2024 IL App (1st) 230805-U

No. 1-23-0805 

Order filed August 30, 2024 

Second Division

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).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

DELANEY JARVIS, 

Defendant-Appellant. 

)

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the

Circuit Court of 

Cook County. 

No. 12 CR 18658 

Honorable 

Carl B. Boyd, 

Judge, presiding. 

JUSTICE COBBS delivered the judgment of the court. 

 Presiding Justice Howse and Justice McBride concurred in the judgment. 

ORDER

¶ 1 Held: We reverse the dismissal of defendant’s postconviction petition at the second stage

where postconviction counsel provided unreasonable assistance and remand for 

further second stage-proceedings with the appointment of new counsel. 

¶ 2 Defendant Delaney Jarvis appeals from the second-stage dismissal of his petition for relief 

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). On 

appeal, he asserts that postconviction counsel provided unreasonable assistance by (1) failing to 

obtain documentation to support defendant’s claim that trial counsel was ineffective for failing to 
No. 1-23-0805 

- 2 - 

introduce exculpatory evidence of the ownership of the vehicle involved in the offense in order to 

impeach witness testimony and (2) failing to amend the petition to allege ineffective assistance of 

appellate counsel in order to overcome the procedural default of defendant’s claim that trial 

counsel was ineffective for failing to file a motion to suppress a witness’s pretrial identifications

of defendant. We reverse and remand for further second-stage proceedings with the appointment 

of new counsel. 

¶ 3 Following a jury trial, defendant was found guilty of one count of aggravated leaving the 

scene of a motor vehicle accident involving death and sentenced to 19 years’ imprisonment.

Defendant’s conviction was affirmed on direct appeal. See People v. Jarvis, 2015 IL App (1st) 

131142-U. The underlying facts are set forth in the decision on direct appeal and will be repeated 

here only briefly. 

¶ 4 At trial, Phillip Ashworth testified that on June 11, 2011, at 7:30 p.m., he witnessed a green 

vehicle strike a motorcycle. The rider, Shane Kreke, fell off the motorcycle, rolled across 

Ashworth’s vehicle, and hit the ground. Ashworth and the driver of the green vehicle exited their 

vehicles, and Ashworth told the driver of the green vehicle that the driver hit Kreke. The driver of 

the green vehicle stated he did not care, returned to his vehicle, and drove away. Ashworth 

identified defendant in court as the driver of the green vehicle. At the scene, Ashworth spoke to 

Olympia Fields police officer Scott Metzger and described defendant. Ashworth viewed three 

lineups: a photo array on June 22, 2011, where Ashworth failed to identify defendant; a photo 

array on July 7, 2011, where Ashworth identified defendant; and a physical lineup on July 17, 

2011, where Ashworth also identified defendant. The two photo arrays are included in the record 

on appeal. 
No. 1-23-0805 

- 3 - 

¶ 5 Metzger testified that he was dispatched to the location of the accident. There, he observed

a green Kia bumper and Kreke on the ground with people rendering aid. Metzger did not see a 

green Kia at the scene and no one reported being involved in the accident. Metzger spoke with 

Ashworth at the scene. 

¶ 6 Daniel Fernandez testified that in May 2011, he sold defendant a green Kia. Fernandez 

identified the bumper left at the scene as belonging to the vehicle. Defendant called Fernandez 

after June 10, 2011, and asked Fernandez not to tell anyone that Fernandez sold defendant the 

green Kia. Fernandez was arrested after June 2011 for a felony and had other felonies in his 

background. Fernandez stated that he had “beef” with one of defendant’s friends and he and 

defendant did not like each other because of it. On redirect, Fernandez clarified that he called the 

Olympia Fields police department on June 21, 2011, and reported that he sold defendant a green 

Kia. 

¶ 7 The jury found defendant guilty of one count of aggravated leaving the scene of a motor 

vehicle accident involving death. Defendant’s counsel filed a motion for a new trial and, a day 

later, defendant also filed two pro se motions, one for a new trial and one for a “bar association

attorney.” Defendant’s pro se motion for a new trial alleged, inter alia, that trial counsel rendered 

ineffective assistance by failing to offer exculpatory evidence, failing to file pretrial motions

(which defendant did not identify), and failing to contact and interview witnesses and conduct a 

legal investigation. The motion for a “bar association attorney” requested defendant be appointed 

new counsel. 

¶ 8 The trial court stated that a hearing would first be held on counsel’s motion for a new trial 

and, if that were denied, the case would proceed to sentencing. Defendant was advised that the 
No. 1-23-0805 

- 4 - 

court would not hear arguments on defendant’s pro se motions until after sentencing.

Subsequently, the court denied counsel’s motion for a new trial and sentenced defendant to 19 

years’ imprisonment. Defendant did not file a motion to reconsider his sentence and did not request 

to be heard on his pro se motions. 

¶ 9 On direct appeal, defendant alleged that (1) the trial court erred in failing to tender a jury 

instruction regarding witness identification testimony, (2) trial counsel was ineffective for failing 

to seek the jury instruction, and (3) the trial court erred in failing to conduct a preliminary hearing 

investigating defendant’s claim of ineffective assistance of trial counsel pursuant to People v. 

Krankel, 102 Ill. 2d 181 (1984). 

¶ 10 This court affirmed defendant’s conviction, finding that the trial court did not commit plain 

error in failing to tender the jury instruction and therefore, the issue was forfeited. This court also 

found trial counsel did not render ineffective assistance in failing to seek the jury instruction as 

counsel adequately attacked Ashworth’s identification of defendant as the driver. Finally, this 

court found defendant’s pro se motion consisted of bare claims and general assertions of 

ineffective assistance and therefore, the trial court did not err in not conducting a Krankel hearing. 

Jarvis, 2015 IL App (1st) 131142-U, ¶¶ 34, 40, 55. 

¶ 11 On December 28, 2016, defendant filed a pro se petition for postconviction relief alleging 

that trial counsel (1) failed to conduct an adequate factual and legal investigation, (2) failed to file 

any pretrial motions, and (3) failed to introduce exculpatory evidence. Relevant here, defendant 

argued that trial counsel was ineffective for failing to (a) introduce exculpatory evidence, including 

proof of ownership of the green Kia, to impeach Fernandez’s testimony and (b) file a motion to 

suppress Ashworth’s pretrial identifications of defendant as suggestive. As to the latter claim, 
No. 1-23-0805 

- 5 - 

defendant pointed out that Ashworth was unable to identify him in the first array, where five of 

the six persons in the array had long hair, including defendant, but did identify him in the second 

photo array, where every person except defendant had short hair. Defendant contended the photo 

arrays tainted the physical lineup and in court identification. 

¶ 12 On February 19, 2016, the petition was docketed for second-stage proceedings and counsel 

was appointed. 

¶ 13 On January 13, 2022, counsel filed a certificate pursuant to Illinois Supreme Court Rule 

651(c) (eff. July 1, 2017) stating: 

“1. I have consulted with the petitioner, DELANEY JARVIS, personally or by mail to 

ascertain his contentions of deprivation of constitutional rights. 

2. I have obtained and examined the common law record, and report of proceedings, the 

court file, and exhibits. 

3. I have reviewed petitioner’s pro se post-conviction petition. 

4. I have attempted to obtain the trial attorney’s trial file.

5. I have not filed an Amended Petition for Post-Conviction Relief. The pro se *** petition 

for post-conviction relief does adequately set forth the petitioner’s claims of deprivation of 

his constitutional rights.” 

¶ 14 On August 1, 2022, the State filed a motion to dismiss the petition alleging all the claims 

were barred by res judicata as they were presented in defendant’s pro se motion for a new trial 

and raised on direct appeal. 

¶ 15 On March 17, 2023, the court granted the motion to dismiss, concluding that all the claims 

were decided on direct appeal and barred by res judicata. 
No. 1-23-0805 

- 6 - 

¶ 16 On appeal, defendant argues that postconviction counsel provided unreasonable assistance 

under Rule 651(c), as counsel (1) failed to obtain documentation to support defendant’s claim that 

trial counsel was ineffective for failing to introduce exculpatory evidence of the ownership of the 

vehicle in order to impeach Fernandez’s testimony and (2) failed to amend the petition to allege 

ineffective assistance of appellate counsel in order to overcome the procedural default of 

defendant’s claim that trial counsel was ineffective for failing to file a motion to suppress 

Ashworth’s pretrial identifications of defendant. 

¶ 17 The Act allows defendants to challenge their convictions based on an alleged violation of 

their state or federal constitutional rights. People v. Jean, 2024 IL App (1st) 220807, ¶ 28. 

Postconviction proceedings follow three stages. Id. Defendant’s petition was dismissed at the 

second stage. At the second stage, a defendant must make a substantial showing of a constitutional 

violation. People v. Zirko, 2021 IL App (1st) 162956, ¶ 16. Also at this stage, counsel is appointed 

for indigent defendants and the State may move to dismiss the petition. Jean, 2024 IL App (1st) 

220807, ¶ 28. 

¶ 18 If the State moves to dismiss the petition, the court must “not engage in fact-finding or 

credibility determinations but must take as true all well-pleaded facts that are not positively 

rebutted by the original trial record.” People v. Madison, 2023 IL App (1st) 221360, ¶ 33. If the 

court determines that a defendant has made a substantial showing of a constitutional violation, the 

petition proceeds to a third-stage evidentiary hearing. Id. If not, the petition is dismissed. Id. A 

dismissal of a petition at the second stage is reviewed de novo. People v. Johnson, 2024 IL App 

(1st) 220419, ¶ 65. 
No. 1-23-0805 

- 7 - 

¶ 19 In postconviction proceedings, the right to counsel is statutory, not constitutional. People 

v. Carson, 2024 IL App (1st) 221644, ¶ 17. Furthermore, counsel is required to render “reasonable 

assistance,” a standard which is “less than that afforded by the federal or state constitutions.” 

(Internal quotation marks omitted.) Id. Postconviction counsel’s purpose is not to “protect 

postconviction petitioners from the prosecutorial forces of the State but to shape their complaints 

into the proper legal form and to present those complaints to the court.” People v. Addison, 2023 

IL 127119, ¶ 19. 

¶ 20 To ensure postconviction counsel renders reasonable assistance, Rule 651(c) provides that 

counsel must (1) consult with the defendant by phone, mail, or other means to ascertain the

defendant’s contentions, (2) examine the record of the proceedings at trial, and (3) make the 

necessary amendments to the pro se petition to adequately present the defendant’s contentions. Ill. 

S. Ct. R. 651(c) (eff. July 1, 2017). Substantial compliance with this rule is required. Addison, 

2023 IL 127119, ¶ 21. Counsel may file a certification that he or she complied with the rule or the 

record as a whole may demonstrate compliance. Ill. S. Ct. R. 651(c) (eff. July 1, 2017); People v. 

Perkins, 229 Ill. 2d 34, 50 (2007). 

¶ 21 Once counsel files a Rule 651(c) certificate, a rebuttable presumption that counsel provided 

reasonable assistance arises and the defendant bears the burden of overcoming that presumption 

by showing that counsel did not substantially comply with the rule. Addison, 2023 IL 127119,

¶ 21. The rebuttable presumption may be overcome by a defendant showing that counsel failed to 

make necessary amendments to a pro se petition, including those needed to overcome procedural 

bars. Id. However, counsel is not required to amend a petition to advance frivolous claims. People 
No. 1-23-0805 

- 8 - 

v. Gallano, 2019 IL App (1st) 160570, ¶ 30. Whether postconviction counsel substantially 

complied with Rule 651(c) is reviewed de novo. Jean, 2024 IL App (1st) 220807, ¶ 30. 

¶ 22 Here, defendant’s postconviction counsel filed a Rule 651(c) certificate stating that she 

consulted with defendant, reviewed the trial file including the common law record and transcripts, 

and did not file an amended petition as the pro se petition adequately set forth defendant’s claims. 

Therefore, there exists a rebuttable presumption that defendant’s counsel substantially complied 

with Rule 651(c) and provided reasonable assistance during postconviction proceedings. 

¶ 23 Defendant argues that postconviction counsel failed to comply with Rule 651(c) because 

counsel failed to amend the pro se postconviction petition to allege appellate counsel’s 

ineffectiveness for failing to argue trial counsel’s ineffectiveness for not filing a motion to suppress 

Ashworth’s pretrial identifications of defendant. Defendant asserts the identifications were the 

result of suggestive procedures. Defendant notes the ineffective assistance of trial counsel claim 

was evident from the trial record and therefore could have been raised on direct appeal. In order 

for the claim to survive forfeiture for failure to raise it on direct appeal, the claim of ineffective 

assistance of appellate counsel was a necessary amendment to the postconviction petition. 

¶ 24 The State alleges that postconviction counsel was not required to amend the petition to 

include this claim because the underlying issue was decided on direct appeal and barred by res 

judicata. See People v. Resendiz, 2020 IL App (1st) 180821, ¶ 20 (issues decided on direct appeal 

are barred by res judicata and issues that could have been raised on direct appeal, but were not, 

are forfeited).

¶ 25 The claim is not barred by res judicata. On direct appeal, defendant alleged that (1) the 

trial court erred in failing to tender a jury instruction regarding witness identification testimony, 
No. 1-23-0805 

- 9 - 

(2) trial counsel was ineffective for failing to seek the jury instruction, and (3) the trial court erred

in failing to conduct a preliminary hearing investigating defendant’s claim of ineffective assistance 

of trial counsel pursuant to Krankel. Regarding the third issue, this court ruled that defendant’s 

pro se posttrial motion consisted of bare claims and general assertions lacking any particulars and 

was insufficient to invoke a Krankel hearing. As a result, on direct appeal, this court did not rule 

on the merits of defendant’s claim that trial counsel was ineffective for failing to file unspecified 

pretrial motions, let alone on the merits of a claim that trial counsel was ineffective for failing to 

file a motion to suppress Ashworth’s pretrial identifications. As such, the claim was not barred by 

res judicata when defendant raised it in his postconviction petition. People v. Blair, 215 Ill. 2d 

427, 443 (2005) (“The doctrine of res judicata bars consideration of issues that were previously 

raised and decided on direct appeal”). 

¶ 26 The claim was, however, as defendant points out, subject to forfeiture. Although 

photographs of the two photo arrays underlying the claim are included in the trial court record, 

defendant failed to raise the claim on direct appeal. Accordingly, the claim was procedurally 

barred. See People v. Myers, 2023 IL App (1st) 210642, ¶ 40 (defendant precluded from raising a 

claim in a postconviction petition that could have been raised on direct appeal but was not). 

¶ 27 An amendment to defendant’s pro se petition alleging ineffective assistance of appellate 

counsel for not raising trial counsel’s ineffectiveness could have properly framed defendant’s 

postconviction claim for consideration, overcoming the procedural bar of forfeiture. Addison, 2023 

IL 127119, ¶ 23. Postconviction counsel’s duty to adequately present a defendant’s claims as 

required by Rule 651(c) includes making amendments that would overcome procedural bars, 

including alleging claims of ineffective assistance of appellate counsel for failure to raise a claim
No. 1-23-0805 

- 10 - 

on direct appeal when necessary to survive procedural default. Perkins, 229 Ill. 2d at 44. 

Consequently, the presumption of compliance with Rule 651(c) is rebutted by the record. Addison, 

2023 IL 127119, ¶ 44. Therefore, postconviction counsel did not substantially comply with the 

third requirement of Rule 651(c) and rendered unreasonable assistance in this regard. Id. 

¶ 28 When counsel fails to substantially comply with Rule 651(c) by failing to allege a claim of 

ineffective assistance of appellate counsel to overcome forfeiture, the cause should be remanded 

without consideration of the merits of a defendant’s claim. Id. ¶ 33. In so ruling, we need not reach

the other grounds on which defendant argues that postconviction counsel failed to provide 

reasonable assistance. See People v. Arnold, 2023 IL App (2d) 220396-U, ¶ 22; People v. Wills, 

2023 IL App (4th) 221016-U, ¶ 20; People v. Clark, 2023 IL App (3d) 210344-U, ¶¶ 20-21.1

¶ 29 For the foregoing reasons, we reverse the judgment of the circuit court and remand for 

further second-stage postconviction proceedings with the appointment of new counsel. 

¶ 30 Reversed and remanded. 

1 Although nonprecedential, orders filed under Supreme Court Rule 23(b) on or after January 1, 

2021, may be cited as persuasive authority. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).