2024 IL App (1st) 230032-U

No. 1-23-0032 

Order filed June 14, 2024 

Fifth 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. 

DEMISKIC DEAR, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 13 CR 01755 

Honorable 

James B. Linn, 

Judge Presiding. 

JUSTICE LYLE delivered the judgment of the court. 

Presiding Justice Mitchell and Justice Mikva concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the judgment of the circuit court where postconviction counsel provided 

a reasonable level of assistance pursuant to Illinois Supreme Court Rule 651(c) (eff. 

July 1, 2017). 

¶ 2 Defendant, Demiskic Dear, appeals from the second stage dismissal of his petition under 

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). In his petition, 

Mr. Dear contended, inter alia, that his trial counsel was ineffective in failing to use a peremptory 

challenge to strike a Chicago police officer from the jury. Following a hearing, the circuit court 
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granted the State’s motion to dismiss the petition finding that trial counsel’s conduct represented 

reasonable trial strategy. 

¶ 3 On appeal, Mr. Dear contends that his postconviction counsel provided ineffective 

assistance in failing to raise the issue of appellate counsel’s ineffectiveness on direct appeal in 

order to avoid forfeiture of his claim for ineffective assistance of trial counsel. Mr. Dear also asserts 

that postconviction counsel provided ineffective assistance where she was not familiar with the 

record at the hearing on the State’s motion to dismiss and could not adequately respond to the 

circuit court’s questions about whether trial counsel used all of her peremptory challenges during 

jury selection. For the reasons that follow, we affirm the judgment of the circuit court. 

¶ 4 I. BACKGROUND

¶ 5 A. Trial and Jury Selection

¶ 6 A full recitation of the facts from Mr. Dear’s jury trial can be found in this court’s order 

from Mr. Dear’s direct appeal. People v. Dear, 2015 IL App (1st) 133408-U. Mr. Dear was charged 

with armed habitual criminal and aggravated unlawful use of a weapon after a firearm was found 

in the trunk of the vehicle he was driving following a traffic stop. During jury selection, each side 

was allowed seven peremptory strikes. After examining the first panel of prospective jurors, each 

side exercised three peremptory strikes and six jurors were selected. Juror #4 (hereafter referred to 

as D.G.)1 was part of the second panel of prospective jurors. D.G. confirmed that he had been a 

Chicago police officer for six years. When asked by the trial court if Mr. Dear could receive a fair 

trial from him, D.G. responded, “Yes.” The court asked D.G.: 

1See People v. Manning, 241 Ill. 2d 319, 322 (2011). 
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“You’re on the job, you’re a police officer, people find out that you had jury service 

over in this building, the jury hears the evidence, they think the right verdict is not guilty 

verdict, does that cause you any strain in your relationship with the people you work with?” 

D.G. responded, “No.” D.G. confirmed that he would sign a guilty verdict if the State proved Mr. 

Dear guilty beyond and reasonable, that he would sign a not guilty verdict if the State was unable 

to do that, and that he would keep an open mind throughout the trial. 

¶ 7 Trial counsel moved to strike D.G. for cause because she did not believe that he could be 

unbiased in this case because he was Chicago police office. The court denied the motion finding 

that D.G. stated that he could be fair. The court noted that it had police officers serve on the jury 

before, and the jury returned a not guilty verdict on two of those occasions. The court observed 

that it had asked D.G. if serving on the jury would cause any strain with his coworkers and D.G. 

“laughed.” 

¶ 8 At trial, two police officers testified about the traffic stop and their subsequent discovery 

of the firearm and questioning of Mr. Dear. Mr. Dear, who did not have a valid firearm owner’s 

identification (FOID) card, told the officers that he did not know who the gun belonged to. Melinda 

Cannon, Mr. Dear’s girlfriend, testified on his behalf that she placed the gun in the vehicle’s trunk 

after she observed some children playing with it at the park. Ms. Cannon, who had a valid FOID 

card, intended to turn the gun over to the police, but she forgot it was in the trunk and did not tell 

Mr. Dear about the gun. At the close of evidence, the jury found Mr. Dear guilty of armed habitual 

criminal and aggravated unlawful use of a weapon and the trial court sentenced him to 17 years’ 

imprisonment. 
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¶ 9 This court affirmed Mr. Dear’s conviction and sentence on direct appeal over his claim that 

his trial counsel was ineffective in advancing a legally non-viable defense and effectively 

conceding his guilt. Dear, 2015 IL App (1st) 133408-U. 

¶ 10 B. Postconviction Proceedings 

¶ 11 On October 17, 2016, Mr. Dear filed a petition for relief from judgment pursuant to section 

2-1401 of the Code (735 ILCS 5/2-1401(f) (West 2016)). In his petition, Mr. Dear raised claims 

of ineffective assistance of trial counsel and prosecutorial misconduct. Mr. Dear also contended 

that the trial court erred in denying trial counsel’s request to strike D.G. because he was a Chicago 

police officer. The circuit court appointed counsel to represent Mr. Dear and subsequently granted 

Mr. Dear’s request to treat the 2-1401 petition as a petition under the Act. 

¶ 12 Appointed counsel2 filed a supplemental postconviction petition on Mr. Dear’s behalf. The 

supplemental petition focused on the issue of trial counsel’s request to strike D.G. from the jury. 

During jury selection, trial counsel argued that she did not believe D.G. could be fair because he 

had friends who were Chicago police officers. Postconviction counsel noted that after the trial 

court denied the motion to dismiss D.G. for cause, trial counsel did not use any of her remaining 

peremptory challenges to strike him. Postconviction counsel contended that trial counsel’s failure 

to use her peremptory challenge to strike D.G. constituted ineffective assistance of counsel. 

Postconviction counsel further asserted that Mr. Dear was prejudiced by this deficient performance 

2We note that multiple attorneys represented Mr. Dear throughout the postconviction 

proceedings. His initial appointed counsel from the Public Defender’s office was transferred to another 

division and another Public Defender was appointed to represent him. Mr. Dear then retained a private 

attorney to represent him. That private attorney later withdrew and Mr. Dear retained a second private 

attorney to represent him. The second private attorney also withdrew and the Public Defender was 

reappointed. 
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because there was a reasonable probability that D.G. could influence the jury and cause them to 

give more weight to the police officers’ testimonies. 

¶ 13 The State filed a motion to dismiss Mr. Dear’s petition and the supplemental petition. With 

regard to the claim that trial counsel was ineffective in failing to strike D.G., the State argued that 

Mr. Dear’s claim that D.G. was biased was based on “mere suspicion.” The State noted that the 

court questioned D.G. and determined that he could be fair. The State also contended that any 

claim that the trial court erred during jury selection was forfeited because Mr. Dear did not raise 

this issue in a motion for a new trial or on direct appeal. 

¶ 14 The court held a hearing on Mr. Dear’s petition and the State’s motion. At the hearing, 

postconviction counsel informed the court that the claim for relief was that trial counsel was 

ineffective in failing to use a peremptory challenge to strike D.G. The court asked postconviction 

counsel if trial counsel had used all of her peremptory challenges. Postconviction counsel 

responded: “No. This was the fourth juror, so she had all her—she had her challenges available to 

her.” The court asked postconviction counsel whether D.G. was the foreperson of the jury and 

counsel responded that he was not. The court stated that:

“I’ve seen police officers on juries. I’ve seen a police officer foreperson of a jury 

that said not guilty happen in my courtroom. I’ve had numerous—it happens from time to 

time. I’ve had quite a few police officers serve as jurors.” 

The court then asked if trial counsel used all of her peremptory challenges by the end of jury 

selection. Postconviction counsel stated that he was “not sure,” but that trial counsel had 

peremptory challenges available at the time her motion to strike D.G. for cause was denied. 

¶ 15 The court found that that “you cannot fault a lawyer by not using a peremptory challenge 

just because of a person’s occupation, even when it’s a police officer and they have to rely on 
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testimony of other police officers, that wasn’t the foreperson.” The court noted that the attorneys 

have a limited number of peremptory challenges and it was possible that there were other people 

that could have been on the venire that trial counsel was more concerned about than D.G. The 

court therefore granted the State’s motion to dismiss. This appeal follows. 

¶ 16 We note that we have jurisdiction to consider the merits of this appeal pursuant to article 

VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court 

Rule 651(a) (eff. July 1, 2017). 

¶ 17 II. ANALYSIS 

¶ 18 On appeal, Mr. Dear contends that his postconviction counsel provided unreasonable 

assistance where counsel failed to amend the postconviction petition to include a claim of 

ineffective assistance of appellate counsel to avoid forfeiture of the ineffective assistance of trial 

counsel claim. Mr. Dear also contends that postconviction counsel provided unreasonable 

assistance where she was unfamiliar with the record at the hearing on the State’s motion to dismiss 

and could not answer the court’s question about whether trial counsel had used all of her 

peremptory challenges during jury selection. 

¶ 19 A. Unreasonable Assistance of Counsel 

¶ 20 The Act provides a three-stage mechanism by which a criminal defendant may assert that 

his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1 

(West 2016); People v. Delton, 227 Ill. 2d 247, 253 (2008). At the first stage, the circuit court 

reviews the petition to determine whether the allegations in the petition are frivolous or patently 

without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If the court does not summarily dismiss the 

petition, it must be docketed for further consideration in the second stage. Id.; People v. Addison, 
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2023 IL 127119, ¶ 18. At the second stage, the circuit court may appoint counsel to assist an 

indigent defendant. Addison, 2023 IL 127119, ¶ 18. 

¶ 21 There is no constitutional right to the assistance of counsel in a postconviction proceeding. 

People v. Suarez, 224 Ill. 2d 37, 42 (2007). Instead, the postconviction petitioner is entitled to the 

level of assistance granted by the Act, which the supreme court has determined is a “reasonable” 

level of assistance. Addison, 2023 IL 127119, ¶ 19 (citing People v. Flores, 153 Ill. 2d 264, 276

(1992)). This “reasonable” level of assistance is less than that afforded by the federal or state 

constitutions. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). 

¶ 22 To ensure a reasonable level of assistance, Illinois Supreme Court Rule 651(c) (eff. July 1, 

2017) requires postconviction counsel to (1) consult with the defendant to ascertain his claims of 

error, (2) examine the trial court record, and (3) make any amendments to the pro se petition that 

are necessary to adequately present the defendant’s contentions. Postconviction counsel can create 

a rebuttable presumption that he or she provided reasonable assistance by filing a Rule 651 

certificate. People v. Perkins, 229 Ill. 2d 34, 42, 44 (2007). The defendant may rebut the 

presumption created by the filing of a certificate by demonstrating, inter alia, that postconviction 

counsel did not make all necessary amendments to the pro se petition. Addison, 2023 IL 127119, 

¶ 21. Necessary amendments include those that are necessary to overcome procedural bars. Id.

(citing Perkins, 229 Ill. 2d at 44). 

¶ 23 In this case, postconviction counsel did file a certificate pursuant to Rule 651(c) creating a 

presumption that she provided reasonable assistance. Mr. Dear maintains, however, that he can 

overcome that presumption in this case because counsel failed to make necessary amendments to 

his petition to overcome the procedural bar of forfeiture by alleging that appellate counsel was 

ineffective in failing to raise the issue of trial counsel’s ineffectiveness on direct appeal. Mr. Dear 
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maintains that the proper remedy for counsel’s unreasonable performance is to remand the matter 

so that counsel can adequately comply with the rule. In support of his contention that remand is 

required due to postconviction counsel’s failure to make necessary amendments to his petition, 

Mr. Dear primarily relies on the supreme court’s decision in Addison, 2023 IL 127119. 

¶ 24 In Addison, the defendant filed a pro se postconviction petition alleging 15 constitutional 

issues, including that his trial counsel rendered ineffective assistance. Id. ¶ 7. In 14 of his 15 claims, 

the defendant alleged that his appellate counsel was deficient in failing to raise the issue on direct 

appeal. Id. The trial court advanced the petition to the second stage of proceedings and appointed 

counsel to represent the defendant. Id. ¶ 8. Postconviction counsel filed an amended petition raising 

five claims, four of which alleged ineffective assistance of trial counsel. Id. Unlike the defendant’s 

pro se petition, however, none of the claims in the amended petition asserted that appellate counsel 

was ineffective in failing to raise the claims on direct appeal. Id. Postconviction counsel filed a 

Rule 651(c) certificate stating that she had complied with the rule. Id.

¶ 25 The State filed a motion to dismiss the amended petition, arguing that the defendant’s 

claims were forfeited because they could have been raised on direct appeal. Id. ¶ 9. The State 

asserted that the defendant had failed to challenge appellate counsel’s strategic decision to not 

raise these issues on appeal to avoid forfeiture. Id. The court held a hearing on the State’s motion 

to dismiss where the State again argued that the claims in the amended petition could have been 

raised on direct appeal and that the amended petition did not allege ineffective assistance of 

appellate counsel. Id. ¶ 10. At the hearing, the only questions the trial court judge asked the parties 

concerned the State’s forfeiture argument. Id. ¶ 11. The trial court granted the State’s motion to 

dismiss, finding that the defendant was not entitled to a third stage evidentiary hearing because he 

“ ‘failed to make a substantial showing of any violation of a Constitutional right.’ ” Id. ¶ 12. The 
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trial court did not discuss the merits of the defendant’s claims either in open court or in its written 

order. Id. 

¶ 26 The second district of the appellate court reversed and remanded finding that 

postconviction counsel’s failure to make a routine amendment to the petition to overcome the 

procedural bar of forfeiture was “patently unreasonable.” (Internal quotation marks omitted.) Id. ¶ 

14 (citing People v. Addison, 2021 IL App (2d) 180545, ¶ 28). The State appealed, arguing that 

the defendant failed to rebut the presumption of reasonable assistance of counsel where 

postconviction counsel filed a Rule 651(c) certificate. Id. ¶ 17. The State also contended that the 

defendant was not entitled to remand unless he could show he was prejudiced by postconviction 

counsel’s allegedly unreasonable performance. Id. 

¶ 27 The supreme court first found that postconviction counsel failed to provide the defendant 

with reasonable assistance where counsel failed to allege any claims of ineffective assistance of 

appellate counsel in the amended petition. Id. ¶¶ 23-24. The court observed that the defendant did 

make such allegations in his pro se petition and therefore it was “faced with the unusual situation 

in which postconviction counsel, in one significant sense, made the pro se petition worse by 

amending it.” Id. ¶ 24. The court further noted that the State’s motion to dismiss focused on 

forfeiture, but postconviction counsel never amended the petition to respond to this argument; nor 

did counsel address the argument when questioned by the trial court at the hearing on the State’s 

motion. Id. ¶ 25. The supreme court concluded that it could not find that counsel provided a 

reasonable level of assistance where she failed to make necessary amendments to the petition to 

put the claims in their “proper form.” Id. “Worse than that, she eliminated the necessary allegations 

that defendant had included in the pro se petition.” (Emphasis in original.). Id. 
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¶ 28 The court then considered whether remand was necessary based on counsel’s unreasonable 

performance. Id. ¶ 32. The court found, relying on its decision in Suarez, 224 Ill. 2d at 47, that 

“[b]ecause counsel did not comply with Rule 651(c), our case law dictates that the cause should 

be remanded without a consideration of whether the petition’s claims have merit.” Id. ¶ 33 

Consistent with Suarez, the Addison court held that the failure to comply with Rule 651(c) could 

not be excused on the basis of harmless error. Id. (citing Suarez, 224 Ill. 2d at 51-52). The court 

found that remand was appropriate so that postconviction counsel could comply with Rule 651(c). 

Id. ¶ 44. 

¶ 29 Mr. Dear contends, as in Addison, that postconviction counsel’s failure to shape his 

ineffective assistance of counsel claim into a proper legal form rebuts the presumption that counsel 

complied with Rule 651(c) and requires remand regardless of the merits of the claim. However, 

we find that there are key distinctions between the circumstances in this case and those present in 

Addison that render the holding in Addison inapplicable here. 

¶ 30 First, in Addison, the defendant included claims of ineffective assistance of appellate 

counsel in his pro se petition that were removed by postconviction counsel in the amended petition. 

The State, in its motion to dismiss, then argued that the defendant had forfeited his ineffective 

assistance of trial counsel claims because the amended petition did not allege the ineffective 

assistance of appellate counsel. Despite this argument, postconviction counsel did not amend the 

petition to respond to the State’s argument or make the required allegations regarding appellate 

counsel at the hearing on the State’s motion. In this case, by contrast, Mr. Dear did not include a 

claim for ineffective assistance of appellate counsel in his pro se petition that was later removed 

by postconviction counsel. 
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¶ 31 More importantly, however, the State did not argue in its motion to dismiss that Mr. Dear 

had forfeited his claim that trial counsel provided ineffective assistance based on the failure to 

raise a claim for ineffective assistance of appellate counsel. The State did argue that Mr. Dear had 

forfeited any claim that the trial court erred during the jury selection process because he did not 

raise the issue in a motion for new trial or on direct appeal. Mr. Dear points out that the State did 

make a blanket argument in the conclusion of its motion that “[p]etitioner has failed to make a 

substantial showing that his constitutional rights were violated, and furthermore all of his claims 

are forfeited and lack support.” However, this claim must be viewed in the context of the entire 

motion where the State argued that Mr. Dear’s 2-1401 claims were untimely, and therefore 

forfeited, that his claims were not properly supported by affidavits, and therefore “procedurally 

defective,” that his claims relating to the trial court’s rulings during jury selection had been 

forfeited, and that his claim relating to improper jury instructions had been forfeited. By contrast, 

in addressing the ineffective assistance of counsel claim for failing to use a peremptory challenge 

to strike D.G., the State addressed the merits of the claim, arguing that Mr. Dear could not establish 

that he was prejudiced by any alleged deficient performance because he could not demonstrate that 

D.G. was biased. 

¶ 32 Mr. Dear nonetheless maintains that the State’s arguments are not determinative of whether 

postconviction counsel was required to amend the petition. Mr. Dear asserts that Addison focuses 

on the responsibilities of postconviction counsel, not the State. However, the distinction is 

important here because the State’s arguments inform whether postconviction counsel was required 

to amend the petition to respond to an argument of forfeiture. In this case, in contrast with Addison, 

forfeiture did not permeate the proceedings such that postconviction counsel’s failure to address it 

was unreasonable. Unlike in Addison, the circuit court here did not ask postconviction counsel 
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about forfeiture at the hearing on the State’s motion and the State did not argue at the hearing that 

forfeiture was warranted. Instead, the State contested the merits of the claim and the circuit court 

addressed the merits. The circuit court determined that trial counsel’s decision not to use a 

peremptory challenge to strike D.G. was a matter of trial strategy. Matters of trial strategy are 

generally immune from claims of ineffective assistance. People v. Smith, 195 Ill. 2d 179, 188 

(2000). The court therefore granted the State’s motion to dismiss on that basis. 

¶ 33 In contrast, in Addison, the State argued that remand was not required because the circuit 

court dismissed the defendant’s petition on the merits, rather than on the basis of forfeiture.

Addison, 2023 IL 127119, ¶ 39. The supreme court rejected this argument, finding that it was not 

possible to discern from the record that forfeiture did not play a part in the circuit court’s decision. 

Id. ¶ 40. The supreme court noted that the circuit court did not indicate in either its oral 

pronouncement or its written order why the defendant’s claim lacked merit. Id. The circuit court 

did, however, ask defense counsel why the claims raised in the petition could not have been raised 

on direct appeal. Id. When defense counsel could not answer the question, the court stated, “ 

‘[e]verything that has been presented by way of the amended [postconviction petition] are 

arguments that I believe could have been made on direct appeal.’ ” Id. The supreme court 

determined that although the trial court did not explicitly state that it was dismissing the petition 

on forfeiture grounds, “it is clear from the record that the trial court ruled on the petition under the 

belief that all of the claims could have been made on direct appeal and there was no allegation of 

ineffective assistance of appellate counsel in the petition.” Id. 

¶ 34 Part of the rationale underlying the holdings in Addison and Suarez is that the reviewing 

courts should not usurp the role of the circuit court by deciding matters that should be decided in 

the “ ‘first instance’ ” by the circuit court. Id. ¶ 33 (quoting Suarez, 224 Ill. 2d at 51-52). That is, 
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this court should not address the merits of the defendant’s claims to determine whether the 

defendant was prejudiced where the circuit court was deprived of the opportunity to analyze the 

merits of the petition because counsel’s unreasonable performance in neglecting to make necessary 

amendments to the petition prevented the circuit court from reaching the merits. This consideration 

is not present in this case because, as discussed, the circuit court here had the opportunity to address 

the merits of Mr. Dear’s claim in the “first instance,” and there is no indication forfeiture played a 

role in its ruling. We can think of no sound basis to remand this matter to the circuit court so that 

postconviction counsel can amend the petition to address a procedural argument that was not raised 

by the State or considered by the circuit court, resulting in the circuit court entering the same ruling 

based on the claim’s lack of merit. Accordingly, we find the circumstances in Addison

distinguishable from the case at bar, and find that Mr. Dear has not overcome the presumption that 

counsel provided reasonable assistance. 

¶ 35 Finally, Mr. Dear contends that postconviction counsel provided unreasonable assistance 

because she was unfamiliar with the record of the trial proceedings as evidenced by her inability 

to correctly recall how many peremptory challenges trial counsel used during jury selection. Mr. 

Dear points out that counsel could not answer the court’s questions about whether trial counsel 

used all of her peremptory challenges by the end of jury selection. Mr. Dear notes that the record 

shows that trial counsel used only three of her seven challenges, and that postconviction counsel’s 

unfamiliarity with the record prejudiced him because counsel could have rebutted the court’s 

determination that trial counsel elected to not use a peremptory challenge on D.G. because she was 

more concerned about other prospective jurors. 

¶ 36 At the hearing on the State’s motion to dismiss the petition, the court asked postconviction 

counsel whether trial counsel had peremptory challenges available to strike D.G. Postconviction 
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counsel responded that she did because D.G. was the fourth juror and trial counsel had seven total 

peremptory challenges available. The court then asked postconviction counsel whether trial 

counsel used all of her challenges by the end of jury selection. Counsel responded that he was not 

sure. The court then asked the assistant State’s attorney (ASA) if he knew the answer, and the ASA 

responded, “I’m looking, Judge. I don’t see any proof of that yet.” The court acknowledged that 

trial counsel had peremptory challenges available and that trial counsel moved to strike D.G. for 

cause, but found that: 

“I don’t think *** that you can fault a lawyer by not using a peremptory challenge just 

because of a person’s occupation, even when it’s a police officer and they have to rely on 

testimony of other police officers, that wasn’t the foreperson, that by itself—you know that 

you have a limited amount of peremptory challenges and there are other people that could 

be on the venire that the lawyer would have much more concern about than this particular 

person, which apparently they found acceptable—I don’t think that’s grounds to upset a 

conviction.” 

¶ 37 Thus, the record shows that postconviction counsel argued that trial counsel had 

peremptory challenges available, that she could have used a peremptory challenge to strike D.G., 

and that trial counsel was ineffective in failing to do so where she had demonstrated her concern 

about D.G. when she moved to strike him for cause. Although postconviction counsel did not know 

whether trial counsel ultimately used all of her peremptory challenges by the end of jury selection, 

the key element underlying the ineffective assistance of counsel claim was that trial counsel had 

peremptory challenges available to strike D.G., which postconviction counsel sufficiently argued. 

The circuit court nonetheless granted the State’s motion to dismiss, finding that trial counsel’s 

decision not to use a peremptory challenge was a matter of trial strategy and the court would not 
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find prejudice simply because D.G. was a police officer. On this record, we cannot say that Mr. 

Dear has rebutted the presumption that postconviction counsel provided a reasonable level of 

assistance. 

¶ 38 We further find unpersuasive the authority Mr. Dear cites in support of his argument that 

postconviction provided unreasonable assistance based on his unfamiliarity with the record. First, 

People v. Knight, 2020 IL App (1st) 170550, ¶¶ 30-32 involved counsel’s performance at a third 

stage evidentiary hearing. The supreme court has instructed that a comparison between cases 

considering unreasonable assistance claims at the third stage and the second stage is “illogical” 

because Rule 651(c) governs counsel’s duties at the second stage while the third stage is governed 

by a different standard. Addison, 2023 IL 127119, ¶ 38. Nonetheless, in Knight, this court had 

previously remanded the cause for a third stage evidentiary hearing where postconviction counsel 

failed to provide the circuit court with “key facts” from the defendant’s retrial and resentencing. 

Knight, 2020 IL App (1st) 170550, ¶ 45 (citing People v. Knight, 2014 IL App (1st) 122931-U, ¶ 

33). The court specifically instructed postconviction counsel to present these facts to the circuit 

court at the hearing. Id. Nevertheless, on remand, postconviction counsel again failed to argue 

these key facts, rendering the prior remand “ ‘illusory.’ ” Id. ¶ 46. Therefore, unlike postconviction 

counsel in Knight who failed to argue the salient facts underlying the defendant’s postconviction 

claims, counsel here sufficiently argued the “key facts” that trial counsel had peremptory 

challenges available to strike D.G., but did not use them. 

¶ 39 In People v. Kelly, 2012 IL App (1st) 101521, ¶ 40, this court remanded for further second 

stage proceedings where the defendant’s petition had been pending for nearly 12 years. The court 

observed that the defendant’s privately retained attorney “either lacked basic knowledge of the Act 

or fundamentally misunderstood it” where he asked at a hearing whether the petition was at the 
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second stage of proceedings and what the proper standard of review was at that stage. Id. Counsel 

also failed to attach necessary exhibits and affidavits to the amended petition and failed to cite 

controlling United States Supreme Court precedent to support the defendant’s claims. Id. ¶¶ 31-

32. Under these circumstances, this court found that postconviction counsel failed to shape the 

defendant’s claims into the proper legal form and provided an unreasonable level of assistance

under Rule 651(c). Id. ¶ 41. In this case, the record shows that postconviction counsel did not lack 

basic knowledge of the Act, ably argued in support of the ineffective assistance of trial counsel 

claim, and did not neglect Mr. Dear’s petition for more than a decade. 

¶ 40 Likewise, in People v. Johnson, 2022 IL App (1st) 190258-U, ¶ 38 and People v. Atkins, 

2022 IL App (1st) 200302-U, ¶ 27 postconviction counsels failed to attach necessary records,

affidavits, and other documents to the petition. In Johnson, the record also demonstrated “[b]ased 

on counsel’s pleadings, statements, unreasonable delays, and general performance throughout, it 

is quite apparent that counsel was not familiar with the record or the basic requirements of the 

Act.” Johnson, 2022 IL App (1st) 190258-U, ¶ 38. In Atkins, the record demonstrated that 

postconviction counsel was “inexperienced at postconviction proceedings,” informing the court 

that he was “new at this” and was unfamiliar with what “docketing” the petition meant. Atkins, 

2022 IL App (1st) 200302-U, ¶ 27 n. 4. In this case, as discussed, there is no suggestion that 

postconviction counsel failed to attach required documents to the petition and the record shows 

that counsel was familiar with the record and the basic requirements of the Act. 

¶ 41 Finally, in People v. Barmore, 2022 IL App (2d) 200449-U, ¶ 55, postconviction counsel 

omitted “key allegations” from the amended petition and failed to attach readily available 

affidavits. He also raised a claim that was barred by res judicata. Id. Under these circumstances, 

the second district questioned the adequacy of counsel’s review of the record. Id. In this case, 
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postconviction counsel did not omit key allegations and did not fail to attach any supporting 

documentation. Counsel also did not raise a claim that was precluded by res judicata. Accordingly, 

we find the authority cited by Mr. Dear unpersuasive and find that postconviction counsel provided 

a reasonable level of assistance under Rule 651(c).

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Cook County. 

¶ 44 Affirmed.