                                        2017 IL App (1st) 150836
                                             No. 1-15-0836
                                       Opinion filed August 1, 2017
                                                                                        Second Division


                                                  IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


                                                            )
                                                                  Appeal from the Circuit Court
                                                            )
     THE PEOPLE OF THE STATE OF ILLINOIS,                         of Cook County.
                                                            )
                                                            )
            Respondent-Appellee,
                                                            )
                                                                  No. 08 CR 11452
                                                            )
     v.
                                                            )
                                                            )
     BRANDON ZARESKI,                                             The Honorable
                                                            )
                                                                  Joseph Kazmierski,
                                                            )
            Petitioner-Appellant.                                 Judge, presiding.
                                                            )
                                                            )


            PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Neville and Pierce concurred in the judgment and opinion.

                                                   OPINION

¶1          Brandon Zareski was convicted of first degree murder for shooting Jonathan Nieves.

     Zareski hired his own counsel, Scott Frankel, to represent him on direct appeal, and we upheld

     his conviction in People v. Zareski, 2012 IL App (1st) 102102-U. Zareski again retained Frankel

     to file a postconviction petition, which the trial court dismissed at the second stage of

     proceedings. Zareski now appeals from that dismissal.

¶2          Zareski first argues that Frankel had a “per se” conflict of interest by acting as both direct

     appeal and postconviction attorney. But this situation does not fit in the restrictive category of
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     per se conflicts. Nor has Zareski shown that Frankel labored under an actual conflict of interest

     that had an adverse effect on his representation. Also, contrary to Zareski’s contention, Zareski

     has failed to make a substantial showing of a claim of actual innocence. His claim that his trial

     counsel was ineffective for failing to impeach State witnesses with photographs purporting to

     show their gang affiliations is barred by res judicata.

¶3          In addition, Zareski argues that Frankel did not provide reasonable assistance of counsel

     as postconviction attorney. This case presented us with the unusual situation of a postconviction

     attorney who was retained by the petitioner to file the initial petition—most often, a

     postconviction petition is filed pro se, and counsel is only appointed or retained at the second

     stage of proceedings. Illinois Supreme Court Rule 651 was written to address that most common

     situation, and both the rule and the cases interpreting Rule 651 do not quite fit with Frankel’s

     status. Close review of the rule and case law lead us to conclude that although Frankel was

     required to provide Zareski with a reasonable level of assistance, Rule 651 does not specifically

     apply when petitioner’s retained counsel files the initial petition. Given this, we asked the parties

     to file supplemental briefs on the standard under which we should evaluate Frankel’s assistance.

     Based on these briefs, and our own research, we conclude that we should use a Strickland-like

     standard, and under that standard we reject Zareski’s unreasonable-assistance claims.

¶4          Zareski argues that Frankel should have raised certain claims in the postconviction stage,

     or raised them differently. We reject the claim that Frankel should have argued that trial counsel

     should have cross-examined a state witness about the victim’s gun because it would not have

     benefited the defense. Zareski’s counsel on appeal has not provided a legal basis on which trial

     counsel could have moved to suppress the statements of state witnesses, so we will not say that

     Frankel should have raised this claim. Zareski cannot show that he was prejudiced by Frankel’s



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     raising claims in postconviction that were barred by res judicata. Since Zareski has not raised a

     colorable claim of actual innocence, we cannot hold that Frankel was ineffective for failing to

     make that claim “freestanding.” Finally, Zareski asserts that Frankel should have raised an

     ineffective assistance of counsel claim for his trial counsel’s failure to apprise him of the

     sentencing range, so that Zareski could make a proper waiver of his right to a second degree

     murder instruction. His assertion is without merit because a defendant does not have the right to

     decide whether he or she wants the instruction on the lesser-mitigated offense of second degree

     murder, and does not need to knowingly waive the instruction.

¶5                                          BACKGROUND

¶6                                          Trial Proceedings

¶7          At his trial, Zareski was represented by privately retained counsel.

¶8          Chicago police officer Hallinan testified that on April 15, 2008, he was on duty, driving

     his squad car north on Laramie Avenue. Shortly before midnight, he heard gunshots, and as he

     passed through the intersection of Roscoe Street and Laramie, he saw people running. Hallinan

     stopped and found a man (the victim, Jonathan Nieves) lying face down in front of the door of

     3405 North Laramie, bleeding from a large hole in the back of his head. Next to Nieves lay a

     handgun. Hallinan called for help and stayed with the body.

¶9          Police detective Edward Schak arrived and recovered the handgun. It was unloaded, and

     there were no bullets in the chamber or in the magazine. The parties stipulated that the handgun

     was a semiautomatic firearm with no ammunition, and it was inoperable because the thumb

     safety lever and firing pin were broken. Bullet fragments found at the scene did not come from

     that gun. No fingerprints were on the gun, although gunshot residue was found on Nieves’s hand.




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¶ 10          Orlando Crespo testified that he met Nieves through a mutual friend and had known him

       about a month. On April 15, 2008, he was in Nieves’s apartment using the computer. Nieves’s

       girlfriend, Krystle LaBombard, was in another room with her children. Crespo heard a

       commotion outside and people talking; Nieves went to the window, and Crespo followed,

       looking over Nieves’s shoulder. The window faced the corner of Roscoe and Laramie. Crespo

       saw a man (whom he identified as Zareski) standing on the corner; the man was arguing about

       “gang related issues” with Nieves. Zareski flashed gang signs at Nieves, and Nieves yelled back

       “deuce killer.” Nieves told Crespo “that’s Brandon down there that used to be a four.”

¶ 11          Nieves went downstairs. Crespo followed. When Crespo got outside, he saw Zareski

       standing on the corner and firing a handgun in Crespo’s direction. Crespo heard between four

       and six shots. Crespo had never seen Zareski before that night. The shooter was light-skinned,

       but Crespo could not tell his nationality, and wearing a white or light gray sweater with different

       colored patches. He had old English numbers (a 9, 6, or 4) tattooed on his hands. Crespo saw a

       charcoal gray Malibu, with its headlights out, moving east on Roscoe. He told police that two

       people were in the front seat and at least one in the back seat, and the driver stuck his left arm out

       the window and put up four fingers (as a gang sign for the Four Corner Hustlers).

¶ 12          Crespo saw Nieves trying to run back to the apartment building door. Crespo started to

       run upstairs but then saw Nieves lying on the ground. Crespo did not see where Zareski went

       after the shooting. Crespo went to LaBombard and told her that Nieves had been shot;

       LaBombard began to cry and pulled the blinds to see outside. Crespo did not see Nieves with the

       gun until after the shooting and had not seen Nieves pick up a gun before leaving the apartment.

¶ 13          The police arrived quickly. Crespo gave a written statement, and a few hours later, he

       identified Zareski in a photo array. On May 21, 2008, Crespo identified Zareski at a lineup.


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       Crespo also testified at the grand jury. He admitted that in his previous statements, he had not

       said that Zareski had fired the gun at him or that he had gone outside the building.

¶ 14          Crespo was asked whether Nieves’s nickname, “Pun,” was gang-related and short for

       “Punisher.” Crespo denied this but said that the commotion outside the building was gang-related

       “from my knowledge, yeah. I don’t gang bang.”

¶ 15          The parties stipulated that Crespo previously stated that Nieves had been arguing with

       Zareski from the window, then Nieves stated that he would “fuck with him” before rushing out

       of the apartment. Crespo testified that he did not remember Nieves saying this.

¶ 16          Krystle LaBombard testified that she lived in the apartment with Nieves and her children.

       That evening, LaBombard awoke in bed when she heard noises and people talking outside, the

       sound of someone going downstairs, then two gunshots. LaBombard ran out of the bedroom and

       met Crespo entering the apartment; Crespo told her that Nieves was downstairs. LaBombard

       pulled the blinds off the front window, which looked out on Laramie, and saw someone (whom

       she identified as Zareski) aiming a gun towards the building’s front door. She saw sparks coming

       from the gun. The shooter was wearing a white hooded sweatshirt with designs on it. LaBombard

       also saw a dark colored car driving east on Roscoe with its lights off. She saw Nieves on the

       ground, and Zareski going towards the car and getting inside.

¶ 17          LaBombard went downstairs and was met by police; she told them that “Grumpy” was

       the shooter. She saw the gun on the ground, but told police that she had never seen that gun

       before and had not seen Nieves with a gun that day. She had previously heard Nieves talk about

       the shooter driving near their home. A few hours later, she identified Zareski in a photo array,

       and identified him in a lineup. LaBombard admitted that she had told the police that she had

       heard only one gunshot.


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¶ 18          Police also testified that a gray Chevrolet Malibu was registered to Zareski’s home

       address and was found in the garage. The parties stipulated that the Malibu was registered to

       Zareski’s parents. Police also testified that LaBombard told them the shooter’s nickname was

       “Grumpy” and police constructed the photo array based on that nickname.

¶ 19          At the jury instruction conference, the State prepared an instruction on second degree

       murder, and the trial court offered to give it. Zareski’s trial counsel stated that he did not want a

       second degree instruction, and the trial court asked if he had discussed it with Zareski. Counsel

       stated that he had discussed it, but would do so again. After an off-the-record conversation,

       counsel stated that he again had discussed it with Zareski and Zareski did not want the

       instruction. The trial court addressed Zareski directly: “I want to make sure you know what that

       means is under certain circumstances based upon the evidence that you ask and your attorney ask

       for a second-degree instruction, I can give it, but I’m not going to give it unless you ask for it. Is

       it your decision not to ask for the second-degree instruction today?” Zareski replied “yes.”

¶ 20          The jury convicted Zareski of first degree murder, and the trial court sentenced Zareski to

       24 years of imprisonment.

¶ 21                        Zareski Hires New Counsel for Post-Trial Proceedings

¶ 22          Zareski retained new counsel, Scott Frankel, to represent him during the posttrial

       proceedings. In Zareski’s posttrial motion, Frankel raised several claims that trial counsel had

       provided ineffective assistance. The trial court denied this motion.

¶ 23          Frankel represented Zareski on direct appeal and raised several claims of ineffective

       assistance of counsel: (i) trial counsel should not have introduced prior consistent statements

       from LaBombard or testimony helpful to the State, (ii) trial counsel failed to question Crespo and

       LaBombard about their gang affiliations or introduce social media photographs of them showing


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       gang signs, (iii) trial counsel failed to interview and present two potential defense witnesses, and

       (iv) trial counsel conceded, in response to a jury question, that Zareski was the shooter. Zareski,

       2012 IL App (1st) 102102-U, ¶¶ 50-54. The appellate court assumed for the sake of argument

       that these errors had been committed but rejected the claims: “we remain unconvinced that the

       presentation of this additional evidence would have created the requisite ‘reasonable probability’

       that the outcome of the trial would have been different.” Id. ¶ 55.

¶ 24          In support of his additional argument that the evidence was insufficient to convict,

       Frankel argued that both Crespo and LaBombard were not credible due to their gang affiliations,

       proven by their social media photographs. But, the appellate court would not address this

       contention because those photographs had not been part of the trial record. Id. ¶ 32. The

       appellate court affirmed Zareski’s conviction.

¶ 25                  Frankel Continues to Represent Zareski in Postconviction Proceedings

¶ 26          In March 2013, Frankel filed a postconviction petition (later amended and

       supplemented). Combined, the petitions raised a number of claims that Zareski’s counsel had

       provided ineffective assistance and that Zareski was actually innocent of the crime. First, his trial

       counsel should have moved to suppress the lineups at which Crespo and LaBombard identified

       Zareski. Second, he should have requested the second degree murder instruction. Third, he

       should have cross-examined Crespo regarding Nieves’s gun: Crespo had told the State that

       before the day of the shooting, Nieves had shown Crespo an inoperable gun. Fourth, he should

       have located and interviewed potential witness Mayra Mandujano, whose affidavit stated that she

       witnessed the shooting from her own apartment and saw Nieves firing a gun.




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¶ 27           The postconviction petitions also included some claims that had been previously raised

       on direct appeal. And, the petitions argued that Mandujano’s potential testimony would have

       shown that Zareski was actually innocent of the crime.

¶ 28           The State moved to dismiss the petition, which the trial court granted, holding that (i) the

       claim regarding the gang photos was barred by res judicata; (ii) the petition offered no legal

       basis on which his counsel could have moved to suppress the lineups, (iii) the second degree

       murder instruction was a strategic decision made by his counsel, (iv) Mandujano’s potential

       evidence was not conclusive enough to show actual innocence, and (v) in any event, the actual

       innocence claim was not “freestanding.”

¶ 29                                        STANDARD OF REVIEW

¶ 30           We review the trial court’s dismissal of a postconviction petition at the second stage

       de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 31                                                ANALYSIS

¶ 32           Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)), a

       convicted defendant may assert a substantial denial of his or her constitutional rights in the

       proceedings leading to the conviction. People v. Roman, 2016 IL App (1st) 141740, ¶ 11. At the

       first stage, the petition must set forth the “gist” of a constitutional claim; if it does so, the petition

       advances to the second stage, where the State may answer it or move to dismiss. Id. ¶ 12. If the

       petition makes a “substantial showing” that a constitutional violation occurred, the petition

       moves to the third stage, where the trial court may hold an evidentiary hearing. Id.

¶ 33                                 Did Frankel Have a Conflict of Interest?

¶ 34           Zareski first claims that Frankel, by serving as both direct appeal counsel and

       postconviction counsel, suffered from a disabling per se conflict of interest, and that Zareski is


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       thus entitled to automatic reversal. Alternatively, Zareski argues that Frankel suffered from an

       actual conflict of interest, and we should reverse because the conflict adversely affected

       Frankel’s performance. The State argues that Zareski forfeited the actual conflict of interest

       argument by not raising it until his reply brief, but we will address it because forfeiture binds the

       parties, and not the court. People v. McCarty, 223 Ill. 2d 109, 142 (2006).

¶ 35          Postconviction petitioners have the right to reasonable assistance from their counsel, and

       this includes the “correlative” right of conflict-free representation. People v. Hardin, 217 Ill. 2d

       289, 300 (2005). The most serious type of conflict is the per se conflict: one in which “facts

       about a defense attorney’s status *** engender, by themselves, a disabling conflict.” (Internal

       quotation marks and emphasis omitted) People v. Hernandez, 231 Ill. 2d 134, 142 (2008). If a

       per se conflict exists, the defendant is entitled to automatic reversal and need not show that the

       attorney’s performance was affected by the conflict. Id. at 143.

¶ 36          Our supreme court has identified three situations causing a per se conflict: (i) defense

       counsel has a prior or contemporaneous relationship with the victim, prosecution, or entity

       assisting the prosecution; (ii) defense counsel contemporaneously represents a prosecution

       witness; and (iii) defense counsel was a former prosecutor who had been personally involved in

       the defendant’s prosecution. People v. Taylor, 237 Ill. 2d 356, 374 (2010). Zareski asks us to add

       a fourth category: when defense counsel must argue his or her own ineffectiveness. Some courts

       have held that a per se conflict arises in that situation. See, e.g., People v. Keener, 275 Ill. App.

       3d 1, 5 (1995). But we find this contrary to logic: “[a] per se conflict of interest does not exist

       merely because a defense attorney’s competence is questioned by his [or her] client during

       posttrial proceedings.” (Internal quotation marks omitted.) People v. Perkins, 408 Ill. App. 3d




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       752, 762 (2011). The Supreme Court has deliberately limited per se conflicts to three specific

       situations.

¶ 37           People v. Lawton, 212 Ill. 2d 285 (2004), which Zareski cites at length, does not change

       our conclusion. In Lawton, the supreme court called it an “inherent” conflict of interest for an

       attorney to argue his or her own ineffectiveness. Id. at 296. But, as Perkins points out, that ruling

       was in the context of deciding whether Lawton had forfeited his ineffective assistance claim. “It

       is far from clear that the recognition of a conflict of interest in the context of forfeiture or the

       context of an attorney representing a defendant on appeal or other postjudgment proceedings,

       means that it is a constitutional per se conflict of the sort warranting automatic reversal outside

       those situations.” Perkins, 408 Ill. App. 3d at 762. The supreme court in People v. Hernandez

       certainly could have used Lawton’s holding to add another category of per se conflict, but the

       Court declined the opportunity.

¶ 38           Rather, we believe this situation is best examined as an actual conflict of interest. Instead

       of automatic reversal, Zareski must show “some specific defect in his counsel’s strategy, tactics,

       or decision making attributable to the conflict.” People v. Spreitzer, 123 Ill. 2d 1, 18 (1988);

       Taylor, 237 Ill. 2d at 380 (applying actual conflict of interest test where attorney represented

       both Taylor and codefendant). Zareski is not required to prove that the conflict contributed to his

       conviction, Spreitzer, 123 Ill. 2d at 19, but must do more than proffer “[s]peculative allegations

       and conclusory statements” to prove that Frankel’s performance was affected by the conflict.

       People v. Morales, 209 Ill. 2d 340, 349 (2004).

¶ 39           Zareski alleges that he has met the test because Frankel did not argue that direct appeal

       counsel (himself) was ineffective to overcome procedural default of some postconviction claims.

       The State, on the other hand, argues that we must look at the merits of the defaulted claim to


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       determine whether Frankel’s performance had a “specific defect.” Using a layered approach to

       review an attorney’s performance makes the most sense. For instance, when a defendant claims

       that direct appeal counsel was ineffective for failing to raise a claim, we examine the underlying

       claim to determine if that attorney’s performance was deficient. See, e.g., People v. Cole, 2012

       IL App (1st) 102499, ¶ 18. When a defendant claims that a trial attorney should have filed a

       particular motion, the reviewing court needs to determine whether the motion would have been

       meritorious before it can determine whether the attorney should have filed it. See, e.g., People v.

       Henderson, 2013 IL 114040, ¶ 15.

¶ 40          We will follow the same approach. While mindful that Zareski does not need to prove

       “prejudice” in the same sense as a regular ineffective assistance claim, we must at least look at

       the underlying claims to determine if Frankel should have raised them. Otherwise, we run the

       risk of forcing the trial court on remand to evaluate claims that have no chance of success in a

       new postconviction petition. Other courts have applied this approach in either accepting or

       rejecting actual conflict of interest claims. See, e.g., People v. Williams, 139 Ill. 2d 1, 12-14

       (1990) (rejecting claim that trial counsel should have cross-examined codefendant on particular

       issue because codefendant’s testimony on point did not undermine defendant’s position); People

       v. White, 362 Ill. App. 3d 1056, 1061 (2005) (trial counsel’s cross-examination of state witness

       showed that trial counsel who represented both defendant and codefendant “sacrifice[d]”

       defendant in favor of codefendant, who was acquitted).

¶ 41          Specifically, Zareski points to Frankel’s argument in postconviction that his trial counsel

       was ineffective for failing to cross-examine Crespo about his statement that Nieves had shown

       Crespo an inoperable gun. Zareski argues that Frankel had been ineffective on direct appeal for

       failing to raise the claim. This would have negated the forfeiture.


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¶ 42          As explained, to determine whether Frankel’s failure to do so was a “specific defect,” we

       need to examine whether this claim would have been successful on direct appeal. The answer is

       it would not have been successful. The existence of the inoperable gun, and Nieves’s access to it,

       was never in question at trial because an inoperable gun was found next to Nieves’s body. Its

       existence was testified to by police witnesses, and the parties stipulated that it was inoperable

       and that gunshot residue was on Nieves’s hand. No one testified or theorized that the handgun

       had been planted next to Nieves’s body, so there was no need to confirm that he possessed it

       before the shooting. Zareski relied heavily on the handgun’s existence in arguing that he shot

       Nieves in self-defense, but we cannot see how Crespo’s testimony was necessary or even helpful

       to that argument. Since the claim would not have succeeded on direct appeal, it cannot have been

       a “specific defect” in Frankel’s performance not to raise it.

¶ 43          Contrary to Zareski’s representation, this was the only claim that the trial court refused to

       consider because it could have been, but was not, raised on direct appeal. Thus, it was the only

       claim potentially affected by the alleged actual conflict of interest.

¶ 44          Next, we will address Zareski’s other contentions against Frankel’s performance.

¶ 45                  Did Frankel Provide “Reasonable Assistance” of Counsel in Postconviction?

¶ 46          Zareski argues that Frankel provided “unreasonable assistance” as postconviction

       counsel, in four ways: (i) he failed to argue that direct appeal counsel (himself) was ineffective

       for failing to argue that trial counsel was ineffective for failing to cross-examine Crespo about

       the gun; (ii) he failed to argue that direct appeal counsel was ineffective for failing to argue that

       trial counsel was ineffective for failing to move to suppress the lineup identifications; (iii) he

       raised several ineffective assistance claims that were barred by res judicata, as they had already

       been raised and rejected on direct appeal; and (iv) he failed to raise the Mandujano claim as a



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       “freestanding” claim of actual innocence. The State attacks these claims on their merits, but

       Zareski argues that we should not consider the merits at all. Rather, according to Zareski, we

       should look only at whether Frankel properly presented the claims, and if (as Zareski contends)

       Frankel failed to present the claims in their best light, we should automatically remand to the

       trial court without considering whether these claims would have had any chance of success in the

       trial court. While Zareski’s argument is grounded in Illinois precedent, he misinterprets its scope.

¶ 47                         Should We Consider the Merits of Zareski’s Claims?

¶ 48          First, some principles on which all agree. Under the federal constitution, defendants are

       guaranteed effective assistance of counsel at trial and on direct appeal. In extremely rare cases, if

       the attorney’s performance was particularly egregious, defendants need not show that they were

       prejudiced by the deficient performance. See United States v. Cronic, 466 U.S. 48 (1984)

       (prejudice may be presumed if counsel entirely fails to subject State’s case to meaningful

       adversarial testing); see, e.g., People v. Morris, 209 Ill. 2d 137, 187-88 (2004) (prejudice

       presumed where defense counsel conceded client’s guilt, pursued nonlegal plea for jury

       sympathy, and affirmatively introduced evidence of client’s involvement in grisly unrelated

       murder, even though trial court had previously ruled that evidence inadmissible). The Illinois

       Supreme Court has made this finding only twice. People v. Cherry, 2016 IL 118728, ¶ 27.

¶ 49          In the vast majority of cases, a defendant alleging that counsel provided ineffective

       assistance must show that his or her counsel’s performance fell below an objective standard of

       reasonableness and that there was a reasonable probability of a different outcome had counsel

       performed their duties. Id. ¶ 24 (citing Strickland v. Washington, 466 U.S. 668 (1984)). This

       Strickland standard applies to both trial and appellate counsel: to show that appellate counsel was

       ineffective for failing to raise a claim, or arguing it inadequately, the defendant must show a


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       reasonable probability that the claim would have succeeded on direct appeal if raised. Cole, 2012

       IL App (1st) 102499, ¶ 18.

¶ 50          Neither the federal nor state constitutions guarantee assistance of counsel in

       postconviction proceedings, and so we examine the performance of postconviction counsel by a

       third standard—“reasonable assistance.” This standard (though inadequately defined) is lower

       than “effective assistance” under Strickland, as postconviction proceedings are a legislative

       grant, not a constitutional entitlement. People v. Cotto, 2016 IL 119006, ¶ 29. Strictly speaking,

       a defendant is entitled to less from postconviction counsel than from direct appeal or trial

       counsel. The flip side of this principle is that it should be even more difficult for a defendant to

       prove that he or she received unreasonable assistance than to prove that he or she received

       ineffective assistance under Strickland.

¶ 51          The performance of postconviction counsel has been standardized by Illinois Supreme

       Court Rule 651. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). That rule, by its text and history,

       assumes the most common scenario—a prisoner files a pro se postconviction petition, and the

       trial court may then appoint counsel to assist the prisoner by amending the petition. Appointed

       counsel is required to consult with the petitioner to ascertain his or her contentions, examine the

       record of proceedings at trial, and make any amendments to the pro se petition that are necessary

       to adequately present the contentions. Id. Our Supreme Court has held that Rule 651 applies to

       counsel appointed or retained after a pro se petition, but not to counsel that was privately

       retained by the prisoner to file the initial petition. Cotto, 2016 IL 119006, ¶ 41; People v.

       Richmond, 188 Ill. 2d 376, 380-81 (1999) (distinguishing between counsel retained at first stage

       versus retained at second stage). Nonetheless, both appointed and privately-retained

       postconviction counsel must provide “reasonable assistance.” Cotto, 2016 IL 119006, ¶ 41.


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¶ 52           Under these principles, it should be harder for a defendant to raise and win a “reasonable

       assistance” claim after postconviction than an “ineffective assistance” claim after trial or direct

       appeal. And yet, our Supreme Court seemed to hold otherwise in People v. Suarez, 224 Ill. 2d 37

       (2007), on which Zareski principally relies. In Suarez, counsel was appointed to assist Suarez at

       the second stage of postconviction proceedings and filed a supplemental petition; however,

       counsel failed to file a certificate of compliance with Rule 651, and the record did not

       demonstrate whether counsel complied with that rule. The Illinois Supreme Court held that

       because it had not been shown whether counsel had fulfilled the duties of Rule 651, it would

       remand the case “regardless of whether the claims raised in the petition had merit.” Id. at 47.

¶ 53           Zareski uses the “regardless of merit” language of Suarez to argue that because Frankel

       failed to formulate his claims properly in the postconviction petition, Zareski is entitled to

       remand regardless of whether those claims would have had any chance of success in

       postconviction. In sum, we may not examine whether Zareski was prejudiced by Frankel’s

       failures.

¶ 54           But this would be an odd outcome. As explained, in the constitutional context, only truly

       egregious failures allow for a new trial regardless of prejudice. Under all other circumstances

       (including a direct appeal counsel’s failure to argue a claim), a defendant must prove prejudice.

       As read by Zareski, the Suarez rule equates a postconviction counsel’s failure to draft or amend

       the claim to a claim under United States v. Cronic, 466 U.S. 648 (1984). The reasonable

       assistance standard, however, is supposed to be even lower than the Strickland standard. How

       can we reconcile Suarez’s holding with the Supreme Court’s statements that defendants are

       entitled to less assistance in postconviction than on direct appeal?




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¶ 55          We believe the answer lies in Rule 651. Suarez relied on that rule (as did People v.

       Schlosser, 2012 IL App (1st) 092523, another case cited by Zareski). The real key of the Suarez

       holding was not that Suarez’s counsel had provided unreasonable assistance, but that Suarez’s

       counsel had violated a supreme court rule. That failure justified remanding “regardless of merit.”

       But Suarez does not say that this automatic-remand rule must apply to retained counsel, who are

       not guided by Rule 651 if retained at the first stage of proceedings. And, given the logic, we

       believe that the Suarez rule applies only to counsel who have been appointed or retained at the

       second stage to assist a pro se petitioner, not to retained counsel who file the first stage petition.

       If a prisoner retains counsel at the first stage, he or she is entitled to reasonable assistance, but

       not to the additional protections of Rule 651 and Suarez’s holding. (This comports with the

       State’s interest in protecting pro se prisoners over prisoners who can afford to retain their own

       counsel.)

¶ 56          So, even if Frankel should have presented or amended the claims, we will not remand

       “regardless of merit.” But that does not end the analysis.

¶ 57                              What Does “Reasonable Assistance” Mean?

¶ 58          Even without Rule 651, Zareski is entitled to “reasonable assistance,” but our precedent

       does not help us in evaluating whether Frankel, as retained counsel, provided it. Our supreme

       court has never explicitly stated a standard, as it has for evaluating effective assistance under

       Strickland. So, we asked the parties to submit supplemental briefing on this issue. The State

       suggests that we should use a Strickland-like analysis for these claims by presuming the

       competence of postconviction counsel and requiring that the petitioner show prejudice. Zareski

       argues that we should evaluate reasonable assistance in tandem with Rule 651’s requirements—




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       but we have already explained that the rule, by its text and interpretations, does not apply to

       counsel like Frankel who were retained at the first stage.

¶ 59          We find a Strickland-like analysis is the appropriate standard to use for reasonable

       assistance claims as well. It requires an evaluation of prejudice, appropriate to our analysis of

       Suarez. This would prevent pointless remands to trial courts for repeated evaluation of claims

       that have no chance of success. It is well-established within Illinois criminal law, familiar to both

       the courts and attorneys. It has been used to evaluate counsel in other Illinois non-criminal

       proceedings, such as involuntary commitment or parental rights terminations. See In re

       Carmody, 274 Ill. App. 3d 46, 57 (1995). And unlike Rule 651(c), whose text refers only to

       duties undertaken at the second stage of proceedings, a Strickland-like analysis also could be

       used if a postconviction petitioner alleged that his or her counsel provided unreasonable

       assistance at the third stage of proceedings (the evidentiary hearing).

¶ 60          A number of states use the Strickland standard to evaluate postconviction counsel. See

       Silva v. People, 156 P.3d 1164 (Colo. 2007) (en banc); Iovieno v. Commissioner of Correction,

       699 A.2d 1003, 1011-12 (Conn. 1997); Stovall v. State, 800 A.2d 31, 38 (Md. Ct. Spec. App.

       2002); Johnson v. State, 681 N.W.2d 769, 776-77 (N.D.. 2004); Jackson v. Weber, 637 N.W.2d

       19, 23 (S.D. 2001); Menzies v. Galetka, 150 P.3d 480, 511 (Utah 2006). Still more states use a

       standard bearing a strong resemblance to Strickland, without explicitly citing the case. See

       Grinols v. State, 10 P.3d 600, 619-20 (Alaska Ct. App. 2000) (claim that postconviction counsel

       was ineffective must show incompetence by counsel, that omitted legal issue is meritorious, and

       reasonable possibility of different outcome at trial); Whitsel v. State, 525 N.W.2d 860, 865 (Iowa

       1994) (to show ineffectiveness of postconviction counsel, petitioner must show prejudice from

       counsel’s failures); Robertson v. State, 201 P.3d 691 (Kan. 2009) (to show incompetence of


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       collateral attack counsel, must show prejudice); Commonwealth v. Priovolos, 715 A.2d 420, 422

       (Pa.. 1998) (to determine whether postconviction counsel was ineffective, must examine merits

       of underlying claim). (There are also a number of states where postconviction petitioners have no

       right whatsoever to a particular level of assistance from postconviction counsel. See, e.g.,

       Murphy v. State, 327 P.3d 365 (Idaho 2014).) The takeaway from all these jurisdictions is that, in

       evaluating the performance of postconviction counsel, whether the petitioner was prejudiced (at

       a minimum) should be part of the inquiry.

¶ 61           Thus, contrary to Zareski’s argument, when he argues that Frankel provided unreasonable

       assistance in failing to present a particular claim (either outright or through ineffective assistance

       of direct appeal counsel), we will examine not just whether Frankel should have presented or

       amended the claims, but also whether Frankel’s failures caused prejudice. We will follow

       Strickland’s familiar standard to do so. If we find that the potential claim had no merit, Zareski

       cannot receive postconviction relief on that claim, regardless of whether Frankel should have

       presented it earlier, better, or at all.

¶ 62                                      Failure to Cross-Examine Crespo

¶ 63           This claim fails for the same reason already discussed—we cannot conceive of how

       Zareski would have benefited from cross-examining Crespo about his statement that he had seen

       Nieves with a handgun at some point before the shooting. The existence of the handgun was not

       in question and did not need to be proven through that statement.

¶ 64                            Failure to Move to Suppress Lineup Identifications

¶ 65           Next, Zareski argues that Frankel should have argued in postconviction that he was

       ineffective on direct appeal for failing to argue that his trial counsel should have moved to




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       suppress the lineup identifications made by Crespo and LaBombard. The trial court rejected this

       claim on the merits.

¶ 66          Counsel on this appeal has not provided a legal basis that trial counsel could have used

       for that suppression motion. While trial counsel might have benefited from questioning the

       witnesses about the lineups before trial, he would not have been allowed to do so unless he could

       have made some legal argument as to why those lineups were unconstitutional. Further, Zareski

       simply argues that this claim could have been included in his direct appeal, but does not explain

       why that claim would have had success. Without that information, we will not say that Frankel

       provided unreasonable assistance for failing to raise this claim.

¶ 67                                 Raising Claims Barred by Res Judicata

¶ 68          Zareski further claims that Frankel raised several ineffective-assistance claims in the

       postconviction petition that were barred by res judicata because they had already been raised and

       ruled on during direct appeal. Raising these claims was certainly a pointless exercise by Frankel,

       but Zareski has not explained how this action causes him prejudice, nor can we think of a reason.

¶ 69                          Failure to Raise Freestanding Actual Innocence Claim

¶ 70          Zareski argues that Frankel should have raised a freestanding actual innocence claim

       based on Marya Mandujano’s affidavit (which claimed that she had witnessed the shooting and

       had seen Nieves firing a gun). Frankel raised an actual innocence claim based on that affidavit,

       but also argued that trial counsel was ineffective for failing to find and present Mandujano’s

       testimony.

¶ 71          Frankel could not pursue both a claim that Mandujano’s affidavit established actual

       innocence, and that trial counsel was ineffective for failing to find Mandujano. People v. Hobley,

       182 Ill. 2d 404, 443-44 (1998). Zareski asserts that Frankel should have chosen the actual


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       innocence claim and not raised the ineffective-assistance claim, rendering the actual innocence

       claim “freestanding” and reviewable in postconviction. To evaluate this choice, we must

       examine the actual innocence claim itself. To make a substantial showing of actual innocence,

       Zareski must present “new, material, noncumulative evidence that is so conclusive it would

       probably change the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96.

¶ 72          Zareski alleges that the trial court held that Mandujano’s affidavit was “newly

       discovered.” In fact, the trial court made no holding on whether the affidavit was “new,” but

       rejected it as not material and cumulative. To be “new,” the evidence must have been discovered

       after trial and could not have been discovered earlier through the exercise of due diligence. Id.

       Mandujano was apparently found after trial, but we cannot see how she could not have been

       discovered earlier through the exercise of due diligence. Mandujano lived in the same apartment

       building as Nieves, where the shooting took place, but did not answer the door when the police

       knocked during their canvass. The location of the shooting and the possible witnesses was well-

       known to the defense team. Cf. People v. Jones, 2016 IL App (1st) 123371, ¶ 91 (since petitioner

       asserted he was not present during shooting, he would not know who was present and could

       exonerate him). Nor had she made herself “unavailable” to an extent that she could not have

       been found before trial. Cf. id. (exonerating witness made himself unavailable by fleeing to

       California after witnessing crime, and so was “newly discovered”).

¶ 73          The parties disagree as to whether the law requires that the evidence “totally exonerate”

       Zareski to be “conclusive.” Compare People v. Gonzalez, 2016 IL App (1st) 141660, ¶ 28

       (“probability, not certainty, is the key” and new evidence need not be “completely dispositive” to

       be likely to change result on retrial) with People v. Flowers, 2015 IL App (1st) 113259, ¶ 33

       (new evidence must “totally vindicate or exonerate” defendant). We need not decide this


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       question because this evidence is not “conclusive” under either interpretation. Mandujano’s

       testimony would have supported Zareski’s proffered trial theory that he fired at Nieves only in

       self-defense, but this is not the kind of convincing evidence that would have changed the result

       on retrial.

¶ 74           Consider Jones, 2016 IL App (1st) 123371, ¶¶ 102-04. There, Jones made a substantial

       showing of actual innocence through a plethora of newly discovered evidence—the affidavit of a

       newly discovered eyewitness, stating that Jones was not present at the crime scene; the affidavit

       of the murderer, stating that Jones was not involved; the statements of two alibi witnesses that

       Jones was with them during the crime; and evidence of misconduct by police officers who

       obtained Jones’s confession. Id. ¶ 102. In contrast, only one piece of inculpatory evidence was

       presented at trial: Jones’s videotaped confession, which he consistently claimed was coerced and

       which did not match some of the physical evidence. Id. ¶ 104. Jones met the stringent actual

       innocence standard. Zareski’s actual innocence claim falls far short of that which would have to

       be made. See People v. Evans, 2017 IL App (1st) 143268, ¶¶ 29-31 (where defendant admitted

       that he was present, armed, and firing during shooting, affidavits from two new witnesses that

       defendant was not present during shooting were not sufficiently “conclusive”). Since we are

       rejecting the claim on these grounds, we need not address whether the affidavit was “material”

       and “noncumulative.”

¶ 75           The trial court rejected both forms of the Mandujano claim, but Frankel’s failure to

       choose the actual innocence claim did not prejudice Zareski, as he would not have succeeded

       even if the claim had been freestanding.




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¶ 76                            Waiver of a Second-Degree Murder Instruction

¶ 77          Next, Zareski claims that trial counsel provided ineffective assistance by failing to advise

       him of the sentencing ranges for first and second degree murder, leading Zareski to make an

       unknowing waiver of his right to an instruction on second degree murder. (On appeal, Zareski

       does not claim that trial counsel was ineffective for failing to obtain the instruction.) But

       Zareski’s claim fails at the outset as Zareski had no such right to decide whether he wanted the

       instruction. Without that right, whatever advice he did or did not receive from trial counsel was

       of no moment.

¶ 78          Included in the rights belonging exclusively to the defendant is the right to decide

       whether to submit an instruction on a lesser-included offense. People v. Brocksmith, 162 Ill. 2d

       224, 229 (1994). But, in People v. Wilmington, the Illinois Supreme Court concluded that this

       does not apply to a second degree murder instruction because second degree murder is not a

       lesser-included offense of first degree murder, but rather a “lesser-mitigated” offense. 2013 IL

       112938, ¶ 48. Wilmington distinguished first and second degree murder from the principle

       underlying Brocksmith. “While a defendant who tenders a lesser-included offense instruction

       exposes himself to potential criminal liability, which he otherwise might avoid if neither the trial

       judge nor the prosecutor seeks the pertinent instruction,” that is not so with second degree

       murder, since a defendant can only be found guilty of second degree murder if all the elements of

       first degree murder have already been proven. (Internal quotation marks omitted.) Id. Defendants

       who ask for a lesser-included instruction are exposing themselves to additional risk, akin to other

       risk-taking decisions like whether to take a plea or testify at trial. The decision is a personal one.

       But for second degree murder, there is no additional risk, and that puts this decision in the much




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       bigger category of strategic choices to be made by the defense attorney. So, it was not Zareski’s

       decision to make, and he did not have a right that needed to be waived.

¶ 79          Zareski attempts to avoid Wilmington by arguing that two post-Wilmington courts found

       that a defendant has the personal right to decide whether to tender a second degree murder

       instruction. While both of these cases rely on Brocksmith, neither cites to Wilmington. See

       People v. Brown, 2014 IL App (4th) 120887, ¶ 21; People v. Shamlodhiya, 2013 IL App (2d)

       120065, ¶ 16. Those cases do not address Wilmington’s obvious applicability, and we will not

       follow them.

¶ 80          Since Zareski did not have a personal right to decide whether he wanted a second-degree

       murder instruction, he was not actually “waiving” any right, there was no “unknowing waiver,”

       and his trial counsel did not provide ineffective assistance in advising him on the sentencing

       ranges (whatever that advice may have been).

¶ 81                                 Failure to Impeach with Photographs

¶ 82          Finally, Zareski argues that his trial counsel was ineffective for failing to impeach Crespo

       and LaBombard with social media photographs showing them flashing gang signs. The State

       rightly argues that this claim is barred by res judicata. On direct appeal, Zareski argued that trial

       counsel was ineffective for failing to question Crespo and LaBombard about their gang

       affiliations and failing to investigate the photographs. The appellate court denied this claim on

       the Strickland prejudice prong, holding that even if this evidence had been presented, it would

       not have created a “reasonable probability” of a different outcome. Zareski, 2012 IL App (1st)

       102102-U, ¶ 55. Zareski states that the appellate court declined to rule on this claim, but he

       confuses it with the argument that Crespo’s and LaBombard’s bias rendered them incredible

       witnesses. Id. ¶ 32. Beyond the res judicata implications, Zareski does not explain how trial


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       counsel would have been able to impeach LaBombard with these photographs. Unlike Crespo,

       she never testified regarding gang affiliation one way or the other.

¶ 83                       Direct Appeal Counsel Acting as Postconviction Counsel

¶ 84          In rejecting all of Zareski’s claims, we emphasize the potential dangers presented when

       retained counsel represents a defendant on direct appeal and as postconviction counsel. Although

       not presented in this case, actual conflicts of interest might easily arise in other factual settings

       that violate a defendant’s right to conflict-free counsel. Practitioners are reminded to exercise

       caution and thoughtful consideration in deciding whether to act as direct appeal counsel and

       postconviction counsel.

¶ 85          Affirmed.




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