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,

. 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 1-15-0836

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,

, ¶¶ 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.”

.

¶ 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.

. 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,

(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,

. 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,

(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,

(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,

(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.

.

¶ 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,

(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,

(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,

(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.

. 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,

(1988);

Taylor,

(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,

, 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,

(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,

. 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,

.

¶ 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,

(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,

(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,

(1984)

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

adversarial testing); see, e.g., People v. Morris,

(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,

.

¶ 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.

¶ 24 (citing Strickland v. Washington,

(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,

.

¶ 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,

. 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.

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,

; People v.

Richmond,

(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,

.

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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,

(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.”

.

¶ 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,

(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,

, 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,

(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,

(Colo. 2007) (en banc); Iovieno v. Commissioner of Correction,

(Conn. 1997); Stovall v. State,

(Md. Ct. Spec. App.

2002); Johnson v. State,

(N.D.. 2004); Jackson v. Weber,

(S.D. 2001); Menzies v. Galetka,

(Utah 2006). Still more states use a

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

Grinols v. State,

(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,

(Iowa

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

counsel’s failures); Robertson v. State,

(Kan. 2009) (to show incompetence of

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collateral attack counsel, must show prejudice); Commonwealth v. Priovolos,

(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,

(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,

(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,

.

¶ 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.

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,

, ¶ 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,

, ¶ 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,

(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,

, ¶¶ 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,

(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,

(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.

. 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.)

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,

; People v. Shamlodhiya,

. 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,

, ¶ 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.

. 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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