2022 IL App (4th) 210373-U 

NO. 4-21-0373 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

DEMARIEL T. CUNNINGHAM, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Macon County 

No. 17CF565 

Honorable 

Jeffrey S. Geisler, 

Judge Presiding.

 

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justices Harris and Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to 

withdraw as counsel and affirmed the circuit court’s judgment as no issue of 

arguable merit could be raised on appeal.

¶ 2 Defendant, Demariel T. Cunningham, appeals from the trial court’s summary 

dismissal of his postconviction petition. On appeal, the Office of the State Appellate Defender 

(OSAD) moves to withdraw as counsel on the ground no issue of arguable merit can be raised.

We grant OSAD’s motion and affirm the trial court’s judgment.

¶ 3 I. BACKGROUND

¶ 4 On direct appeal, this court set forth all relevant facts in this case. See People v. 

Cunningham, 2020 IL App (4th) 180338-U. Accordingly, we recite only those facts relevant to 

resolve the issues involved in this appeal.

FILED

June 27, 2022

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
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¶ 5 In December 2017, the State proceeded to trial on charges of aggravated battery 

(720 ILCS 5/12-3.05(a)(1) (West 2016)), aggravated criminal sexual assault (id.

§§ 11-1.30(a)(1), (a)(2)), aggravated unlawful restraint (id. § 10-3.1(a)), and armed violence (id.

§ 33A-2(a)). These charges stemmed from an incident occurring in April 2017 at the home of 

defendant’s uncle, Charles Hill. The complaining witness, M.M., expanded her claims over time, 

then partially recanted them at trial.

¶ 6 At trial, M.M. testified in April 2017, she was in a romantic relationship with 

defendant. M.M. stole defendant’s watch and hid it in a bedroom at Hill’s house, where the pair 

were staying. M.M. testified she and defendant had consensual sex, but defendant “slashed” her 

and burned her after she failed to locate the watch. Hill, who M.M. testified was smoking crack 

cocaine at the time of the incident, threatened to kill M.M., struck her repeatedly, and ultimately 

knocked her unconscious with a baseball bat. M.M. acknowledged her statements at trial 

conflicted with what she told Detective Jeremy Appenzeller.

¶ 7 Hill testified for the State. He acknowledged he entered into an agreement with 

the State in which he would testify truthfully against defendant and plead guilty to aggravated 

battery in exchange for a three-and-a-half year prison sentence. Hill testified defendant 

repeatedly struck M.M. and instructed Hill to tie M.M. up. At one point, defendant went to the 

kitchen and heated a knife on the stove. Defendant burned M.M. with a knife and a screwdriver. 

After his interview in August 2017, Hill asked his wife to give Detective Appenzeller the knife 

used against M.M. Hill identified the knife in a photograph, which was admitted into evidence 

and published to the jury.

¶ 8 The jury found defendant guilty of one count each of aggravated battery (id.

§ 12-3.05(a)(1)) and aggravated unlawful restraint (id. § 10-3.1(a)) and two counts each of
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aggravated criminal sexual assault (id. §§ 11-1.30(a)(1), (a)(2)) and armed violence (id.

§§ 33A-2(a)).

¶ 9 The trial court merged defendant’s aggravated criminal sexual assault convictions 

and sentenced defendant to two consecutive sentences of 25 years’ imprisonment and three 

concurrent sentences of 10 years’ imprisonment. 

¶ 10 Defendant appealed his conviction and this court affirmed. See Cunningham, 

2020 IL App (4th) 180338-U. 

¶ 11 On May 7, 2021, defendant filed a petition for postconviction relief pursuant to 

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). In his petition, 

defendant argued he received (1) ineffective assistance of trial counsel where counsel failed to 

file a motion to suppress evidence, namely, the knife and (2) ineffective assistance of appellate 

counsel for not bringing this claim on direct appeal.

¶ 12 On June 9, 2021, the trial court entered a written order summarily dismissing 

defendant’s postconviction petition. In its order, the court stated, “The Court does not find any 

legal basis for suppression of the knife.” The court dismissed defendant’s petition as frivolous 

and patently without merit.

¶ 13 Defendant appealed the trial court’s summary dismissal of his postconviction 

petition, and OSAD was appointed to represent him on appeal. In November 2021, OSAD 

moved to withdraw as counsel on appeal. We granted defendant leave to file a response to 

OSAD’s motion on or before December 29, 2021. Defendant has not done so.

¶ 14 II. ANALYSIS

¶ 15 OSAD contends no meritorious argument can be made the trial court erred in 

summarily dismissing defendant’s postconviction petition. We agree.
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¶ 16 The Act provides a mechanism for a criminal defendant to challenge his 

conviction or sentence based on a substantial violation of federal or state constitutional rights. 

People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1074-75 (2010). Proceedings under the 

Act are collateral in nature and not an appeal from the defendant’s conviction or sentence. 

People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. At the first stage of proceedings, the 

trial court must, within 90 days and without seeking or relying on input from the State, 

summarily dismiss the petition if it determines the petition is frivolous or patently without merit, 

meaning “the petition has no arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 

2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). See also 725 ILCS 5/122-2.1(a)(2) (West 2020); 

People v. Gaultney, 174 Ill. 2d 410, 419, 675 N.E.2d 102, 107 (1996). We review the trial court’s 

summary dismissal of a postconviction petition de novo. People v. Edwards, 197 Ill. 2d 239, 247, 

757 N.E.2d 442, 447 (2001). 

¶ 17 OSAD asserts it can make no colorable argument the trial court procedurally erred 

in summarily dismissing defendant’s postconviction petition at the first stage. The trial court 

entered its written order on June 9, 2021, well within the 90-day period allotted by the Act and 

without input by the State. Accordingly, we agree with OSAD it is not arguable the trial court 

procedurally erred in dismissing defendant’s petition.

¶ 18 OSAD further asserts it can make no colorable argument in support of defendant’s 

claim of ineffective assistance of trial counsel. To demonstrate ineffective assistance of counsel, a 

defendant must show counsel’s (1) performance fell below an objective standard of reasonableness 

and (2) deficient performance resulted in prejudice to the defendant such that, but for counsel’s 

errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 688, 694 (1984). If a defendant fails to prove either prong of the Strickland test, his claim for 
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ineffective assistance of counsel must fail. People v. Sanchez, 169 Ill. 2d 472, 487, 662 N.E.2d 

1199, 1208 (1996). In the context of postconviction proceedings, “a petition alleging ineffective 

assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell 

below an objective standard of reasonableness and (ii) it is arguable that the defendant was 

prejudiced.” (Emphasis added.) Hodges, 234 Ill. 2d at 17.

¶ 19 “In order to establish prejudice resulting from failure to file a motion to suppress, 

a defendant must show a reasonable probability that: (1) the motion would have been granted, 

and (2) the outcome of the trial would have been different had the evidence been suppressed.”

People v. Patterson, 217 Ill. 2d 407, 438, 841 N.E.2d 889, 907 (2005). The failure to file a 

motion to suppress does not establish ineffective assistance when the motion would have been 

futile. Id.

¶ 20 Defendant’s postconviction petition does not indicate on what basis trial counsel 

should have filed a motion to suppress. The record does not reveal one. The knife in question 

was not subject to a search, furnished to police officers by Hill’s wife at his request, and properly 

admitted at trial. Defendant’s argument counsel was ineffective for failing to file a motion to 

suppress this evidence is frivolous. Accordingly, we agree with OSAD it is not arguable 

defendant was denied the effective assistance of trial counsel. 

¶ 21 As we have already determined it is not arguable trial counsel was ineffective for 

failing to file a motion to suppress, it follows appellate counsel cannot be ineffective for failing 

to bring defendant’s meritless claim on direct appeal.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we agree no meritorious issue can be raised on appeal. We 

grant counsel’s motion to withdraw as appellate counsel and affirm the trial court’s judgment. 
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¶ 24 Affirmed.