                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                               People v. English, 2013 IL 112890




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SCOTT F.
Court:                     ENGLISH, Appellant.



Docket No.                 112890


Filed                      January 25, 2013
Rehearing denied           April 18, 2013


Held                       A postconviction claim that felony murder could not be predicated on
(Note: This syllabus       aggravated battery of a child was forfeited where it had been available on
constitutes no part of     direct appeal but was not raised there, even though this was before the
the opinion of the court   Illinois Supreme Court held in People v. Morgan, 197 Ill. 2d 404 (2001),
but has been prepared      that the predicate felony underlying a felony-murder charge must have an
by the Reporter of         “independent felonious purpose”—no ineffectiveness of appellate
Decisions for the          counsel.
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Third District; heard in that
Review                     court on appeal from the Circuit Court of Henry County, the Hon. Charles
                           H. Stengel, Judge, presiding.



Judgment                   Affirmed.
Counsel on               Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy
Appeal                   Defender, and Kerry J. Bryson, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Ottawa, for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Terence Patton,
                         State’s Attorney, of Cambridge (Michael A. Scodro, Solicitor General,
                         and Michael M. Glick and Erin M. O’Connell, Assistant Attorneys
                         General, of Chicago, of counsel), for the People.


Justices                 JUSTICE KARMEIER delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Thomas, Garman, and Theis
                         concurred in the judgment and opinion.
                         Justice Freeman specially concurred, with opinion, joined by Justice
                         Burke.



                                            OPINION

¶1                                       I. BACKGROUND
¶2        Defendant, Scott F. English, was charged in the death of Jami Sue Pollock, the three-
      year-old daughter of his live-in girlfriend. He was charged with first degree (knowing)
      murder (720 ILCS 5/9-1(a)(2) (West 1994)), first degree (felony) murder predicated on
      aggravated battery of a child (720 ILCS 5/9-1(a)(3) (West 1994)), and aggravated battery of
      a child (720 ILCS 5/12-4.3(a) (West 1994)).
¶3        At his jury trial in the circuit court of Henry County, Dr. Violette Hnilica, a forensic
      pathologist, testified regarding Jami Sue’s autopsy. Dr. Hnilica’s external examination
      revealed many bruises on multiple parts of Jami Sue’s body, including massive injuries to
      her head, back, and chest and scattered bruises on her arms and legs. The bruises were in
      various stages of healing. Jami Sue had severe, recent head injuries, including a swollen and
      bruised area on the back right side of her head covering an eight centimeter area of
      hemorrhage under her scalp. Dr. Hnilica characterized the hemorrhage as “massive” and
      testified that it was the result of “[h]eavy rapid force.” She testified that blunt force trauma
      to the head contributed to Jami Sue’s death.
¶4        Dr. Hnilica also found evidence that Jami Sue had been suffocated, which included
      broken capillaries (petechiae) in her eyes, abrasions on her nose, and dried lips. Dr. Hnilica
      also observed fingernail injuries Jami Sue had made to her own chest, consistent with her
      having struggled while something, like a pillow, had been held over her face. In Dr. Hnilica’s
      expert opinion, it was unlikely that Jami Sue had accidentally suffocated herself in light of
      the fingernail marks. Dr. Hnilica concluded that asphyxiation also contributed to Jami Sue’s
      death.

                                                -2-
¶5         Investigator Sheri Ranos with the Illinois State Police testified that she interviewed
       defendant on October 11, 1995, the day after Jami Sue’s death, at the Kewanee police
       department. In the initial interview, he claimed that at approximately 1 a.m. on October 10,
       1995, he had come home from work and gone to check on Jami Sue and her brother Preston
       in the bedroom they shared. He found her tangled in her blanket and fixed the blanket. She
       cried for her mother, who briefly came into the room. At first, he claimed that at
       approximately 3:45 a.m., his son David woke him up, and he again went into Jami Sue and
       Preston’s room, where he found her lifeless under her blanket. Given that the 911 call had
       been placed at 4:58 a.m., however, he changed his story, reasoning that he must have gone
       into the children’s room at 4:30 a.m. He maintained that between 1 and 4:30 a.m., no one
       else had entered the children’s room. He speculated that Jami Sue may have died of
       suffocation because she had rolled herself in her blanket and could not breathe.
¶6         Investigator Ranos told defendant that preliminary autopsy results indicated that Jami Sue
       had sustained injuries to her head, neck, and back. Defendant indicated that “he could
       probably shed some light on those injuries.” He stated that during breakfast on October 7,
       1995, he “inadvertently grabbed [Jami Sue] by the neck” when she ran past him, leaving a
       mark on her neck. He also indicated that on the same day, he was giving Jami Sue and David
       a bath when Jami Sue stepped on David, causing David to yell. He claimed that, in the
       commotion, he “pushed Jami [Sue] back with his elbow,” causing her to land on her back
       on the bathroom floor, resulting in bruises.
¶7         Defendant also admitted hitting Jami Sue on the day she died. He stated that when he
       went into the children’s room at 4:30 a.m., he found her tangled in her blanket again. When
       he pulled the blanket off of her, “she whined,” which “made him so mad that he hit her.” He
       believed he hit the back of her head. He then recalled having gone into the children’s room
       a third time and changed the time line. Specifically, he now recalled going into the room at
       1 a.m. and fixing Jami Sue’s blanket. He then went into the room a second time at
       approximately 3:30 a.m., saw her tangled in her blanket again, yelled at her, and hit her in
       the head. He went into the room a third time at approximately 4:30 a.m., at which time he
       found her lifeless. Later, he admitted that when he went into the room at 3:30 a.m., he hit her
       on the head twice, not once.
¶8         Detective Joe Cervantez, who was also present during the interview, testified that
       defendant indicated that he hit the back right side of Jami Sue’s head with his palm using a
       downward “hammering” motion. Defendant ultimately gave a videotaped statement, which
       was played for the jury. He did not testify at trial.
¶9         At the close of the evidence, the State moved to dismiss the knowing murder charge and
       to submit to the jury only the aggravated battery of a child and felony-murder charges.
       Defendant objected that proceeding in this manner removed the possibility of having the
       court instruct the jury on involuntary manslaughter. The court allowed the State’s motion,
       finding it permissible for the State to proceed only on the felony-murder and aggravated
       battery of a child charges.
¶ 10       The jury found defendant guilty of felony murder and aggravated battery of a child. He
       was sentenced to mandatory natural life imprisonment.


                                                -3-
¶ 11        On direct appeal, defendant argued that (1) the trial court erred in refusing to instruct the
       jury on involuntary manslaughter because the State deliberately dismissed the knowing
       murder charge as a strategic decision to avoid involuntary manslaughter instructions; and (2)
       his natural life sentence was unlawful.
¶ 12        In People v. English, No. 3-96-0767 (2000) (unpublished order under Supreme Court
       Rule 23) (English I), the appellate court held that “the circuit court did not abuse its
       discretion when it did not instruct the jury on involuntary manslaughter.” Id. at 11. In
       reaching that conclusion, the English I court noted that the trial court instructed the jury on
       both recklessness and knowing conduct and stated:
                “The evidence in this case shows that [defendant] acted with intent to cause great
                bodily harm. The jury found [defendant] guilty of aggravated battery of a child and,
                therefore, that he acted intentionally or knowingly. It could not also have found that
                he acted recklessly. Consequently, the jury found [defendant] guilty of felony murder.
                Had the jury found that [defendant] merely acted recklessly, it should have acquitted
                him of aggravated battery of a child and could not have convicted him of felony
                murder.” Id.
       However, the English I court held that defendant’s sentence was erroneous because the
       statute under which he was sentenced to natural life imprisonment was enacted in violation
       of Illinois’ single-subject rule. Id. at 12. The court, therefore, affirmed defendant’s conviction
       but vacated his natural life sentence and remanded for resentencing. Id. On remand, he was
       sentenced to 50 years in prison.
¶ 13        In 1999, while his direct appeal was pending, defendant filed a postconviction petition,
       which he voluntarily dismissed on August 6, 2003. In 2004, he filed another postconviction
       petition, which the circuit court treated as a successive petition and dismissed on May 24,
       2004, on the State’s motion. Defendant then filed a motion to reinstate his original 1999
       petition. On September 26, 2005, the circuit court denied defendant’s motion to reinstate his
       original 1999 petition. Defendant again appealed.
¶ 14        In People v. English, 381 Ill. App. 3d 906, 909 (2008) (English II), the appellate court
       held that it had no jurisdiction to consider the dismissal of defendant’s 2004 postconviction
       petition because it was dismissed on May 24, 2004, and defendant failed to file a timely
       notice of appeal. However, the English II court noted that defendant did file a timely notice
       of appeal after the denial of his motion to reinstate his 1999 petition. In addressing that
       matter, the English II court held that the circuit court erred in denying defendant’s motion
       to reinstate the 1999 petition. Id. at 910. The court noted that defendant voluntarily dismissed
       his 1999 petition on August 6, 2003, and moved to reinstate the petition on August 4, 2004.
       Because postconviction proceedings are civil in nature, the English II court found that,
       pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2004)),
       defendant had one year to refile or reinstate his voluntarily dismissed petition. English II, 381
       Ill. App. 3d at 910. Thus, the English II court reversed the circuit court’s denial of
       defendant’s motion to reinstate his original petition and remanded the cause to allow the
       circuit court to reinstate the original postconviction petition, with amendments, and treat it
       as an initial petition. Id.


                                                  -4-
¶ 15        On remand, defendant filed the amended postconviction petition that is the subject of this
       appeal. Relying on People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d
       434 (2003), which were decided after his direct appeal, he argued that his felony-murder
       conviction based on the predicate felony of aggravated battery of a child was improper
       because the acts constituting the aggravated battery of a child arose from, and were inherent
       in, the killing. He argued that by proceeding on felony murder based on an act that was
       inherent in the murder, the State eliminated its burden of proving, beyond a reasonable doubt,
       a knowing and intentional killing, which violated his constitutional rights to due process and
       a fair trial.
¶ 16        The State filed an answer, arguing that the doctrine of res judicata barred defendant’s
       claims and that the authorities defendant cited to support his conclusions were
       distinguishable from this case. After a hearing, the circuit court denied the petition, finding
       defendant’s claim that his felony-murder conviction was improperly predicated on
       aggravated battery of a child barred by res judicata because it was related to the claim raised
       on direct appeal regarding the trial court’s refusal to instruct the jury on involuntary
       manslaughter.
¶ 17        Defendant again appealed, arguing that the circuit court erred in denying his
       postconviction petition because the issue of whether the aggravated battery of a child could
       properly serve as the predicate felony for felony murder had not been addressed previously
       and, therefore, was not barred by res judicata. In its appellate brief, the State argued that the
       issue was procedurally barred on two alternative grounds—forfeiture and res judicata. In his
       reply brief, defendant argued that the issue was not forfeited because the analysis set out in
       Morgan and Pelt was not available at the time of his direct appeal. He also argued, for the
       first time, that if the court found that he had forfeited the issue by failing to raise it on direct
       appeal, then counsel was ineffective for failing to raise the issue on direct appeal.
¶ 18        In People v. English, 2011 IL App (3d) 100764 (English III), the appellate court affirmed,
       noting that the claim raised in defendant’s postconviction petition was based entirely on
       matters contained within the trial record and could have been raised on direct appeal but was
       not. Citing People v. Viser, 62 Ill. 2d 568 (1975), and other cases, the English III court noted
       that the question of whether an aggravated battery that resulted in death could serve as the
       predicate felony for felony murder was not a new or novel concept in 1996. English III, 2011
       IL App (3d) 100764, ¶ 18. The English III court then stated that the issue was barred by res
       judicata. Id. ¶ 20. The parties agree, and the context makes clear, that the English III court
       meant to find the issue forfeited because it could have been raised on direct appeal but was
       not. The English III court also found the ineffective assistance of appellate counsel issue
       forfeited because it was raised for the first time in defendant’s reply brief. However, the court
       went on to find that, if it were to address the issue, it would find that counsel was not
       ineffective in failing to raise the issue on direct appeal because under the law at that time,
       aggravated battery could serve as the predicate felony for felony murder. Id. ¶ 24.
¶ 19        This court allowed defendant’s timely petition for leave to appeal (see Ill. S. Ct. R. 315
       (eff. Feb. 26, 2010)). For the reasons that follow, we affirm.



                                                   -5-
¶ 20                                         II. ANALYSIS
¶ 21       The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a
       mechanism by which a criminal defendant can assert that his conviction and sentence were
       the result of a substantial denial of his rights under the United States Constitution, the Illinois
       Constitution, or both. 725 ILCS 5/122-1(a) (West 2010). A postconviction proceeding is not
       an appeal from the judgment of conviction, but is a collateral attack on the trial court
       proceedings. People v. Petrenko, 237 Ill. 2d 490, 499 (2010). To be entitled to postconviction
       relief, a defendant must establish a substantial deprivation of federal or state constitutional
       rights in the proceedings that produced the challenged judgment. People v. Harris, 206 Ill.
       2d 1, 12 (2002).
¶ 22       The purpose of a postconviction proceeding is to permit inquiry into constitutional issues
       involved in the original conviction and sentence that were not, and could not have been,
       adjudicated previously on direct appeal. Id. Issues that were raised and decided on direct
       appeal are barred by res judicata, and issues that could have been raised on direct appeal, but
       were not, are forfeited. People v. Ligon, 239 Ill. 2d 94, 103 (2010). However, the doctrines
       of res judicata and forfeiture are relaxed where fundamental fairness so requires, where the
       forfeiture stems from the ineffective assistance of appellate counsel, or where the facts
       relating to the issue do not appear on the face of the original appellate record. People v.
       Williams, 209 Ill. 2d 227, 233 (2004).
¶ 23       The Act provides a three-stage process for adjudicating postconviction petitions. People
       v. Beaman, 229 Ill. 2d 56, 71 (2008). In this case, the petition advanced to a third-stage
       hearing. See 725 ILCS 5/122-6 (West 2010). After an evidentiary hearing where fact-finding
       and credibility determinations are involved, the circuit court’s decision will not be reversed
       unless it is manifestly erroneous. Beaman, 229 Ill. 2d at 72. However, if no such
       determinations are necessary at the third stage, i.e., no new evidence is presented and the
       issues presented are pure questions of law, we will apply a de novo standard of review, unless
       the judge presiding over postconviction proceedings has some special expertise or familiarity
       with defendant’s trial or sentencing and that familiarity has some bearing upon disposition
       of the postconviction petition. Id.
¶ 24       At the third-stage hearing in this case, the circuit court heard no new evidence; instead,
       the court reviewed the trial transcripts and heard arguments of counsel. In addition, the judge
       presiding over the hearing did not preside over defendant’s trial and, thus, had no special
       expertise or familiarity with defendant’s trial. Under these circumstances, the standard of
       review is de novo. See id. See also People v. Sanders, 238 Ill. 2d 391, 398 (2010); People
       v. Caballero, 206 Ill. 2d 65, 88 (2002).
¶ 25       Initially, we address the State’s argument that the English III court’s judgment should be
       affirmed because defendant’s argument that the aggravated battery of a child could not
       properly serve as the predicate felony for felony murder is forfeited because it could have
       been raised on direct appeal but was not. Defendant responds that the argument is not
       forfeited because the analysis set out in Morgan and Pelt was not available to him at the time
       of his direct appeal. He further notes that Viser appeared to preclude his argument.
¶ 26       In 1975, this court addressed whether aggravated battery could serve as the predicate


                                                  -6-
       felony for felony murder where the aggravated battery was alleged to have been committed
       against the person who died. Viser, 62 Ill. 2d at 577. The defendants in Viser argued that their
       indictments failed to properly charge murder where they alleged that the defendants had each
       caused the death of the victim, Hector Jordan, as they were attempting to commit or were
       committing a forcible felony upon him, namely, aggravated battery. Id. at 576-77. The
       defendants argued that the indictments would have been proper only if they had charged that
       the defendants killed Jordan while committing an aggravated battery upon the surviving
       victim, Harold Smith. Id. at 578.
¶ 27        On review, we noted that, at common law, any unlawful killing that occurred during the
       commission of any felony was murder. Id. We noted that the statute limited the offense
       underlying felony murder to a forcible felony other than voluntary manslaughter and that
       aggravated battery is a forcible felony. Id. at 578-79. We concluded that, in establishing the
       offense of felony murder, the legislature intended to deter the commission of any of the
       enumerated forcible felonies, including aggravated battery, by holding the perpetrator
       responsible for murder if death results. Id. at 580. Therefore, we held that the indictment
       charging the defendants with felony murder based on the aggravated battery of the deceased
       victim was proper. Id.
¶ 28        In Morgan, which was decided after defendant’s direct appeal, we again discussed the
       circumstances in which forcible felonies may serve as predicates for felony murder. In
       Morgan, the 14-year-old defendant shot his grandmother in the back as she was fleeing her
       home. He tried to shoot her again as she was lying on the ground in the front yard, but the
       gun jammed. He was convicted of, inter alia, felony murder predicated on both aggravated
       battery and aggravated discharge of a firearm. The appellate court noted that to allow such
       a felony-murder conviction to stand could “effectively eliminate the second degree murder
       statute” and “eliminate the need for the State to prove an intentional or knowing killing in
       most murder cases.” People v. Morgan, 307 Ill. App. 3d 707, 712 (1999). The appellate court
       held that the predicate felony underlying a felony-murder charge “must involve conduct with
       a felonious purpose other than the killing itself.” Id. at 714. The appellate court therefore
       reversed the defendant’s conviction.
¶ 29        On appeal, we agreed with the appellate court that where “the acts constituting forcible
       felonies arise from and are inherent in the act of murder itself, those acts cannot serve as
       predicate felonies for a charge of felony murder.” Morgan, 197 Ill. 2d at 447. We also agreed
       with the appellate court that the predicate felony underlying a felony-murder charge must
       have an “independent felonious purpose.” Id. at 458. Applying these principles, we held that
       the forcible felonies underlying the murder charge “were acts that were inherent in, and arose
       out of, the fatal shootings.” Id. at 447.
¶ 30        In Pelt, the defendant was convicted of aggravated battery of a child, his infant son, and
       first degree murder predicated on aggravated battery of a child. Pelt, 207 Ill. 2d at 436. The
       defendant’s statement indicated that he was upset when the infant would not stop crying; he
       tried to throw the infant to the bed; and he apparently threw the infant too far because the
       infant hit the dresser. Id. at 442. The appellate court held that the defendant’s felony-murder
       conviction was improperly predicated on aggravated battery of a child, in contravention of
       Morgan. Id. at 440. We agreed. Id. at 441. We noted that the act of throwing the infant

                                                 -7-
       formed the basis of the defendant’s aggravated battery conviction and was the same act
       underlying the killing. Id. Therefore, as in Morgan, we found that it was “difficult to
       conclude that the predicate felony underlying the charge of felony murder involved conduct
       with a felonious purpose other than the conduct which killed the infant.” Id. at 442.
¶ 31        While defendant is correct that his argument had less support in the law at the time of his
       direct appeal than it has today, the argument was available to him at the time of his direct
       appeal. Indeed, the defendants in Viser made a similar argument in 1975, demonstrating that
       the theory on which defendant relies is not novel. See Viser, 62 Ill. 2d 568. Moreover, the
       defendant in Morgan faced the same legal landscape as defendant but nevertheless argued
       on direct appeal that aggravated battery was not a proper predicate for felony murder because
       it lacked an independent felonious purpose. See Morgan, 197 Ill. 2d 404. If the defendant in
       Morgan was able to raise the issue under such circumstances, defendant also could have done
       so. Accordingly, defendant’s argument is forfeited. See Harris, 206 Ill. 2d at 13.
¶ 32        Defendant argues that, if this court concludes, as we have, that the issue was forfeited
       because it could have been raised on direct appeal but was not, then we must also find that
       his counsel was ineffective in failing to raise the issue on direct appeal. We disagree.
¶ 33        To establish that appellate counsel was ineffective, defendant must satisfy the standard
       set forth in Strickland v. Washington, 466 U.S. 668, 685-87 (1984), and adopted by this court
       in People v. Albanese, 104 Ill. 2d 504 (1984). Under that standard, a defendant must show
       both that appellate counsel’s performance was deficient and that, but for counsel’s errors,
       there is a reasonable probability that the appeal would have been successful. Strickland, 466
       U.S. at 694; Petrenko, 237 Ill. 2d at 497. Appellate counsel is not obligated to raise “every
       conceivable issue on appeal,” but rather is expected to “exercise professional judgment to
       select from the many potential claims of error that might be asserted on appeal.” Williams,
       209 Ill. 2d at 243.
¶ 34        Appellate counsel’s assessment of the merits of an issue, furthermore, depends on the
       state of the law at the time of the direct appeal. See People v. Weninger, 292 Ill. App. 3d 340,
       345 (1997) (“Representation based on the law prevailing at the time of trial is adequate, and
       counsel is not incompetent for failing to accurately predict that existing law will change.
       [Citation.] The same principles apply for claims of inadequate representation on direct
       appeal. People v. Barnard, 104 Ill. 2d 218 *** (1984). Appellate counsel is not required to
       raise issues that he reasonably determines are not meritorious. People v. Collins, 153 Ill. 2d
       130 *** (1992).”); see also Strickland, 466 U.S. at 689 (“A fair assessment of attorney
       performance requires that every effort be made to eliminate the distorting effects of
       hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
       the conduct from counsel’s perspective at the time.”).
¶ 35        Here, defendant concedes that the basis on which he seeks to invalidate his murder
       conviction, the independent felonious purpose analysis, was not supported by precedent at
       the time of his direct appeal. Consequently, it was reasonable for appellate counsel to
       conclude that the issue defendant raises here was unlikely to succeed. Counsel instead
       proceeded on challenges to the jury instructions and the length of defendant’s sentence and
       ultimately was successful in having defendant’s natural life sentence vacated. As a result,


                                                 -8-
       defendant’s sentence was reduced to 50 years in prison. Appellate counsel cannot be deemed
       deficient for failing to predict Morgan and subsequent cases. Therefore, the issue is forfeited,
       and the forfeiture is not excused based on ineffective assistance of appellate counsel.
¶ 36        Finally, defendant argues that the English III court’s decision leaves him in a procedural
       lurch. On the one hand, the court found that he forfeited his claim because it could have been
       raised on direct appeal but was not, even though the law at the time did not support such a
       claim. On the other hand, the court found that counsel was not ineffective in failing to raise
       the issue on direct appeal because the law at the time did not support such a claim. Defendant
       argues that, under the English III court’s decision, he is left without any means of remedying
       his improper felony-murder conviction based on aggravated battery of a child, which violates
       the principles set forth by this court in Morgan and Pelt.
¶ 37        The State responds that, although defendant is correct that a proper application of the
       forfeiture doctrine leaves him without a remedy, the limited scope of postconviction review
       compels this result where, as here, defendant failed to raise his claim on direct appeal when
       he had the chance. The State is correct in this regard.
¶ 38        Because our resolution of the forfeiture issue is dispositive on appeal, we need not
       address the State’s alternative arguments as to why the English III court’s judgment should
       be affirmed.

¶ 39                                  III. CONCLUSION
¶ 40      For the foregoing reasons, we affirm.

¶ 41      Affirmed.

¶ 42        JUSTICE FREEMAN, specially concurring:
¶ 43        Although I agree that the circuit court’s judgment must be affirmed, I disagree with the
       court’s rationale for a number of different reasons and cannot join in its opinion.
¶ 44        This appeal from the circuit court’s denial of defendant’s amended postconviction
       petition centers on two claims upon which defendant maintains he is entitled to relief. The
       first is defendant’s claim that his felony-murder conviction, based on the predicate felony of
       aggravated battery of a child, must be vacated under the independent felonious purpose rule
       announced in People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d 434
       (2003). This is so, defendant argues, because under the rule, the acts constituting aggravated
       battery of a child arose from and were inherent in the killing of the child, and thus defendant
       lacked the necessary independent felonious purpose. Because both Morgan and Pelt were
       issued after defendant’s direct appeal had been decided, defendant anticipated that the State
       would assert a forfeiture challenge to the claim so he added a second claim in his amended
       petition, which alleged that his appellate counsel rendered ineffective assistance by failing
       to assert on direct appeal that defendant lacked an independent felonious purpose. As noted,
       the circuit court denied relief on both claims.
¶ 45        The State initially argues that defendant’s independent felonious purpose claim is not

                                                 -9-
       cognizable on postconviction review and that the circuit court’s judgment with respect to this
       claim can be affirmed on that basis alone. Specifically, the State maintains that the
       independent felonious purpose rule announced in Morgan was based on principles of
       statutory construction as opposed to constitutional mandate. Today’s opinion does not
       address the State’s argument. Instead, the court concludes that defendant forfeited the claim
       by not raising it on direct appeal.
¶ 46       The court’s silence regarding the State’s threshold argument is troubling because under
       the Post-Conviction Hearing Act only those claims alleging a deprivation of a constitutional
       right may be adjudicated. 725 ILCS 5/122-1 (West 2004). The State’s cognizability argument
       necessarily precedes any other argument, including the forfeiture argument addressed in the
       opinion. A claim cannot be forfeited for purposes of postconviction review if the claim
       cannot be raised in a postconviction petition in the first place. This court’s earliest opinions
       interpreting the Act make this clear. For example, in People v. Hartman, 408 Ill. 133, 137
       (1951), we expressly held that the plain language of the Act limited review only to
       “constitutional questions and the denial of constitutional rights.” And, in People v. Farley,
       408 Ill. 288 (1951), the court explained why the cognizability issue was important as a
       threshold matter:
                    “The Post-Conviction Act requires the petition to state clearly a denial of a
                constitutional right. ***
                    *** [T]he intention of the legislature was not to afford a general review of every
                error a prisoner who is dissatisfied with his conviction may assert, but a review only
                of those cases in which a substantial denial of a constitutional right has been
                disclosed. A constitutional right must necessarily involve a constitutional question.
                ***
                    ***
                    *** We have gone into this matter more extensively than perhaps is necessary,
                because we believe that under the Post-Conviction Act it is the duty of the person
                claiming that he has been denied substantial constitutional rights to set them forth in
                his petition, so that the trial court can clearly and easily determine what constitutional
                issue is presented, and whether defendant’s claim constitutes a denial of a
                constitutional right.” Id. at 294-95.
       Thus, from the Act’s beginnings, this court has recognized that whether a claim is cognizable
       under the Act is a threshold inquiry that should precede other affirmative matters that might
       defeat an otherwise viable claim. See also People v. Jennings, 411 Ill. 21, 26 (1952) (holding
       that the Act is limited to constitutional claims and that the trial court must determine whether
       the allegations, liberally construed “make a showing of imprisonment in violation of the
       Federal or State constitution”); People v. Flores, 153 Ill. 2d 264, 278 (1992) (holding that
       where a petition merely attaches a constitutional label to allegations that do not raise an issue
       of constitutional proportion, dismissal is mandatory).
¶ 47       Owing to the court’s silence on the cognizability issue, there are only two possibilities
       that one can draw from today’s opinion: Either the court (1) is unaware of the long-standing
       precedent regarding the need for a postconviction claim to have a constitutional basis in

                                                  -10-
       order to withstand dismissal or (2) it agrees that Morgan’s independent felonious purpose
       rule is constitutional in nature. Because the State has raised the cognizability issue, the court
       has been made aware of the requirement that a postconviction claim have a constitutional
       basis to withstand dismissal. Thus, I can only conclude that the court has rejected the State’s
       threshold argument and has determined that the independent felonious purpose rule
       announced in Morgan is constitutionally based. This means, of course, that defendant and
       all others like him can raise such claims on postconviction review. I disagree with this
       conclusion.
¶ 48       Morgan’s rationale for holding that a predicate felony must have an independent
       felonious purpose was explicit. As the court acknowledged in Morgan, if there were no such
       rule, the result would be to “ ‘eliminate the second degree murder statute’ and also to
       ‘eliminate the need for the State to prove an intentional or knowing killing in most murder
       cases.’ ” Morgan, 197 Ill. 2d at 447. In other words, the plain reading of the statute—that all
       forcible felonies other than second degree murder could serve as predicate felonies for felony
       murder—was rejected in order to avoid an absurd result and to avoid rendering part of the
       murder statute entirely superfluous. This was a matter of statutory interpretation, not
       constitutional analysis.
¶ 49       Defendant points out that one of the concerns underlying the decisions in both Morgan
       and Pelt was “whether the State improperly used felony-murder charges to avoid the burden
       of proving an intentional or knowing murder.” From this, defendant contends that Morgan
       and Pelt ensure that the State was held to its constitutional burden of proof, and that criminal
       defendants would not be deprived of their rights to due process. Thus, according to
       defendant, Morgan and Pelt established a constitutional right that may be raised on
       postconviction. This is incorrect. If defendant is right, then every felony-murder conviction
       would be unconstitutional because in every felony-murder conviction the State does not have
       to prove an intentional or knowing murder.
¶ 50       The court today deprecates the statutory requirement that a postconviction claim be based
       on an identifiable constitutional question or violation. We have stressed in the past that
       merely pasting a constitutional label on an error is not enough. See Flores, 153 Ill. 2d at 278.
       At best, this is what defendant has done with respect to his independent felonious purpose
       claim since neither Morgan nor Pelt identify any constitutional underpinning for their ratio
       decidendi. The court is wrong in its conclusion that the independent felonious purpose rule
       announced in Morgan and followed in Pelt is the product of constitutional analysis as
       opposed to statutory interpretation. This decision has very real consequences as it will open
       the door for other prisoners to seek collateral relief for this same nonconstitutional error.1
¶ 51       Today’s opinion suffers from other faults aside from its failure to address the State’s
       threshold argument that merit comment. First, the opinion contains an internal inconsistency


               1
                Not only does the court’s opinion today conclude that the claim is constitutionally based
       and thus cognizable under the Act, the court also fails to explain why the rule announced in Morgan
       and Pelt would be retroactively applied on collateral review to a case, such as this one, that was final
       before the pronouncement of the rule. See People v. Morris, 236 Ill. 2d 345, 359 (2010).

                                                    -11-
       that would prevent me from joining in it even if I were to conclude that Morgan’s
       independent felonious purpose rule was constitutionally derived and retroactive to cases on
       collateral review. As noted previously, the court ignores the State’s threshold argument and
       instead begins its analysis by rejecting defendant’s independent felonious purpose claim,
       agreeing with the State that defendant forfeited the claim when he failed to raise it in his
       direct appeal. The court then goes on to reject defendant’s second, ineffective assistance of
       appellate counsel claim, holding that the forfeiture “is not excused based on ineffective
       assistance of appellate counsel.” Supra ¶ 35.
¶ 52        In accepting the State’s argument that defendant forfeited his independent felonious
       purpose claim, the court states:
                “[T]he argument was available to him at the time of his direct appeal. Indeed, the
                defendants in Viser made a similar argument in 1975, demonstrating that the theory
                on which defendant relies is not novel. [Citation.] Moreover, the defendant in
                Morgan faced the same legal landscape as defendant but nevertheless argued on
                direct appeal that aggravated battery was not a proper predicate for felony murder
                because it lacked an independent felonious purpose. [Citation.] If the defendant in
                Morgan was able to raise the issue under such circumstances, defendant also could
                have done so. Accordingly, defendant’s argument is forfeited.” Supra ¶ 31.
       The upshot of this reasoning is that there was nothing new or novel about the independent
       felonious purpose rule at the time defendant filed his appeal. In other words, because the
       claim was available at that time, it is not unfair to hold the matter forfeited now on collateral
       review.
¶ 53        However, several paragraphs later, the court, in rejecting defendant’s ineffective
       assistance of appellate counsel claim, states the following:
                    “Here, defendant concedes that the basis on which he seeks to invalidate his
                murder conviction, the independent felonious purpose analysis, was not supported
                by precedent at the time of his direct appeal. Consequently, it was reasonable for
                appellate counsel to conclude that the issue defendant raises here was unlikely to
                succeed. *** Appellate counsel cannot be deemed deficient for failing to predict
                Morgan and subsequent cases.” Supra ¶ 35.
       The court thus states that the independent felonious purpose rule did not exist at the time
       defendant took his direct appeal and that Morgan represented a change in the law or a new
       development in the law that appellate counsel had to “predict” would exist in the future. In
       other words, appellate counsel should not be faulted for failing to foresee a rule that did not
       exist at the time. This, of course, is directly at odds with the court’s earlier pronouncement
       that the theory for the independent felonious purpose rule was “not novel” at the time of
       defendant’s direct appeal and therefore was available and could have been raised. This makes
       no sense. Either the rule existed and was available at the time of defendant’s direct appeal
       or it was not. The court cannot have it both ways.
¶ 54        Defendant argues that to hold as the court does today leaves him without a remedy. To
       this, the court responds as follows:
                “[A]lthough defendant is correct that a proper application of the forfeiture doctrine

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                leaves him without a remedy, the limited scope of postconviction review compels
                this result where, as here, defendant failed to raise his claim on direct appeal when
                he had the chance.” Supra ¶ 37.
       The court’s analysis essentially tells us that while defendant should have raised his argument
       on direct review because it was not novel and was therefore available, his counsel was not
       deficient for failing to predict the novel analysis that was to come in Morgan. This kind of
       logic harkens back to the days, prior to the enactment of the Post-Conviction Hearing Act,
       when Illinois was widely criticized for procedurally hamstringing criminal defendants who
       sought collateral review. See Marino v. Ragen, 332 U.S. 561, 569-70 (1947) (per curiam)
       (Rutledge, J., concurring, joined by Douglas and Murphy, JJ.) (noting “[e]xperience has
       shown beyond all doubt that, in any practical sense, the remedies available [in Illinois] are
       inadequate. Whether this is true because in fact no remedy exists, or because every remedy
       is so limited as to be inadequate, or because the procedural problem of selecting the proper
       one is so difficult, is beside the point.”).
¶ 55        The legislature created the postconviction remedy in response to this and other criticisms
       regarding the available methods by which a judgment of conviction could be attacked in
       Illinois. See People v. Slaughter, 39 Ill. 2d 278 (1968); People v. Erickson, 161 Ill. 2d 82,
       107 (1994) (McMorrow, J., dissenting, joined by Harrison, J.). The Act was designed to
       afford an appropriate remedy for one who asserts that a conviction was obtained in
       proceedings in which there was a denial of his or her rights under the federal constitution or
       the Illinois Constitution. People v. Morris, 3 Ill. 2d 437, 443-44 (1954). The court’s
       treatment of these two claims amounts to nothing more than a “gotcha,” which leaves
       defendant in a procedural quandary that is at odds with the legislature’s intent in enacting this
       statutory remedy. Accordingly, I could not join in the opinion even if I were to conclude the
       independent felonious purpose rule claim is cognizable.
¶ 56        So far, both of the criticisms I have of today’s opinion stem from the court’s failure to
       accept the State’s initial argument that the independent felonious purpose rule claim is
       statutory, not constitutional, and therefore may not be raised on postconviction review. These
       criticisms can be averted by resolving the independent felonious purpose claim on the
       cognizability grounds advanced by the State. In that way, the State’s forfeiture argument need
       not be addressed and the court’s problematic and inconsistent treatment of both this claim
       and the ineffective assistance of appellate counsel claim is avoided. I would therefore hold
       that defendant’s claim regarding the independent felonious purpose rule is not cognizable on
       postconviction review. Therefore, the circuit court correctly denied relief as to that claim.
¶ 57        This leaves only defendant’s ineffective assistance of appellate counsel claim, which I
       would reject on the basis that counsel’s performance was not deficient. Claims of this nature
       are measured against the same standard as those dealing with ineffective assistance of trial
       counsel. People v. Whitehead, 169 Ill. 2d 355, 381 (1996); People v. Coleman, 168 Ill. 2d
       509, 523 (1995); People v. Foster, 168 Ill. 2d 465, 474-75 (1995). A defendant who contends
       that appellate counsel rendered ineffective assistance must show that the failure to raise the
       issue was objectively unreasonable and that the decision prejudiced the defendant. People
       v. Flores, 153 Ill. 2d 264, 283 (1992).


                                                 -13-
¶ 58       The United States Supreme Court has noted that the Strickland performance standard
       does not require an attorney to raise every nonfrivolous issue on appeal. See Jones v. Barnes,
       463 U.S. 745, 751 (1983). Indeed, the process of “ ‘winnowing out weaker arguments on
       appeal and focusing on’ those more likely to prevail *** is the hallmark of effective appellate
       advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52).
       As the Court has observed, it is difficult to demonstrate that an appellate attorney has
       violated the performance prong where the attorney presents one argument on appeal rather
       than another. Smith v. Robbins, 528 U.S. 259, 288 (2000). In such cases, a defendant must
       demonstrate that the issue not presented “was clearly stronger than issues that counsel did
       present.” Id. at 288. Here, I agree with the court that appellate counsel was not deficient in
       his performance for failing to predict that this court would endorse the independent felonious
       purpose rule. This is particularly so here where appellate counsel chose to forgo the argument
       in favor of a successful argument that saw defendant’s sentence of natural life reduced to a
       50-year term. Accordingly, the circuit court correctly denied this claim as well.
¶ 59       My final comment on today’s opinion concerns a matter of procedure under the Act. The
       court notes that there was a “third stage hearing” in this case and that the judge presiding
       over the hearing “did not preside over defendant’s trial and, thus, had no special expertise
       or familiarity with defendant’s trial.” Supra ¶ 24. The court then states that because of these
       facts, the standard of review is de novo. Id.
¶ 60       Unfortunately, none of these observations are accurate. While the Act does, of course,
       allow for evidentiary hearings to be held at the third stage of a postconviction proceeding
       (see 725 ILCS 5/122-6 (West 2004) (allowing circuit court to receive proof by oral
       testimony)), no such hearing was held in this case. Rather, after the State’s motion to dismiss
       the petition was denied, the State filed an answer that contained purely legal arguments, and
       defendant filed a response to the answer, also containing pure legal arguments. At that point,
       the circuit court scheduled a court date at which time both attorneys argued their points of
       law to the judge. Thus, the case was decided by the circuit court at the second stage on the
       pleadings and transcripts from the original trial alone. It is for this reason that de novo review
       is appropriate—that is the correct standard a court of review will apply on appeal of a trial
       court’s legal determination made on the pleadings. Also, the fact that the judge did not
       preside over the original trial has no relevance to the standard of review employed. My
       comments on this matter are intended only to put a more precise point on the procedural
       posture in which this case comes before us so as to clarify the proper procedural practice
       under the Act for both bench and bar.

¶ 61       JUSTICE BURKE joins in this special concurrence.




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