2023 IL App (2d) 220238-U 

No. 2-22-0238 

Order filed May 19, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Lake County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 16-CF-1168 

) 

SURGENE J. CABELL, ) Honorable 

) Mark L. Levitt, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE BIRKETT delivered the judgment of the court.

Justices Hutchinson and Kennedy concurred in the judgment.

ORDER

¶ 1 Held: Counsel on direct appeal was not ineffective for failing to argue that the offense of 

aggravated kidnapping by confinement was merely incidental to the domestic 

battery of which defendant was also convicted. First, we would have lacked 

jurisdiction on direct appeal to address that issue, because the aggravated 

kidnapping by confinement was merged into another aggravated kidnapping 

conviction and no sentence was imposed on the former. Second, there would have 

been no merit to the claim because, under the governing four-factor test, the 

aggravated kidnapping by confinement was not part and parcel of the battery but 

was a distinct act that posed a significant danger to the victim independent of the 

battery.

¶ 2 Defendant, Surgene J. Cabell, appeals from the second-stage dismissal of his petition under 

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He contends that 
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he made a substantial showing that his counsel on direct appeal was ineffective. Because appellate 

counsel’s conduct did not prejudice defendant, we affirm.

¶ 3 I. BACKGROUND

¶ 4 The State indicted defendant on two counts of domestic battery based on punching the 

victim (720 ILCS 5/12-3.2(a)(2) (West 2016)), two counts of domestic battery based on grabbing 

the victim’s neck (720 ILCS 5/12-3.2(a)(2) (West 2016)), one count of aggravated domestic 

battery based on strangulation (720 ILCS 5/12-3.3(a-5) (West 2016)), one count of aggravated 

kidnapping based on secretly confining the victim (720 ILCS 5/10-1(a)(1); 10-2(a)(3) (West 

2016)), and one count of aggravated kidnapping based on carrying the victim from one place to 

another to secretly confine her (720 ILCS 5/10-1(a)(2); 10-2(a)(3) (West 2016)). 

¶ 5 Because our order in defendant’s direct appeal detailed the facts developed at his bench 

trial (see People v. Cabell, 2019 IL App (2d) 170436-U), we only briefly review those facts as 

they relate to the issue raised in this appeal. The victim’s testimony and surveillance video from 

her workplace, where the incident occurred, established the following. The victim was defendant’s

live-in girlfriend. He went to her workplace, where they argued in a hallway. The argument 

became a physical altercation. Defendant pinned the victim to the wall, and, after they fell to the 

floor, he punched her twice. He then grabbed the victim by her hair and dragged her into a nearby 

bathroom. The door closed behind them. About a minute later, they opened the door and left the 

bathroom. 

¶ 6 The victim testified that, inside the bathroom, defendant bit her arm and stepped on her 

hand. She denied that defendant choked her. Although she admitted that she kicked the wall inside 

the bathroom, she claimed that she did so to get defendant to stop. She admitted that, in her signed 

statement to the police, she said that defendant choked her while in the bathroom. She further 
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admitted telling emergency room personnel that defendant had choked her. On cross-examination, 

the victim testified that the bathroom door had a lock but was unlocked while she and defendant 

were inside. According to the victim, she could have left the bathroom at any time and defendant 

never prevented her from doing so.

¶ 7 According to defendant, he went into the bathroom with the victim to apologize and stop 

their fighting. He denied locking the door or preventing her from leaving. He denied choking the 

victim or hurting her while in the bathroom. According to defendant, the victim wanted them to 

go into the bathroom.

¶ 8 The victim’s coworker testified that she heard banging outside her office. When she went 

into the hallway to investigate, she heard a female screaming and crying in the bathroom. After 

directing another employee to call 911, she knocked on the bathroom door. As she did so, a large 

man exited and walked toward the elevator. When she looked inside the bathroom, she saw the 

victim leaning against the sink and crying. She was bleeding from the side of her neck.

¶ 9 The trial court directed a not-guilty finding on aggravated domestic battery but found 

defendant guilty of all remaining counts. The court merged the four domestic-battery convictions 

into one, merged the aggravated-kidnapping conviction based on confinement into the aggravatedkidnapping conviction based on asportation , and sentenced defendant to concurrent prison terms 

of 7 years and 14 years, respectively.

¶ 10 On direct appeal, defendant contended only that he was not proved guilty beyond a 

reasonable doubt of aggravated kidnapping, because (1) the evidence did not establish that he 

either secretly confined the victim or intended to do so, and (2) the kidnapping based on asportation 

of the victim was merely incidental to the domestic battery. People v. Cabell, 2019 IL App (2d) 

170436-U, ¶ 21. We rejected those contentions and affirmed. Cabell, 2019 IL App (2d) 170436-
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U, ¶ 38. In doing so, we noted that defendant did not also contend that the aggravated kidnapping 

based on confinement was merely incidental to the domestic battery; thus, he forfeited the issue. 

Cabell, 2019 IL App (2d) 170436-U, ¶ 35 n.1 (citing Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)).

¶ 11 Subsequently, defendant filed a postconviction petition under the Act. Among other 

claims, he alleged that his counsel on direct appeal was ineffective for failing to argue that the 

aggravated kidnapping by confinement was merely incidental to the domestic battery. The trial 

court advanced the petition to the second stage and appointed counsel. The State filed a motion to 

dismiss. Following a hearing, the court granted the State’s motion and dismissed the petition. 

Defendant, in turn, filed this timely appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that his petition should not have been dismissed, because 

he made a substantial showing that appellate counsel was ineffective for failing to argue that the 

aggravated kidnapping by confinement was merely incidental to the domestic battery.

¶ 14 The Act allows a criminal defendant to raise a claim that his conviction resulted from a 

substantial violation of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2020). The Act 

establishes a three-stage process for the adjudication of a postconviction petition. People v. 

English, 2013 IL 112890, ¶ 23. If a petition is not summarily dismissed at the first stage, it 

advances to the second stage, where an indigent petitioner can obtain appointed counsel, and the 

State can move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2020). If a 

petitioner makes a substantial showing of a constitutional violation, the petition advances to the 

third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2020).

¶ 15 At the second stage, dismissal is warranted only when the allegations in the petition, 

liberally construed in light of the trial record, fail to make a substantial showing of a constitutional 
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violation. People v. Hall, 217 Ill. 2d 324, 334 (2005). We accept as true all factual allegations not 

positively rebutted by the record (People v. Childress, 191 Ill. 2d 168, 174 (2000)) and review 

de novo the second-stage dismissal of a petition (Hall, 217 Ill. 2d at 334). We may affirm the 

second-stage dismissal of a postconviction petition on any basis shown in the record. People v. 

Davis, 382 Ill. App. 3d 701, 706 (2008).

¶ 16 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) 

counsel’s performance fell below an objective standard of reasonableness and (2) the deficient 

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish prejudice, the defendant must show a reasonable probability that, but for counsel’s 

deficient performance, the result of the proceeding would have been different. People v. Phillips, 

2017 IL App (4th) 160557, ¶ 57. The failure to satisfy either Strickland prong precludes a finding 

of ineffective assistance of counsel. People v. Houston, 226 Ill. 2d 135, 144-45 (2007). We 

measure claims of ineffective assistance of appellate counsel by the same standard as those dealing 

with trial counsel. Childress, 191 Ill. 2d at 175. Unless the underlying issue is meritorious, the 

defendant suffers no prejudice from counsel’s failure to raise the issue on direct appeal. Phillips, 

2017 IL App (4th) 160557, ¶ 66.

¶ 17 We begin with the prejudice prong. The State asserts that defendant did not suffer any 

prejudice from appellate counsel’s failure to argue that the aggravated kidnapping by confinement 

was merely incidental to the domestic battery. The State reasons that this court would have lacked 

jurisdiction on direct appeal to review the conviction of aggravated kidnapping by confinement. 

We agree. 

¶ 18 In People v. Olaska, 2017 IL App (2d) 150567, ¶ 113, we held that we lacked jurisdiction 

to review two felony-murder convictions, because the trial court had merged them into another 
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first-degree murder conviction and did not impose any sentence on the felony-murder convictions. 

In doing so, we relied on the supreme court’s decision in People v. Cabarello, 102 Ill. 2d 23 (1984). 

Olaska, 2017 IL (2d) 150567, ¶ 113. In Cabarello, the supreme court held that it had no 

jurisdiction to consider whether the defendant’s armed-violence convictions were improper, 

because the trial court never sentenced him on those convictions. Cabarello, 102 Ill. 2d at 51. 

Thus, we concluded in Olaska that, under Cabarello, we had no jurisdiction over the merged 

felony-murder convictions because the trial court did not impose a sentence on those convictions. 

Olaska, 2017 IL App (2d) 150567, ¶ 113. We further noted that neither People v. Dixon, 91 Ill. 

2d 346, 354 (1982), nor People v. Scott, 69 Ill. 2d 85, 88 (1977)—both of which affirm the 

authority of a reviewing court to remand for sentencing on an unsentenced conviction—could be 

read to suggest that a reviewing court has jurisdiction to review the merits of an unsentenced 

conviction. Olaska, 2017 IL App (2d) 150567, ¶ 114; see also People v. Relerford, 2017 IL 

121094, ¶¶ 74-75 (distinguishing Dixon and holding that the appellate court lacked jurisdiction to 

consider the merits of the defendant’s unsentenced convictions).

¶ 19 Here, defendant’s conviction of aggravated kidnapping by confinement was merged into 

his conviction of aggravated kidnapping by asportation. As such, the trial court did not impose a 

sentence for aggravated kidnapping by confinement; therefore, we lacked jurisdiction on direct 

appeal to consider any challenge to the merits of that kidnapping conviction. Accordingly, 

appellate counsel did not prejudice defendant by failing to challenge the conviction of aggravated 

kidnapping by confinement as merely incidental to the domestic battery. Thus, defendant’s 
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postconviction petition made no substantial showing of ineffective assistance of appellate counsel 

and was properly dismissed.1

 

¶ 20 Alternatively, even if we had jurisdiction on direct appeal to consider a claim that the 

conviction of aggravated kidnapping by confinement was improper because that offense was 

merely incidental to the domestic battery, there would have been no merit to the claim. Thus, 

appellate counsel’s failure to raise the claim on direct appeal still did not prejudice defendant. See 

Phillips, 2017 IL App (4th) 160557, ¶ 66. 

¶ 21 The supreme court has identified four factors to apply to determine whether a confinement 

is merely incidental to another offense or rises to the level of the independent offense of 

kidnapping. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). Those factors are (1) the 

duration of the confinement, (2) whether the confinement occurred during the commission of the 

separate offense, (3) whether the confinement was inherent in the separate offense, and (4) whether 

the confinement created a significant danger to the victim independent of that posed by the separate 

offense. Siguenza-Brito, 235 Ill. 2d at 225-26. On direct review we considered the four SiguenzaBrito factors and rejected defendant’s argument that the asportation of Brown was merely 

incidental to the offense of domestic battery. 2019 IL App (2d) 170436-U. ¶¶ 29-35. Our reasoning 

applies with equal force to confinement.

1

We acknowledge that, on direct appeal, we did address a different challenge to aggravated 

kidnapping by confinement. However, we simply failed to recognize our lack of jurisdiction to do 

so.
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¶ 22 For the foregoing reasons, defendant did not make a substantial showing that his appellate 

counsel was ineffective. Thus, the trial court did not err in dismissing the postconviction petition 

at the second stage.

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Lake County. 

¶ 25 Affirmed. 

¶ 26