                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Kelley, 2013 IL App (4th) 110874




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MEKIEL V. KELLEY, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0874


Filed                      April 5, 2013


Held                       On appeal from the denial of defendant’s pro se postconviction petition
(Note: This syllabus       following an evidentiary hearing, the appellate court found that the trial
constitutes no part of     court did not abuse its discretion in requiring defendant to remain
the opinion of the court   handcuffed during the hearing, especially when it considered the
but has been prepared      circumstances of the unsecure nature of the courtroom and defendant’s
by the Reporter of         history of being disruptive.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Champaign County, No. 07-CF-2153;
Review                     the Hon. Heidi N. Ladd, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Peter A. Carusona and Mark D. Fisher, both of State Appellate
                           Defender’s Office, of Ottawa, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Kathy Shepard, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE TURNER delivered the judgment of the court, with opinion.
                           Justices Appleton and Harris concurred in the judgment and opinion.




                                              OPINION

¶1          In August 2010, defendant, Mekiel V. Kelley, filed a pro se petition for relief under the
        Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/art. 122 (West 2010)). In
        March 2011, appointed counsel filed an amended postconviction petition. After an
        evidentiary hearing, the Champaign County circuit court denied defendant’s request for
        postconviction relief.
¶2          Defendant appeals, asserting the trial court erred by (1) requiring defendant to wear
        shackles during the evidentiary hearing, (2) finding defendant’s argument trial counsel was
        ineffective for failing to file a motion to suppress was barred by the doctrine of res judicata,
        and (3) finding defendant’s claim his trial counsel was ineffective for failing to file a motion
        to reconsider defendant’s sentence was barred by the doctrine of forfeiture. We affirm.

¶3                                     I. BACKGROUND
¶4          In December 2007, the State charged defendant by information with the Class X felony
        of unlawful possession with the intent to deliver a controlled substance (720 ILCS
        570/401(a)(1)(A) (West Supp. 2007)), namely 15 grams or more but less than 100 grams of
        a substance containing heroin. On April 29, 2008, the State also charged defendant by
        information with unlawful possession with the intent to deliver a controlled substance (720
        ILCS 570/401(c)(1) (West Supp. 2007)), alleging he possessed 1 gram or more but less than
        15 grams of a substance containing heroin, a Class 1 felony. Both counts were based on
        defendant’s alleged actions on December 8, 2007. The heroin that was the basis for the
        charges was in a hotel room registered to defendant after the police stopped the vehicle in
        which he was a passenger in the hotel’s parking lot. The driver of the vehicle was Fred
        Walker, who was defendant’s codefendant.
¶5          At the April 29, 2008, court proceedings, the State requested the trial court arraign

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     defendant on the second count, dismiss the original count, and then proceed to trial on only
     the second count. Defendant noted his dissatisfaction with his trial counsel and wanted a
     continuance to hire new counsel. He also mentioned representing himself at trial. After
     addressing defendant’s motions, the trial court arraigned defendant on the new count, and
     defendant indicated he wanted a preliminary hearing. Thereafter, defendant stated he did not
     want to be present at his trial. The court excused defendant and conducted the preliminary
     hearing. After finding probable cause, the court dismissed the original count and commenced
     defendant’s jury trial on the second count. Defendant was absent from the courtroom for
     most of his trial.
¶6        At the conclusion of defendant’s trial, a jury found defendant guilty as charged. Defense
     counsel filed a posttrial motion, and defendant filed two pro se motions. At a July 2008 joint
     hearing, the trial court denied defense counsel’s posttrial motion, did not address defendant’s
     pro se motions, and sentenced defendant to 24 years’ imprisonment. No motion challenging
     defendant’s sentence was filed.
¶7        Defendant appealed and argued (1) he was denied his right to counsel of choice, (2) the
     trial court erred by failing to examine his posttrial ineffective-assistance-of-counsel claims,
     and (3) he was denied effective assistance of counsel because his trial counsel failed to file
     a motion to suppress. People v. Kelley, No. 4-08-0570, slip order at 2 (Jan. 6, 2010)
     (unpublished order under Supreme Court Rule 23). The facts presented at defendant’s trial
     relevant to the issues on his direct appeal are set forth in our order, and thus we do not repeat
     them here. See Kelley, slip order at 5-9. In our order, this court concluded the following: (1)
     the trial court did not abuse its discretion in denying defendant’s motion to continue to
     substitute counsel, (2) the trial court’s refusal to consider defendant’s pro se ineffective-
     assistance-of-counsel claims was not erroneous, and (3) defendant’s ineffective-assistance-
     of-counsel claim relief should be addressed under the Postconviction Act. Kelley, slip order
     at 16, 20, 26.
¶8        In August 2010, defendant filed his pro se postconviction petition, raising nine claims
     of constitutional error. Two of the claims were ineffective assistance of trial counsel based
     on counsel’s failure to file a motion to suppress and a motion to reconsider defendant’s
     sentence. In November 2010, the trial court moved defendant’s petition to the second stage
     of the postconviction proceedings and appointed counsel for defendant. In March 2011,
     appointed counsel filed an amended postconviction petition, which basically listed
     defendant’s arguments in clearer terms. Appointed counsel also filed a certificate under
     Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). That same month, appointed counsel
     supplemented the amended petition with a notarized affidavit of Walker.
¶9        In June 2011, the trial court set defendant’s petition for an evidentiary hearing since the
     State had failed to file a responsive pleading. On July 8, 2011, the court held the evidentiary
     hearing. At the beginning of the hearing, defendant’s counsel requested defendant’s shackles
     be removed so he could more easily assist counsel. The court denied defendant’s request.
     Defendant testified on his own behalf and presented the testimony of Walker, who testified
     the drugs found in the hotel room belonged to him and not defendant. He also asked the court
     to take judicial notice of the court file and transcripts in this case and the court file for
     Walker’s case (People v. Walker, No. 07-CF-2152 (Cir. Ct. Champaign Co.)). When

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       defendant testified, defendant’s counsel again requested the removal of his shackles, and the
       court again declined. Defendant testified he requested his trial counsel, Janie Miller-Jones,
       to file a motion to suppress the heroin found in the hotel room every time they talked, and
       she refused because she did not think defendant had a valid basis for such a motion.
       Defendant also testified he requested counsel to file a motion to reconsider his sentence. The
       State presented the testimony of Miller-Jones. Miller-Jones testified she did not file a motion
       to suppress because a valid basis for one did not exist. She also stated defendant did not ask
       her to file a motion to reconsider his sentence. At the conclusion of the hearing, the court
       took the matter under advisement.
¶ 10       In July 2011, the State filed a motion to reopen the evidence, which the trial court
       granted. On September 7, 2011, the court heard more evidence related to Walker’s testimony.
       On September 27, 2011, the court filed a written memorandum denying defendant’s
       postconviction petition. On September 30, 2011, defendant filed a timely notice of appeal
       in compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). See Ill. S. Ct. R.
       651(d) (eff. Dec. 1, 1984) (providing the supreme court rules governing criminal appeals
       apply to appeals in postconviction proceedings). Accordingly, this court has jurisdiction
       under Illinois Supreme Court Rule 651(a) (eff. Dec. 1, 1984).

¶ 11                                         II. ANALYSIS
¶ 12        Here, defendant challenges the trial court’s denial of his postconviction petition after an
       evidentiary hearing. The Postconviction Act provides a remedy for defendants who have
       suffered a substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill.
       2d 458, 471, 861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the
       Postconviction Act sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72,
       861 N.E.2d at 1007.
¶ 13        At the first stage, the trial court independently reviews the defendant’s postconviction
       petition and determines whether “the petition is frivolous or is patently without merit.” 725
       ILCS 5/122-2.1(a)(2) (West 2010). If it finds the petition is frivolous or patently without
       merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2010). If the court
       does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court
       appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense
       counsel may amend the defendant’s petition to ensure his or her contentions are adequately
       presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the
       State may file a motion to dismiss the defendant’s petition or an answer to it. Pendleton, 223
       Ill. 2d at 472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court
       denies such a motion, the petition advances to the third stage, wherein the court holds a
       hearing at which the defendant may present evidence in support of his or her petition.
       Pendleton, 223 Ill. 2d at 472-73, 861 N.E.2d at 1008.
¶ 14        At both the second and third stages of the postconviction proceedings, “the defendant
       bears the burden of making a substantial showing of a constitutional violation.” Pendleton,
       223 Ill. 2d at 473, 861 N.E.2d at 1008. Additionally, it is at this stage where the court makes
       fact-finding and credibility determinations. People v. Marshall, 375 Ill. App. 3d 670, 674,


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       873 N.E.2d 978, 982 (2007). Thus, when the trial court denies a defendant’s postconviction
       petition following an evidentiary hearing, we review for manifest error. People v. Johnson,
       206 Ill. 2d 348, 357, 794 N.E.2d 294, 301 (2002). “Manifest error is that which is ‘clearly
       evident, plain, and indisputable.’ ” Johnson, 206 Ill. 2d at 360, 794 N.E.2d at 303 (quoting
       People v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997)). Additionally, we point
       out this court is not bound by the trial court’s reasoning for its judgment and can affirm the
       trial court’s judgment on any ground in the record regardless of whether the trial court relied
       on it. People v. Durgan, 281 Ill. App. 3d 863, 867, 667 N.E.2d 730, 733 (1996).

¶ 15                                         A. Shackling
¶ 16        Defendant asserts the trial court erred by refusing his requests to remove his handcuffs
       at the beginning of the evidentiary hearing and when he testified. Specifically, he asserts the
       trial court misapplied People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977), by relying on
       factors not supported by the record and factors that are irrelevant to a Boose analysis. The
       State disagrees and notes Illinois Supreme Court Rule 430 (eff. July 1, 2010), which
       addresses the use of restraints, is limited to trial proceedings in which a defendant’s guilt or
       innocence is determined and a similar rule does not exist for postconviction proceedings. We
       first address the issue of Boose’s applicability to postconviction proceedings. Since that issue
       presents a question of law, our review is de novo. See People v. Leach, 2012 IL 111534, ¶ 64,
       980 N.E.2d 570.
¶ 17        In Boose, 66 Ill. 2d at 265, 362 N.E.2d at 305, our supreme court recognized the
       shackling of an accused should be avoided if possible because “(1) it tends to prejudice the
       jury against the accused; (2) it restricts his ability to assist his counsel during trial; and (3)
       it offends the dignity of the judicial process.” The supreme court noted most courts had
       found an accused should never be in restraints in the jury’s presence absent a showing of a
       manifest need for the restraints. Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at 305; see also Deck
       v. Missouri, 544 U.S. 622, 626-27 (2005) (noting the law has long forbidden the routine use
       of visible shackles during the guilt phase except when special need is shown). Such a need
       exists if (1) the defendant may try to escape, (2) the defendant may pose a threat to the people
       in the courtroom, or (3) it is necessary to maintain order during the trial. Boose, 66 Ill. 2d at
       266, 362 N.E.2d at 305. The Boose court held the determination of whether restraints are
       necessary rests within the trial court’s discretion and set forth a list of factors the trial court
       should consider when making its determination. Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at
       305-06. It also required that, outside the jury’s presence, the trial court give the defendant’s
       attorney an opportunity to present reasons why the defendant should not be shackled and then
       state for the record the court’s reasons for its determination on the use of restraints. Boose,
       66 Ill. 2d at 266, 362 N.E.2d at 305. Moreover, the Boose court rejected the State’s argument
       the standards addressing shackling of an accused during a trial to determine guilt or
       innocence should not be applied to a pretrial competency hearing. Boose, 66 Ill. 2d at 268,
       362 N.E.2d at 306.
¶ 18        Over time, our supreme court has expanded the Boose decision to other proceedings and
       types of restraints. In In re Staley, 67 Ill. 2d 33, 38, 364 N.E.2d 72, 73-74 (1977), the


                                                  -5-
       supreme court held Boose also applied to bench trials. The court explained the presumption
       of innocence is central to the criminal justice system and the use of shackles without clear
       cause undermines the presumption’s value and protection by requiring an accused to stand
       in a courtroom in restraints while he is being judged. Staley, 67 Ill. 2d at 37, 364 N.E.2d at
       73. The Staley court also mentioned the use of restraints hindered the accused’s ability to
       cooperate with his attorney and assist in his defense. Staley, 67 Ill. 2d at 37, 364 N.E.2d at
       73. Applying its reasoning in Staley, our supreme court later found the Boose holding applied
       to an electronic stun belt worn under the defendant’s clothing at trial. People v. Allen, 222
       Ill. 2d 340, 347, 856 N.E.2d 349, 353 (2006).
¶ 19        In 2010, the supreme court enacted Rule 430, which addresses the trial of an incarcerated
       defendant. In that rule, the supreme court limited the determination required by Boose “to
       trial proceedings in which the defendant’s innocence or guilt is to be determined, and does
       not apply to bond hearings or other instances where the defendant may be required to appear
       before the court prior to a trial being commenced.” Ill. S. Ct. R. 430 (eff. July 1, 2010). Thus,
       while the supreme court stated in its comments to Rule 430 that the rule codified Boose and
       Allen (Ill. S. Ct. R. 430, Commentary (adopted Mar. 22, 2010)), a conflict exists with the
       Boose finding its determination applied to pretrial competency hearings and the language of
       the rule.
¶ 20        The United States Supreme Court has also addressed the issue. Defendant cites language
       from Holbrook v. Flynn, 475 U.S. 560, 568 (1986), and Illinois v. Allen, 397 U.S. 337, 344
       (1970), both of which discussed the strong disapproval of shackling and restraints during a
       jury trial. Further, in Deck, 544 U.S. at 633, the Supreme Court held courts cannot routinely
       place defendants in physical restraints visible to the jury during the penalty phase of a capital
       proceeding. The Court noted the three fundamental legal principles which militate against
       the routine use of visible shackles during the guilt phase of a criminal trial apply with equal
       force to the penalty phase of a capital proceeding. Deck, 544 U.S. at 630-32. As to the first
       principle, the Deck Court recognized the jury was no longer deciding between guilt and
       innocence in the penalty phase of a capital trial but found deciding between life and death
       was just as important as guilt and innocence. Deck, 544 U.S. at 632. Regarding the second
       principle, the Deck Court explained the use of physical restraints interferes with the
       defendant’s ability to communicate with counsel and participate in his own defense. Deck,
       544 U.S. at 631. Further, the restraints generally tend to prejudicially affect the defendant’s
       constitutional rights by imposing pain, confusion, and embarrassment. Deck, 544 U.S. at 631.
       With regard to the final principle, the Supreme Court noted the shackling of defendants in
       the jury’s presence undermines the courtroom’s formal dignity, which includes the respectful
       treatment of defendants and reflects the importance of the matter at issue, i.e., the
       “deprivation of an individual’s liberty through criminal punishment.” Deck, 544 U.S. at 631.
       Moreover, the courtroom’s dignity also inspires confidence in the judicial system and affects
       the behavior of the “public whose demands for justice our courts seek to serve.” Deck, 544
       U.S. at 631.
¶ 21        Additionally, defendant notes the Third District’s decision in People v. Rippatoe, 408 Ill.
       App. 3d 1061, 1066-67, 945 N.E.2d 132, 137 (2011), which held a court errs when it permits
       a defendant to be shackled at any point in a criminal proceeding unless the court has

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       conducted a hearing in accordance with Boose. In support of that holding, the Third District
       cited Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at 305, and Allen, 222 Ill. 2d at 367, 856 N.E.2d
       at 364, both of which addressed the use of restraints in the presence of a jury but did not
       discuss the use of restraints at all criminal proceedings. See Rippatoe, 408 Ill. App. 3d at
       1067, 945 N.E.2d at 137. Since the defendant in Rippatoe failed to preserve the restraint
       issue for appellate review, the Third District went on to address plain error. Rippatoe, 408
       Ill. App. 3d at 1066-67, 945 N.E.2d at 137-38. It found plain error, noting the integrity of the
       judicial process was greatly demeaned when defendant appeared pro se, took an oath,
       testified, questioned witnesses, and presented his arguments to the court while shackled
       without considering the need for the shackles. Rippatoe, 408 Ill. App. 3d at 1068, 945 N.E.2d
       at 138. It also found defendant’s ability to act on his own behalf was likely severely
       diminished. Rippatoe, 408 Ill. App. 3d at 1068, 945 N.E.2d at 138.
¶ 22        In In re Mark P., 402 Ill. App. 3d 173, 177, 932 N.E.2d 481, 485 (2010), also cited by
       defendant, the Second District held the trial court should have exercised its discretion in
       determining whether the defendant should have been restrained at an involuntary
       commitment hearing and had some factual basis for the restraints other than they would have
       no effect on the court’s judgment.
¶ 23        After reviewing the relevant case law on shackling, we turn to the nature of
       postconviction proceedings. The Postconviction Act provides a defendant with a collateral
       mechanism to challenge his or her conviction or sentence for violations of federal or state
       constitutional rights. People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511, 518 (2004). “In
       a postconviction proceeding, the circuit court does not redetermine a defendant’s guilt or
       innocence, but instead examines constitutional issues which escaped earlier review.” Greer,
       212 Ill. 2d at 203, 817 N.E.2d at 518. Our supreme court has emphasized postconviction
       procedures are a review of a prior proceeding that resulted in a defendant’s conviction
       regardless of whether evidence is introduced concerning matters outside the record. Greer,
       212 Ill. 2d at 203, 817 N.E.2d at 518.
¶ 24        Moreover, the right to counsel in postconviction proceedings is a statutory right rather
       than constitutional, and the Postconviction Act does not provide for appointment of counsel
       unless the defendant’s petition survives the first stage of postconviction proceedings. Greer,
       212 Ill. 2d at 203, 817 N.E.2d at 518-19. If counsel is appointed, a defendant is only entitled
       to a reasonable level of assistance. Greer, 212 Ill. 2d at 204, 817 N.E.2d at 519. Moreover,
       counsel may move to withdraw from representation if the defendant’s issues are meritless.
       Greer, 212 Ill. 2d at 211, 817 N.E.2d at 523. Accordingly, an evidentiary hearing in a
       postconviction proceedings does not involve a jury, the presumption of innocence,
       sentencing, or the constitutional right to counsel.
¶ 25        With postconviction proceedings, the defendants are convicted criminals seeking review
       of possible constitutional errors in their trials and/or sentences. The constitutional concerns
       at issue in the trial and sentencing phases of criminal proceedings are not present in
       postconviction proceedings. Further, the dignity of the courtroom is not demeaned by a
       convicted criminal’s appearance in shackles when he or she seeks review of his or her trial
       and/or sentence because the defendant’s guilt and sentence have already been determined.
       We strongly disagree with defendant that restraints during postconviction proceedings make

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       a mockery of postconviction proceedings, which are review proceedings after a conviction.
       Moreover, for the same reason, we disagree with Rippatoe that the dignity of the courtroom
       is demeaned by a pro se defendant’s representation of himself at a proceeding after his trial,
       especially since the defendant there did not even express an issue with the restraints at the
       hearing. Additionally, our supreme court has specifically limited the Boose determination in
       Rule 430 to proceedings involving the determination of guilt or innocence and chose not to
       make a similar rule for postconviction proceedings. Accordingly, we find the presumption
       that shackling is improper until manifest need is shown and the required determination of
       manifest need established by Boose and its prodigy does not apply to postconviction
       proceedings.
¶ 26        Turning to the facts of this case, defendant’s counsel twice requested the unshackling of
       defendant. While Boose’s presumption against shackling does not apply to postconviction
       proceedings, the matter of shackling still remains within the trial court’s discretion when a
       defendant has raised the issue with the trial court. See Boose, 66 Ill. 2d at 266, 362 N.E.2d
       at 305; Mark P., 402 Ill. App. 3d at 177, 932 N.E.2d at 485. Thus, we will not disturb the
       trial court’s decision to not remove defendant’s shackles at the evidentiary hearing absent an
       abuse of discretion. See People v. Starks, 2012 IL App (2d) 110273, ¶ 20, 966 N.E.2d 347.
¶ 27        At the beginning of the evidentiary hearing, defense counsel requested defendant’s
       shackles be removed to allow defendant to more easily (1) take notes, (2) pass notes to
       counsel, and (3) participate throughout the course of the hearing. When defendant was called
       to testify, counsel requested the shackles be removed while defendant testified. When the
       shackling issue was first raised, the State objected arguing it was not in the interest of
       courtroom security to have defendant unshackled based on defendant’s behavior at trial, his
       refusal to attend trial, and his attempts to put his head through a wall.
¶ 28        After both of defendant’s requests to be unshackled, the trial court expressly addressed
       the relevant considerations, applicable case law, and Rule 430 in denying defendant’s
       requests. The court noted that, while restrained, defendant could walk freely and could raise
       his hand sufficiently to take the oath. It found defendant was not encumbered in any way by
       the restraints. The court also stated the restraints would not affect its decision because it
       routinely saw people in shackles and often did not even notice them. Moreover, the court
       voiced security concerns because the room had four exits and only one guard. Two of the
       exits led to unsecured staff areas and one to the public area of the courthouse. Other people
       were also present in the courtroom. Additionally, the court explained defendant posed a
       safety risk to the people in the courtroom and a risk of disruption to the order of the
       courtroom. Specifically, it noted defendant had banged his head against a wall in the past and
       had a history of being disruptive in the courtroom and difficult in the jail.
¶ 29        Defendant contends the record does not indicate defendant was disruptive at his trial.
       However, the record discloses that, on the day of trial before jury selection, defendant first
       objected to appointed counsel representing him and then stated he did not want to be in the
       courtroom for trial. The trial court explained defendant’s rights and tried to talk to defendant
       about his decisions. When the court stated defendant had the right to leave, the court
       documented that defendant stood up, moved toward the holding cell, and then the court heard
       defendant “physically lashing out as he’s being taken into the holding cell and striking

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       something.” The court also noted it appeared defendant was becoming more and more
       disruptive in the courtroom before he left. It explained defendant appeared to be making
       dramatic gestures, putting his head on the table, appearing to cry, and becoming more and
       more agitated. Thus, we disagree the record does not show defendant’s prior disruption in
       the courtroom.
¶ 30       The trial court clearly considered all of the relevant circumstances at the evidentiary
       hearing when it denied defendant’s request to remove its shackles, and thus we find the trial
       court did not abuse its discretion.

¶ 31                          B. Ineffective Assistance of Trial Counsel
¶ 32       Defendant also argues the trial court erred by finding his claims trial counsel was
       ineffective for failing to file (1) a motion to suppress and (2) and a motion to reconsider
       defendant’s sentence were barred by the doctrines of res judicata and forfeiture, respectively.
       The State concedes the court’s ruling on the motion to suppress was erroneous and addresses
       the motion-to-reconsider claim on the merits. As to both issues, the State contends we may
       affirm their denial because defendant failed to make a substantial showing of a constitutional
       error at the evidentiary hearing.
¶ 33       This court analyzes ineffective-assistance-of-counsel claims under the standard set forth
       in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708
       N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a defendant must prove (1)
       his counsel’s performance failed to meet an objective standard of competence and (2)
       counsel’s deficient performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at
       93, 708 N.E.2d at 1163-64.
¶ 34       To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel
       made errors so serious and counsel’s performance was so deficient that counsel was not
       functioning as “counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI).
       Strickland, 466 U.S. at 687. Further, the defendant must overcome the strong presumption
       the challenged action or inaction could have been the product of sound trial strategy. Evans,
       186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice prong, defendant must show
       “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.” Strickland, 466 U.S. at 687. Stated differently, the defendant must prove
       a reasonable probability exists that, but for counsel’s unprofessional errors, the proceeding’s
       result would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-64. The
       Strickland Court noted that, when a case is more easily decided on the ground of lack of
       sufficient prejudice, rather than that counsel’s representation was constitutionally deficient,
       the court should do so. Strickland, 466 U.S. at 697.

¶ 35                                    1. Motion To Suppress
¶ 36       Defendant contends this court cannot affirm the trial court’s denial of his claim of
       ineffective assistance of trial counsel for counsel’s failure to file a motion to suppress based
       on the State’s argument. We disagree.


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¶ 37        First, we note defendant’s petition moved to the third stage for an evidentiary hearing
       based on the State’s failure to file a responsive pleading. Thus, the trial court never analyzed
       whether defendant’s amended postconviction petition made a substantial showing of a
       constitutional error. Regardless, on appeal, the State is asserting defendant failed to make a
       substantial showing of constitutional error at the third stage of the postconviction
       proceedings, not the second. The State’s argument is based on the evidence at the hearing
       and on the arguments in defendant’s postconviction petitions.
¶ 38        As we stated on direct appeal, counsel’s determination of whether to file a motion to
       suppress is entitled to great deference because it is a matter of trial strategy. Kelly, slip order
       at 22 (citing People v. Bew, 228 Ill. 2d 122, 128, 886 N.E.2d 1002, 1006 (2008)). “To
       successfully establish ineffective assistance of counsel based on counsel’s failure to file a
       motion to suppress evidence, the defendant must demonstrate a reasonable probability exists
       that both (1) the trial court would have granted the motion and (2) the trial’s outcome would
       have been different had the court suppressed the evidence.” Kelly, slip order at 22 (citing
       People v. Givens, 384 Ill. App. 3d 101, 108, 892 N.E.2d 1098, 1106 (2008)).
¶ 39        In his pro se postconviction petition, defendant alleged trial counsel was ineffective for
       failing to move to suppress the evidence and included the portion of his appellant brief on
       direct appeal that raised the issue. In his amended postconviction petition, defendant asserted
       counsel should have filed a motion to suppress the drugs found in the hotel room where the
       search of the hotel room was improper because (1) the police officers lacked a valid reason
       for searching the hotel room and (2) the search was the result of an illegal search warrant.
¶ 40        At the evidentiary hearing, defendant testified he first mentioned the possibility of a
       motion to suppress after trial counsel explained the police had the right to call the canine
       unit. Trial counsel responded she did not think any grounds supported filing a motion to
       suppress. Thereafter, defendant mentioned the possibility of a motion to suppress every time
       he talked with counsel and noted he told counsel he did not think the police had probable
       cause. Defendant did not present the testimony of Darion Banigo, who was present in the
       hotel room when the police sought to search it, or any of the police officers involved in the
       search of defendant’s hotel room. The State presented the testimony of defendant’s trial
       counsel, Miller-Jones. She testified defendant wanted her to file a motion to suppress, and
       she informed him no meritorious grounds existed for filing one. Miller-Jones testified that,
       based upon her experience as an attorney, a valid reason for filing a motion to suppress did
       not exist for the circumstances and facts of defendant’s case. Thus, this court essentially has
       the same record before it as we did on direct appeal.
¶ 41        On direct appeal, we set forth a thorough explanation of the case law on this issue, noted
       the witnesses whose testimony would be relevant at an evidentiary hearing, and explained
       the need for a factual hearing on this specific issue. Kelly, slip order at 24-26. At the
       evidentiary hearing, defendant declined to present any evidence on the issue beyond his
       testimony that he asked counsel to file a motion to suppress. No credibility determination
       exists on the legality of the search of the hotel room because defendant presented no live
       testimony on it at the evidentiary hearing. Moreover, postconviction counsel did not address
       any of the relevant case law noted in our order on direct appeal. Accordingly, defendant, who
       had the burden of proof, failed to make a substantial showing of an ineffective-assistance-of-

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       counsel claim based on counsel’s failure to file a motion to suppress. Thus, we find the trial
       court’s denial of this issue was proper.

¶ 42                                   2. Motion To Reconsider
¶ 43        The State argues defendant has forfeited his argument challenging the trial court’s denial
       of his ineffective-assistance-of-counsel claim based on counsel’s failure to file a motion to
       reconsider his sentence by failing to cite legal authority in support of the claim. See Ill. S. Ct.
       R. 341(h)(7) (eff. Sept. 1, 2006). Defendant did cite several cases at the beginning of his
       argument on this issue, and thus we find defendant has not forfeited the issue.
¶ 44        In his pro se postconviction petition, defendant argued trial counsel should have filed a
       motion to reconsider to argue his 24-year sentence was greater than the statutory maximum
       for a Class 1 felony and excessive. When a defendant has raised an ineffective-assistance-of-
       counsel claim based on counsel’s failure to file a motion to reconsider, this court has first
       addressed the prejudice prong by determining if the alleged errors that should have been
       raised in the petition have any merit. See People v. Price, 2011 IL App (4th) 100311, ¶¶ 36-
       38, 958 N.E.2d 341.
¶ 45        Defendant was found guilty of unlawful possession with the intent to deliver a controlled
       substance for possessing 1 gram or more but less than 15 grams of a substance containing
       heroin, a Class 1 felony. 720 ILCS 570/401(c)(1) (West Supp. 2007). The sentencing range
       for a Class 1 felony is 4 to 15 years. 730 ILCS 5/5-8-1(a)(4) (West 2006). At sentencing, the
       trial court found defendant was subject to section 408(a) of the Illinois Controlled Substances
       Act (720 ILCS 570/408(a) (West 2006)), which provides “[a]ny person convicted of a second
       or subsequent offense under this Act may be sentenced to imprisonment for a term up to
       twice the maximum term otherwise authorized, fined an amount up to twice that otherwise
       authorized, or both.” Defendant’s presentence investigation report shows defendant had four
       prior convictions for unlawful possession of a controlled substance and several other drug
       offenses. Thus, the court properly found section 408(a) applied to defendant, which gave
       defendant a sentencing range of 4 to 30 years’ imprisonment. Accordingly, defendant’s 24-
       year sentence was within the statutory range.
¶ 46        As to defendant’s excessive-sentence claim, this court has explained appellate review of
       a defendant’s sentence as follows:
                “A trial court’s sentencing determination must be based on the particular
            circumstances of each case, including factors such as the defendant’s credibility,
            demeanor, general moral character, mentality, social environment, habits, and age.
            [Citations.] Generally, the trial court is in a better position than a court of review to
            determine an appropriate sentence based upon the particular facts and circumstances of
            each individual case. [Citation.] Thus, the trial court is the proper forum for the
            determination of a defendant’s sentence, and the trial court’s decisions in regard to
            sentencing are entitled to great deference and weight. [Citation.] Absent an abuse of
            discretion by the trial court, a sentence may not be altered upon review. [Citation.] If the
            sentence imposed is within the statutory range, it will not be deemed excessive unless it
            is greatly at variance with the spirit and purpose of the law or is manifestly

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           disproportionate to the nature of the offense.” (Internal quotation marks omitted.) Price,
           2011 IL App (4th) 100311, ¶ 36, 958 N.E.2d 341 (quoting People v. Hensley, 354 Ill.
           App. 3d 224, 234-35, 819 N.E.2d 1274, 1284 (2004)).
¶ 47       As stated, defendant’s sentence falls within the applicable sentencing range. Defendant
       had a lengthy criminal history that included eight prior offenses related to illegal substances.
       He had been sentenced to the Department of Corrections on five prior occasions and had
       never successfully completed a community-based sentence. The record shows the court
       considered all of the relevant circumstances. Accordingly, the trial court did not abuse its
       discretion in sentencing defendant to 24 years’ imprisonment.
¶ 48        Since defendant failed to make a substantial showing of prejudice as a result of his
       counsel’s failure to file a motion to reconsider defendant’s sentence, we find defendant was
       not denied effective assistance of counsel. Thus, we conclude the trial court properly denied
       this postconviction claim.

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

¶ 51      Affirmed.




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