                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Milam, 2012 IL App (1st) 100832




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



District & No.             First District, Sixth Division
                           Docket No. 1-10-0832


Filed                      May 18, 2012
Rehearing denied           September 5, 2012


Held                       The dismissal of defendant’s amended postconviction petition at the
(Note: This syllabus       second stage of the proceedings was reversed and the cause was
constitutes no part of     remanded with directions to conduct a second-stage evaluation after
the opinion of the court   allowing defendant to amend his amended petition to assert a claim of
but has been prepared      ineffective assistance of his appellate counsel which prevented the trial
by the Reporter of         court from considering the claim that his trial counsel was not allowed to
Decisions for the          see him at the time he was signing a confession, since the failure of
convenience of the         defendant’s postconviction counsel to make a “routine amendment” to the
reader.)
                           postconviction petition that would have presented defendant’s claim in
                           an appropriate legal form placed defendant in the same position he would
                           have been in if the claim had not been raised at all.


Decision Under             Appeal from the Circuit Court of Cook County, No. 96-CR-13548; the
Review                     Hon. John Joseph Hynes, Judge, presiding.


Judgment                   Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Laura A. Weiler, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Brian
                           K. Hodes, and Sebastian Soto, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Presiding Justice R. Gordon and Justice Lampkin concurred in the
                           judgment and opinion.



                                             OPINION

¶1           Defendant Richard Milam appeals from the second-stage dismissal of his amended
        petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 to 122-8
        (West 2000). Defendant contends that postconviction counsel did not fulfill her duties under
        Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), because she failed to allege
        ineffective assistance of appellate counsel in the amended petition to overcome the
        procedural bar of waiver. We reverse and remand with instructions.

¶2                                          BACKGROUND
¶3          On May 23, 1996, defendant was charged with the first degree murder of his wife,
        Tammy Milam, who was stabbed to death on January 13, 1994. Before trial, defendant
        moved to suppress his confession, arguing, inter alia, that law enforcement personnel
        ignored his request for counsel and that his statement was procured by an act of delay by the
        authorities. The trial court held a hearing on the motion, where the evidence established that
        defendant was questioned on November 29, 1995, and on May 15, 1996, in connection with
        Tammy’s murder.
¶4          At the hearing, the State’s witnesses included Investigator Joseph Curtin and Assistant
        State’s Attorneys Thomas Dixon and James McCarter. According to their testimony, at both
        interviews Curtin asked defendant whether he was represented by an attorney and defendant
        replied he was not. On both dates Curtin also read defendant his Miranda rights and had
        defendant sign a form stating that he waived his rights. On May 15, 1996, defendant was
        interviewed at the courthouse, resulting in a confession. The confession was dictated to and
        written by Dixon and signed by defendant at 6:36 p.m. Curtin and Dixon both testified that
        defendant never asked for an attorney during the interview and neither was aware that an
        attorney was present at the courthouse until after the statement was signed. McCarter testified
        that at 6:30 p.m., Raymond Fabricius arrived at the courthouse and identified himself as
        defendant’s attorney. McCarter asked Fabricius for identification, made a copy of Fabricius’s

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       attorney registration card, then permitted Fabricius to see defendant. About 10 minutes
       passed between the time Fabricius arrived and when he saw defendant.
¶5          Raymond Fabricius and defendant testified that sometime between November 1995 and
       May 1996 defendant asked Fabricius to be present at any interrogations related to Tammy’s
       murder. At both interviews, defendant asked to have an attorney present and was denied by
       the investigators. He was never read his Miranda rights. At the May 15 interview, Curtin told
       defendant that signing the form waiving his Miranda rights was simply a formality and
       ignored defendant’s multiple requests for an attorney. Fabricius arrived at the courthouse and
       asked to see defendant at 6:32 p.m. He was told to wait. About 11 or 12 minutes later,
       McCarter asked Fabricius for a card and told him they were finishing up with defendant.
       Three minutes later, Fabricius was permitted to see defendant. Defendant had already signed
       the statement.
¶6          The trial court denied defendant’s motion.
¶7          The evidence at trial essentially established that on the evening of January 13, 1994, both
       defendant and Tammy Milam were stabbed. Defendant told the police that they were
       attacked by an assailant when they entered their van after going out to dinner. In the course
       of the investigation, police discovered that defendant and Tammy both used drugs, that they
       had been having domestic and financial problems, and that Tammy had various life insurance
       policies totaling over $100,000. Several witnesses testified that defendant was violent toward
       his wife on occasion. William Love testified that defendant had come to him with a plan to
       kill Tammy, but Love never followed through with it. Defendant later confessed to Love that
       he had stabbed Tammy.
¶8          The State also introduced defendant’s confession at trial, in which defendant stated, inter
       alia, that when Tammy opened the door to the van after dinner, a knife fell from inside the
       van to the ground. Tammy retrieved the knife and the couple began to argue. The argument
       escalated until Tammy stabbed defendant in the shoulder. Defendant then “lost it,” took the
       knife from Tammy and stabbed her two or three times.
¶9          The jury found defendant guilty of first degree murder. Defendant filed a posttrial motion
       in which he claimed, among other assertions, that the authorities improperly delayed his
       attorney’s attempt to speak with him. The trial court denied the motion and sentenced
       defendant to 55 years in prison.
¶ 10        On direct appeal, defendant asserted that the trial court erred in denying his motion to
       suppress because his confession was involuntary. Defendant specifically claimed that: (1) his
       confession was obtained after he requested the presence of counsel; (2) the waiver of his
       Miranda rights was obtained by trickery and deception; (3) his confession was procured
       following a violation of the Illinois Rules of Professional Conduct; and (4) his confession
       was obtained by threats and coercion. This court affirmed defendant’s conviction and
       sentence, finding that the trial court’s denial of his motion to suppress was not against the
       manifest weight of the evidence. People v. Milam, No. 1-98-2091 (2000) (unpublished order
       under Supreme Court Rule 23).
¶ 11        On May 2, 2001, defendant filed a pro se postconviction petition alleging ineffective
       assistance of trial counsel based on counsel’s failure to test evidence and call witnesses

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       material to the case. Defendant claimed that trial counsel refused defendant’s requests to test
       defendant’s clothing for DNA evidence. Defendant also claimed that trial counsel failed to
       call attorney Joseph Haddad as a witness. Defendant maintained that, if called, Haddad
       would have testified that in 1994 he represented defendant and had told Bridgeview
       detectives that if they needed to talk to defendant they should contact Haddad first. The trial
       court appointed counsel to represent defendant.
¶ 12       On January 19, 2007, appointed counsel filed what was ultimately considered to be an
       amended postconviction petition, a motion for forensic testing and a certificate pursuant to
       Rule 651(c). In the amended petition, counsel alleged that the untimely filing of the petition
       was not due to defendant’s culpable negligence. Counsel also alleged that defendant’s due
       process rights were violated when his attorney, Raymond Fabricius, was prevented from
       seeing defendant at the courthouse while defendant was signing the written confession.
¶ 13       In the motion for forensic testing, counsel specifically requested the DNA testing of
       defendant’s clothing from the night of the murder. Counsel also filed a motion for discovery
       to establish the chain of custody as to defendant’s clothing because the police reported they
       were unable to locate the clothing. The trial court ultimately granted both motions and the
       clothing was eventually located. The DNA test results showed that the blood on defendant’s
       clothing was that of either Tammy or defendant. The blood of a third party was not present.
¶ 14       In the Rule 651(c) certificate, appointed counsel stated that: (1) she had communicated
       with defendant by letter and phone to ascertain his claims; (2) she had examined the
       transcript of defendant’s trial and sentencing hearing; and (3) defendant’s pro se
       postconviction petition, together with the amended petition and motion for forensic testing
       filed by appointed counsel, adequately presented defendant’s claims.
¶ 15       On August 10, 2007, the State filed a motion to dismiss the petition, claiming that the
       petition was untimely and that the allegation regarding defendant’s attorney being prevented
       from seeing him was without merit and was procedurally barred.
¶ 16       On December 3, 2007, appointed counsel filed a response to the State’s motion to
       dismiss, again alleging defendant’s lack of culpable negligence. Counsel further contended
       that defendant’s due process claim was not procedurally barred by res judicata because one
       of the decisions she relied on in the amended petition was not issued until three years after
       defendant’s direct appeal. People v. Woods, 338 Ill. App. 3d 78, 87 (2003) (holding that
       refusing to tell a defendant that his attorney was present and denying the attorney access to
       the defendant violated the defendant’s constitutional rights).
¶ 17       On November 6, 2009, the trial court held a hearing on the motion to dismiss. At the
       hearing, appointed counsel informed the court that defendant was dropping the claims in his
       pro se petition and proceeding on the amended petition alone. Counsel acknowledged that
       the due process claim in the amended petition was not raised on appeal but argued that
       waiver should not apply because the case she relied upon in support of the claim, Woods, was
       decided after defendant’s direct appeal. However, the trial court pointed out that she had also
       relied on another case for the same issue which had been decided long before the direct
       appeal. See People v. McCauley, 163 Ill. 2d 414 (1994).
¶ 18       The trial court dismissed defendant’s petition in a written order. The court explained that

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       although it did not believe defendant had demonstrated he was free from culpable negligence
       in his untimely filed petition, it was hesitant to dismiss the petition on that basis given this
       court’s decision in People v. Wheeler, 392 Ill. App. 3d 303 (2009). As a result, the trial court
       did not dismiss the petition on the basis of untimeliness alone but did find that the claim in
       the petition was barred by res judicata. The court further found that, even if res judicata did
       not apply, defendant’s claim was barred by waiver because he could have raised it on direct
       appeal. Defendant appeals from the trial court’s order.

¶ 19                                          ANALYSIS
¶ 20        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2000))
       provides “a remedy for defendants who have suffered a substantial violation of their
       constitutional rights at trial.” People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). Under the
       Act, a postconviction proceeding in noncapital cases contains three stages. People v.
       Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the trial court has 90 days to
       review a defendant’s petition and may summarily dismiss the petition if the court finds it
       frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000); Pendleton, 223
       Ill. 2d at 472. If the trial court does not dismiss the petition within that 90-day period, the
       court must docket it for further consideration. 725 ILCS 5/122-2.1(b) (West 2000);
       Pendleton, 223 Ill. 2d at 472.
¶ 21        Here, defendant’s petition proceeded to the second stage. At the second stage of
       postconviction proceedings, counsel may be appointed for the defendant if the defendant is
       indigent. 725 ILCS 5/122-4 (West 2000); Pendleton, 223 Ill. 2d at 472. The right to
       postconviction counsel is statutory, not constitutional. 725 ILCS 5/122-4 (West 2000);
       People v. Thompson, 383 Ill. App. 3d 924, 931 (2008). The Act requires that postconviction
       counsel provide a reasonable level of assistance to a defendant. Thompson, 383 Ill. App. 3d
       at 931. Supreme Court Rule 651(c) imposes specific duties on postconviction counsel,
       requiring that counsel: (1) consult with the defendant to ascertain his contentions of
       constitutional deprivations; (2) examine the record of the trial proceedings; and (3) make any
       amendments to the pro se petition necessary to adequately present the defendant’s
       contentions. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984); People v. Suarez, 224 Ill. 2d 37, 42
       (2007).
¶ 22        After postconviction counsel has made any necessary amendments to the defendant’s
       petition, the State may move to dismiss it. 725 ILCS 5/122-5 (West 2000); Pendleton, 223
       Ill. 2d at 472. If the State moves to dismiss, the trial court may hold a hearing on the State’s
       motion. Pendleton, 223 Ill. 2d at 472-73. At the hearing, the trial court is foreclosed from
       engaging in any fact-finding and all well-pleaded facts that are not positively rebutted by the
       trial record are to be taken as true. Pendleton, 223 Ill. 2d at 473. If the State’s motion is
       denied, the State must answer the defendant’s petition and the proceeding then advances to
       the third stage, an evidentiary hearing where the defendant may present evidence in support
       of his petition. 725 ILCS 5/122-6 (West 2000); Pendleton, 223 Ill. 2d at 472-73.
¶ 23        Here the trial court dismissed defendant’s petition at the second stage of proceedings.
       The dismissal of a postconviction petition without an evidentiary hearing is reviewed de


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       novo. Suarez, 224 Ill. 2d at 42.
¶ 24        Defendant’s only argument on appeal is that postconviction counsel did not fulfill her
       duties under Rule 651(c) because she failed to allege ineffective assistance of appellate
       counsel in the amended petition to overcome the procedural bar of waiver. Before
       considering the merits of defendant’s argument, we first address two of the State’s
       contentions.
¶ 25        The State first contends that defendant’s claim is not a viable freestanding constitutional
       claim that can be heard on appeal because defendant does not attack the sufficiency of the
       Rule 651(c) certificate. See People v. Mendoza, 402 Ill. App. 3d 808, 816-17 (2010) (the
       defendant’s claim was improper on appeal where he made a general claim of unreasonable
       assistance of counsel but did not allege counsel’s failure to comply with Rule 651(c)). We
       disagree with the State and note that, here, defendant specifically invoked Rule 651(c) in
       making his claim of unreasonable assistance of counsel, asserting that his counsel did not
       adequately amend his petition in compliance with the rule.
¶ 26        The State also contends that, notwithstanding waiver, the trial court’s dismissal of
       defendant’s amended petition was primarily based on res judicata and that res judicata bars
       defendant’s due process claim. “The doctrine of res judicata bars consideration of issues that
       were previously raised and decided on direct appeal. People v. West, 187 Ill. 2d 418, 425
       (1999); accord Black’s Law Dictionary 1336-37 (8th ed. 2004) (‘res judicata is an issue that
       has been definitively settled by judicial decision’).” People v. Blair, 215 Ill. 2d 427, 443
       (2005). After reviewing our decision on direct appeal, we cannot say that defendant’s current
       due process claim as set forth in his amended petition was considered or decided by this
       court.
¶ 27        On direct appeal, defendant raised and we considered whether his confession was
       involuntary based on four specific arguments, including that: (1) his confession was obtained
       after he requested the presence of counsel; (2) the waiver of his Miranda rights was obtained
       by trickery and deception; (3) his confession was procured following a violation of the
       Illinois Rules of Professional Conduct; and (4) his confession was obtained by threats and
       coercion. In the amended petition, defendant argued that his confession was involuntary
       because his due process rights were violated when his attorney, Raymond Fabricius, was
       prevented from seeing him while he was signing the written confession. Although this claim
       pertains generally to whether defendant’s confession was voluntary, the broad issue
       addressed on appeal, the claim relies on facts and circumstances that were not considered by
       this court. Accordingly, defendant’s claim is not barred by the doctrine of res judicata and
       we consider whether postconviction counsel provided a reasonable level of assistance to
       defendant.
¶ 28        As mentioned, Rule 651(c) requires postconviction counsel to: (1) consult with the
       defendant to ascertain his contentions of constitutional deprivations; (2) examine the record
       of the trial proceedings; and (3) make any amendments to the pro se petition necessary to
       adequately present the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984);
       Suarez, 224 Ill. 2d at 42.
¶ 29        Defendant argues that postconviction counsel’s failure to allege ineffective assistance of


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       appellate counsel in the amended petition to avoid waiver of the due process claim violated
       Rule 651(c). The State responds that Rule 651(c) only requires postconviction counsel to
       adequately present the claims in defendant’s pro se petition and that this requirement does
       not apply where, as here, counsel raises a new claim on defendant’s behalf. Defendant
       initially replies that postconviction counsel did not raise a new claim in the amended petition
       but merely presented one of the original claims from defendant’s pro se petition in proper
       legal form.
¶ 30        In the pro se petition, defendant alleged that his trial counsel was ineffective for failing
       to call attorney Joseph Haddad to testify at the suppression hearing. Specifically, defendant
       claimed:
            “In 1994, attorney Joseph Haddad, who was retained by [defendant], contacted
            Bridgeview detectives to inform them that he was, in fact, [defendant’s] attorney and that
            if they wished to speak to him or if they needed him for anything that they should contact
            him first. *** At the time [defendant] was taken into custody and taken to the police
            station, he was represented by Mr. Haddad. Bridgeview detectives were well aware of
            this fact.”
       At oral argument in this court, defendant argued that this language, interpreted liberally (see
       Edwards, 197 Ill. 2d at 244 (petitions filed pro se should be given a liberal construction)),
       could be construed as a claim that defendant’s waiver of his right to an attorney was not valid
       where Fabricius was delayed from seeing defendant until after he signed the confession.
¶ 31        Although both claims arguably pertain to whether defendant’s confession was voluntary,
       each relies on a different legal theory and set of facts. In the pro se petition, defendant
       alleged that detectives knew he was represented by attorney Haddad at the time they
       interrogated defendant and should have contacted Haddad before the interrogation. In the
       amended petition, however, postconviction counsel alleged that attorney Fabricius, not
       Haddad, went to the courthouse at 6:30 p.m. and attempted to see defendant but was delayed
       by Assistant State’s Attorney McCarter for about 12 minutes. During that time defendant
       signed the statement. Even after liberally construing the claim in defendant’s pro se petition,
       we cannot say that these two claims are the same. Accordingly, we agree with the State that
       postconviction counsel raised a new claim that was not included in defendant’s pro se
       petition.
¶ 32        Relying on People v. Turner, 187 Ill. 2d 406 (1999), defendant still argues that
       postconviction counsel failed to adequately present this new claim. Defendant claims that,
       as in Turner, counsel’s failure to amend the petition to allege ineffective assistance of
       appellate counsel to avoid the procedural bar of waiver amounted to inadequate
       representation. The State responds that Turner is distinguishable from this case because in
       Turner, counsel failed to allege ineffective assistance of appellate counsel to overcome
       waiver of one of the defendant’s pro se claims, not a new claim advanced by postconviction
       counsel. The State maintains that in this case postconviction counsel more than fulfilled her
       obligations under Rule 651(c) when she went beyond the requirements of the rule and
       advanced a new claim on defendant’s behalf.
¶ 33        Under Rule 651(c) there is no requirement that postconviction counsel must amend a


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       defendant’s pro se petition or scour the record to uncover claims that were not raised by the
       defendant. See Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984); People v. Rials, 345 Ill. App. 3d 636,
       641 (2003). However, as mentioned, Rule 651(c) requires that postconviction counsel make
       any amendments to the pro se petition necessary to adequately present the defendant’s
       contentions. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984); Turner, 187 Ill. 2d at 412. To that end,
       postconviction counsel must shape the defendant’s pro se claims into “appropriate legal
       form.” People v. Johnson, 154 Ill. 2d 227, 237-38 (1993).
¶ 34       In Turner, a capital case, the defendant’s appointed postconviction counsel did not file
       an amended postconviction petition but instead elected to stand on the defendant’s pro se
       petition. Turner, 187 Ill. 2d at 409. The trial court granted the State’s motion to dismiss the
       defendant’s petition without an evidentiary hearing, finding the claims in the petition were
       barred by res judicata or waived because the claims could have been raised on direct appeal
       but were not. Turner, 187 Ill. 2d at 409. The defendant appealed, contending that his
       postconviction counsel’s failure to make any amendments to the pro se petition violated Rule
       651(c). Turner, 187 Ill. 2d at 412.
¶ 35       Our supreme court agreed, after finding that postconviction counsel failed to make a
       “routine amendment” to the postconviction petition to include a claim of ineffective
       assistance of appellate counsel which would have overcome the procedural bar of waiver.
       Turner, 187 Ill. 2d at 413. In doing so, the court in Turner noted the ease with which a
       defendant may evade the operation of waiver by simply arguing ineffective assistance of
       appellate counsel. Turner, 187 Ill. 2d at 413. The court pointed out that postconviction
       counsel’s failure to raise this argument “prevented the circuit court from considering the
       merits of [defendant’s] claims and directly contributed to the dismissal of the petition
       without an evidentiary hearing.” Turner, 187 Ill. 2d at 413. The court in Turner also found
       that postconviction counsel elected to stand on a pro se petition which contained virtually
       no evidentiary support and failed to attach any affidavits in support of the defendant’s claims
       or offer any explanation for their absence. Turner, 187 Ill. 2d at 414. Given the “totality of
       circumstances,” the Turner court concluded that postconviction counsel’s performance was
       unreasonable and fell below the level of assistance required by Rule 651(c). Turner, 187 Ill.
       2d at 414. The court reversed the judgment of the trial court and remanded the matter with
       instruction that the trial court “evaluate the claims in [defendant’s] post-conviction petition
       once [defendant’s] counsel has made any amendments to the petition which are necessary
       for an adequate presentation of [defendant’s] contentions.” Turner, 187 Ill. 2d at 417 (citing
       Johnson, 154 Ill. 2d at 249).
¶ 36       Here, unlike Turner, postconviction counsel filed an amended petition that alleged a new
       due process claim and included legal citations and evidentiary support. However, as in
       Turner, counsel failed to amend the petition to allege ineffective assistance of appellate
       counsel which prevented the trial court from considering the merits of defendant’s claim and
       directly contributed to the dismissal of the petition without an evidentiary hearing. Turner,
       187 Ill. 2d at 413. Counsel’s failure to allege ineffective assistance of appellate counsel
       essentially amounted to a failure to present the due process claim in “appropriate legal form”
       and placed defendant in the same position he would have found himself in had counsel not
       raised the claim at all. The record shows defendant dropped the claims in his pro se petition

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       and proceeded solely on counsel’s amended petition and the due process claim contained
       therein. Although counsel’s conduct in this case is readily distinguishable from the “total
       failure of representation” found in Turner, the result for defendant is the same: the merits of
       his petition were never reached by the trial court. Given this result and that defendant relied
       on postconviction counsel, we believe it is improper to affirm the dismissal of defendant’s
       petition because of counsel’s failure to make a “routine amendment” that would have
       presented his claim in the appropriate legal form. Rather, defendant must be afforded an
       opportunity to amend his petition to overcome the procedural bar of waiver. See Turner, 187
       Ill. 2d at 417.
¶ 37        In support of this conclusion, we note that “in the case of post-conviction counsel’s
       failure to overcome the procedural bar of waiver, the prejudice to petitioner is palpable.”
       Turner, 187 Ill. 2d at 415. This is especially so where, as here, defendant’s claim that his
       attorney Fabricius was delayed from seeing him is supported by some evidence. Fabricius
       testified at the suppression hearing that he was delayed from seeing defendant for about 10
       minutes, during which time defendant signed the written confession. Defendant was not
       informed that his attorney was at the courthouse until after he signed the confession. See
       People v. McCauley, 163 Ill. 2d 414, 446 (1994) (when a defendant’s attorney is delayed
       from seeing him, the defendant is “denied information necessary to knowingly and
       intelligently waive his right to his attorney’s presence”).
¶ 38        As a final matter, we reiterate that we express no opinion on the merit of defendant’s
       claim or whether an evidentiary hearing on his claim would be appropriate in this case. See
       Johnson, 154 Ill. 2d at 246 (it is the duty of the trial court, not a reviewing court, to
       determine on the basis of a complete record whether the postconviction claim requires an
       evidentiary hearing).

¶ 39                                      CONCLUSION
¶ 40       For the reasons stated, we reverse the judgment of the trial court dismissing defendant’s
       amended petition. The matter is remanded to the trial court with directions to conduct a
       second-stage evaluation after allowing defendant leave to amend his amended petition to
       assert a claim of ineffective assistance of appellate counsel. Turner, 187 Ill. 2d at 417.

¶ 41      Reversed and remanded with directions.




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