may be granted only if a petitioner demonstrates cause for his or her failure to bring the
       claim in his or her initial postconviction proceedings and prejudice results from that failure.”
       725 ILCS 5/122-1(f) (West 2010). Cause is “an objective factor that impeded [the
       petitioner’s] ability to raise a specific claim during his or her initial postconviction
       proceedings.” 725 ILCS 5/122-1(f) (West 2010). In other words, cause may be shown by the
       petitioner pleading some objective factor external to the defense that impeded counsel or
       defendant from timely raising the claim in an earlier proceeding. People v. Gillespie, 407 Ill.
       App. 3d 113, 123 (2010). Prejudice exists when “the claim not raised during his or her initial
       postconviction proceedings so infected the trial that the resulting conviction or sentence
       violated due process.” 725 ILCS 5/122-1(f) (West 2010). While the test for initial petitions
       to survive summary dismissal is that the petition state the gist of a meritorious claim–that is,
       a claim of arguable merit–the cause and prejudice test for successive petitions is more
       exacting than the gist or arguable merit standard. People v. Edwards, 2012 IL App (1st)
       091651, ¶¶ 21-22, 26.
¶ 27       Because a postconviction proceeding is not an appeal from the judgment of conviction
       but a collateral attack on the trial proceedings, issues raised and decided on direct appeal are
       barred in postconviction proceedings under the doctrine of res judicata. Tate, 2012 IL
       112214, ¶ 8. Similarly, a “ruling on an initial post-conviction petition has res judicata effect
       with respect to all claims that were raised or could have been raised on the initial petition.”
       People v. Orange, 195 Ill. 2d 437, 449 (2001). More broadly, “any issues that have
       previously been decided by a reviewing court are barred by res judicata.” People v. Harris,
       224 Ill. 2d 115, 124-25 (2007).


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¶ 28                                         II. Martinez v. Ryan
¶ 29        In its 2012 Martinez ruling, the United States Supreme Court framed the issue as follows:
                 “The State of Arizona does not permit a convicted person alleging ineffective
            assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must
            bring the claim in state collateral proceedings. In the instant case, however, petitioner’s
            postconviction counsel did not raise the ineffective-assistance claim in the first collateral
            proceeding, and, indeed, filed a statement that, after reviewing the case, she found no
            meritorious claims helpful to petitioner. On federal habeas review, and with new counsel,
            petitioner sought to argue he had received ineffective assistance of counsel at trial and
            in the first phase of his state collateral proceeding. Because the state collateral proceeding
            was the first place to challenge his conviction on grounds of ineffective assistance,
            petitioner maintained he had a constitutional right to an effective attorney in the collateral
            proceeding. While petitioner frames the question in this case as a constitutional one, a
            more narrow, but still dispositive, formulation is whether a federal habeas court may
            excuse a procedural default of an ineffective-assistance claim when the claim was not
            properly presented in state court due to an attorney’s errors in an initial-review collateral
            proceeding.” Martinez, 566 U.S. at ___, 132 S. Ct. at 1313.
¶ 30        The Martinez Court recited the general law governing federal habeas petitions: that to
       ensure that state judgments are accorded finality and respect, the doctrine of procedural
       default bars a federal court from reviewing the merits of claims, including constitutional
       claims, that a state court declined to hear under a firmly established and consistently
       followed state procedural rule. Id. at ___, 132 S. Ct. at 1316. However, a federal court faced
       with a habeas petition may consider a defaulted claim upon a showing of cause for the
       default and prejudice from a violation of constitutional or other federal law. Id. at ___, 132
       S. Ct. at 1316.
¶ 31        Generally, negligence by postconviction counsel does not qualify as cause. Id. at ___, 132
       S. Ct. at 1316. However, the Court held, “a key difference between initial-review collateral
       proceedings and other kinds of collateral proceedings” is that, “[w]hen an attorney errs in
       initial-review collateral proceedings, it is likely that no state court at any level will hear the
       prisoner’s claim. This Court on direct review of the state proceeding could not consider or
       adjudicate the claim.” Id. at ___, 132 S. Ct. at 1316. Thus, “if counsel’s errors in an initial-
       review collateral proceeding do not establish cause to excuse the procedural default in a
       federal habeas proceeding, no court will review the prisoner’s claims.” Id. at ___, 132 S. Ct.
       at 1316. However, the:
            “same is not true when counsel errs in other kinds of postconviction proceedings. While
            counsel’s errors in these proceedings preclude any further review of the prisoner’s claim,
            the claim will have been addressed by one court, whether it be the trial court, the
            appellate court on direct review, or the trial court in an initial-review collateral
            proceeding.” Id. at ___, 132 S. Ct. at 1316.
¶ 32        The Court noted that where an initial-review collateral proceeding is the first forum to
       raise a claim of ineffectiveness by trial counsel, that proceeding is equivalent to a direct
       appeal regarding the ineffectiveness claim because the state court is addressing the merits of


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       the ineffectiveness claim for the first time and because defendants representing themselves
       in such proceedings are generally ill-equipped to do so without either “a brief from counsel
       or an opinion of the court addressing their claim of error.” Id. at ___, 132 S. Ct. at 1317. The
       Court also noted that the effect is similar where a state does not appoint counsel for initial-
       review collateral proceedings because imprisoned defendants may not understand the law and
       are practically or logistically less able to develop the evidentiary basis for the ineffectiveness
       claim. Id. at ___, 132 S. Ct. at 1317.
¶ 33        The Martinez Court noted that the “rules for when a prisoner may establish cause to
       excuse a procedural default are elaborated in the exercise of the Court’s discretion” and
       “reflect an equitable judgment that only where a prisoner is impeded or obstructed in
       complying with the State’s established procedures will a federal habeas court excuse the
       prisoner from the usual sanction of default.” Id. at ___, 132 S. Ct. at 1318. Allowing a
       federal habeas court to consider an ineffectiveness claim when that claim was procedurally
       defaulted in an initial-review collateral proceeding due to either the absence of, or errors by,
       counsel is an acknowledgment as a matter of equity that the initial-review collateral
       proceeding may thereby have been insufficient to ensure that proper consideration was given
       to a substantial claim of ineffectiveness. Id. at ___, 132 S. Ct. at 1318. Therefore, the Court
       held, “when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel
       claim in a collateral proceeding, a prisoner may establish cause for a default of an
       ineffective-assistance claim” that is demonstrated by the prisoner to be substantial–to have
       “some merit”–either “where the state courts did not appoint counsel in the initial-review
       collateral proceeding for a claim of ineffective assistance at trial” or “where appointed
       counsel in the initial-review collateral proceeding, where the claim should have been raised,
       was ineffective.” Id. at ___, 132 S. Ct. at 1318.
¶ 34        Regarding the provision of counsel for substantial claims of ineffectiveness, the Court
       observed that many states appoint counsel in initial collateral proceedings either universally,
       where the claims have some merit to them or the court deems the record worthy of further
       development, or where an evidentiary hearing is needed. Id. at ___, 132 S. Ct. at 1319. “It
       is likely that most of the attorneys appointed by the courts are qualified to perform, and do
       perform, according to prevailing professional norms; and, where that is so, the States may
       enforce a procedural default in federal habeas proceedings.” Id. at ___, 132 S. Ct. at 1319.
       The Court observed that its “limited qualification” of the general rule that negligence by
       postconviction counsel does not establish cause “does not implicate the usual concerns with
       upsetting reliance interests protected by stare decisis principles” and “remains true except
       as to initial-review collateral proceedings for claims of ineffective assistance of counsel at
       trial.” Id. at ___, 132 S. Ct. at 1319.
¶ 35        The Martinez Court emphasized that its decision was based on equitable rather than
       constitutional principles: The Court, therefore, would not address whether constitutional
       principles required an exception to the general rule that negligence of postconviction counsel
       does not constitute cause. Id. at ___, 132 S. Ct. at 1315. “The precise question here is
       whether ineffective assistance in an initial-review collateral proceeding on a claim of
       ineffective assistance at trial may provide cause for a procedural default in a federal habeas
       proceeding.” Id. at ___, 132 S. Ct. at 1315. The Court contrasted the effects of its equitable

                                                  -9-
       decision from a constitutional one:
          “A constitutional ruling would provide defendants a freestanding constitutional claim to
          raise; it would require the appointment of counsel in initial-review collateral
          proceedings; it would impose the same system of appointing counsel in every State; and
          it would require a reversal in all state collateral cases on direct review from state courts
          if the States’ system of appointing counsel did not conform to the constitutional rule. An
          equitable ruling, by contrast, permits States a variety of systems for appointing counsel
          in initial-review collateral proceedings. And it permits a State to elect between
          appointing counsel in initial-review collateral proceedings or not asserting a procedural
          default and raising a defense on the merits in federal habeas proceedings. In addition,
          state collateral cases on direct review from state courts are unaffected by the ruling in this
          case.” Id. at ___, 132 S. Ct. at 1319-20.

¶ 36                                     III. Lafler v. Cooper
¶ 37       In Lafler, issued a day after Martinez, the United States Supreme Court was faced with
       a claim of ineffective assistance of counsel for giving erroneous advice that allegedly caused
       the defendant to reject a plea offer he otherwise would have accepted. The parties conceded
       or agreed that counsel’s advice with respect to the plea offer fell below the constitutional
       standard of effective assistance of counsel. Thus, the issue before the Court was how to apply
       the prejudice prong of the Strickland ineffective-assistance test where ineffectiveness caused
       a defendant to reject a plea offer and he was then convicted at trial. Lafler, 566 U.S. at ___,
       132 S. Ct. at 1383. The circuit court of appeals had found, and the defendant argued, that the
       prejudice arose from having to stand trial. The prejudice test adopted by the Sixth Circuit
       was, as the Supreme Court described it, that:
           “In these circumstances a defendant must show that but for the ineffective advice of
           counsel there is a reasonable probability that the plea offer would have been presented
           to the court (i.e., that the defendant would have accepted the plea and the prosecution
           would not have withdrawn it in light of intervening circumstances), that the court would
           have accepted its terms, and that the conviction or sentence, or both, under the offer’s
           terms would have been less severe than under the judgment and sentence that in fact were
           imposed.” Id. at ___, 132 S. Ct. at 1385.
       In contrast, the government argued that prejudice under Strickland ineffectiveness cannot
       arise from plea bargaining where the defendant is convicted in a fair trial. Id. at ___, 132 S.
       Ct. at 1385. The Court analyzed and ultimately rejected the government’s contention.
¶ 38       The Court then turned to the issue of the appropriate remedy when “a defendant shows
       ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a
       more severe sentence.” Id. at ___, 132 S. Ct. at 1388. The Court distinguished two kinds of
       cases with two different remedies. In cases where the plea offered the defendant no more
       than a reduced sentence, because the charges to which the defendant would have pled guilty
       were the same ones he was in fact convicted of at trial, then “the court may conduct an
       evidentiary hearing to determine whether the defendant has shown a reasonable probability
       that but for counsel’s errors he would have accepted the plea.” Id. at ___, 132 S. Ct. at 1389.

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       If such a reasonable probability was shown, the court would have discretion to determine
       whether the defendant should receive the sentence in the plea offer, the sentence he received
       at trial, or another sentence between them. Id. at ___, 132 S. Ct. at 1389. However, where
       resentencing is not a proper remedy because the offer involved a guilty plea to fewer or lesser
       charges than those the defendant was convicted of at trial, or because a mandatory sentence
       applied following trial, then the proper remedy is to put the plea offer back into consideration
       and allow the court to decide whether to accept the plea or allow the trial conviction to stand.
       Id. at ___, 132 S. Ct. at 1389.

¶ 39                                          ANALYSIS
¶ 40        Defendant’s successive postconviction petition included claims of: (1) ineffective
       assistance of trial counsel due to drug and alcohol problems and disciplinary proceedings
       before the ARDC, (2) due process violations, and (3) actual innocence. The trial court found
       that defendant failed to show how trial counsel’s disciplinary problems involving other cases
       caused counsel to provide substandard representation in defendant’s case. The trial court
       found that defendant’s claimed due process violations failed to meet the cause and prejudice
       test and lacked merit. Finally, the trial court found that defendant’s claim of actual innocence
       was not freestanding and was based on cumulative evidence. Defendant has not made any
       argument in this court challenging the trial court’s findings as to these other claims in his
       successive postconviction petition or that the trial court erred in summarily dismissing the
       successive petition as to any claims other than the lost plea claim. “Issues not raised and
       argued before the appellate court are treated as waived.” Meyers v. Kissner, 149 Ill. 2d 1, 8
       (1992). In this appeal defendant only asserts cause and prejudice sufficient to relax res
       judicata to justify a successive petition on defendant’s claim of ineffective assistance of
       pretrial counsel for not informing defendant of the increased minimum sentence he faced if
       he rejected the State’s plea offer and proceeded to trial.
¶ 41        Here, we conclude that the circuit court did not err in denying defendant leave to file a
       successive petition because defendant failed to show the requisite cause and prejudice and
       because the lost plea claim was barred as res judicata. We decline defendant’s invitation to
       apply Martinez here. First and foremost, Martinez applies to federal courts considering
       habeas petitions and is expressly not a constitutionally based decision. Second, Martinez is
       limited to “initial-review collateral proceedings.” Martinez, 566 U.S. at ___, 132 S. Ct. at
       1315 (“This opinion qualifies Coleman by recognizing a narrow exception: Inadequate
       assistance of counsel at initial-review collateral proceedings may establish cause for a
       prisoner’s procedural default of a claim of ineffective assistance at trial.”). The Court defined
       “initial-review collateral proceedings” as “collateral proceedings which provide the first
       occasion to raise a claim of ineffective assistance at trial.” Id. at ___, 132 S. Ct. at 1315. This
       case does not fall under Martinez because Illinois, unlike Arizona, considers ineffective-
       assistance claims on direct appeal. People v. Banks, 237 Ill. 2d 154 (2010); People v. Phipps,
       238 Ill. 2d 54 (2010). Third, even if Martinez did apply to Illinois postconviction petitions,
       only ineffectiveness claims shown to be substantial would trigger any duties under Martinez
       to relax res judicata where the failure to timely raise the ineffectiveness claim resulted from
       a lack of counsel or ineffective counsel. Martinez, 566 U.S. at ___, 132 S. Ct. at 1313. See

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       Id. at ___, 132 S. Ct. at 1320 (“a procedural default will not bar a *** court from hearing a
       substantial claim of ineffective assistance at trial if, in the [proceedings which provide the
       first occasion to raise a claim of ineffective assistance at trial], there was no counsel or
       counsel in that proceeding was ineffective”). Martinez is particularly unpersuasive in this
       case, because (1) we have already considered the lost plea claim on its merits at length in a
       published opinion, and (2) although defendant did not have the benefit of counsel in the
       circuit court on his initial postconviction petition, he had counsel to formulate and present
       arguments in support of the lost plea claim in the de novo review of that dismissal before this
       court.
¶ 42        In Miller II, we accepted defendant’s claim that there had been a plea offer of 20 years
       and that pretrial counsel did not mention the firearm enhancement in advising him regarding
       the plea. Miller II, 393 Ill. App. 3d at 639. We affirmed the summary dismissal on the
       substantive basis that the case law relied upon by defendant, Curry and Paleologos, is
       distinguishable from his case. Miller II, 393 Ill. App. 3d at 638. We rejected as self-serving
       defendant’s assertion that he would have accepted the plea had he known of the
       enhancement. Miller II, 393 Ill. App. 3d at 639-40. We still find it fanciful for defendant to
       claim that he would have accepted a plea offer of 20 years had he known that his minimum
       sentence for murder with the enhancement was 45 years when he rejected that offer knowing
       that he could face 60 years for unenhanced murder.
¶ 43        We also conclude that Lafler has not changed the legal circumstances of this case as
       defendant contends. The Lafler rule is that a defendant shows prejudice from erroneous plea-
       related advice of counsel by showing that (1) there is a reasonable probability that, but for
       that advice, the defendant and the trial court would have accepted the plea offer, and (2) the
       sentence after trial was longer than the plea offer. As defendant himself notes, it is on the
       second point that Lafler states new or changed law. However, our Miller opinion is firmly
       based upon the first point. We expressly found that defendant’s original-petition claim–that
       he would have accepted the plea had he known of the firearm enhancement–was merely
       conclusory, despite being supported by affidavits to that effect from defendant and his
       mother, because defendant had been aware that he could face 60 years in prison when he
       rejected the 20-year plea offer. The Lafler Court’s addition of the more severe sentence
       element does not change that finding.
¶ 44        Defendant’s argument to the contrary–“[a]s Lafler has now explained, the focus of the
       prejudice inquiry is whether [defendant] would have had a less severe sentence had he
       accepted the State’s offer”–collapses the two elements of prejudice under Lafler into the
       latter one. That conflation is most succinctly refuted by the Lafler Court’s assertion that “the
       court may conduct an evidentiary hearing to determine whether the defendant has shown a
       reasonable probability that but for counsel’s errors he would have accepted the plea.” Lafler,
       566 U.S. at ___, 132 S. Ct. at 1389. If the focus of the prejudice inquiry were the mechanical
       question of whether the sentence exceeds the plea offer, then an evidentiary hearing would
       be utterly unnecessary. The reasonable probability of plea acceptance is a separate and
       distinct element in the Lafler prejudice analysis from the longer-sentence factor.



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¶ 45                               CONCLUSION
¶ 46   Accordingly, the judgment of the circuit court is affirmed.

¶ 47   Affirmed.




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