Illinois Official Reports 

Appellate Court

People v. Johnson, 2017 IL App (4th) 160449

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

GRANVILLE S. JOHNSON, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-16-0449

Filed March 31, 2017

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 

08-CF-1424; the Hon. John R. Kennedy, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy 

(argued), of State Appellate Defender’s Office, for appellant.

Julia Reitz, State’s Attorney, of Urbana (Patrick Delfino, David J. 

Robinson, and Luke McNeill (argued), of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE KNECHT delivered the judgment of the court, with 

opinion. 

Presiding Justice Turner and Justice Appleton concurred in the 

judgment and opinion. 
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 OPINION 

¶ 1 In April 2014, defendant, Granville S. Johnson, filed a petition for postconviction relief 

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014)) with 

the assistance of private counsel. In June 2014, the trial court dismissed defendant’s petition at 

the first stage of postconviction proceedings. 

¶ 2 In July 2014, defendant’s counsel withdrew his representation, and defendant filed a timely 

pro se motion to reconsider, which he later supplemented. Defendant’s motion to reconsider 

and its supplement alleged postconviction counsel provided “ineffective” assistance by failing 

to raise certain previously requested claims in his postconviction petition. 

¶ 3 In May 2016, the trial court denied defendant’s motion to reconsider and found any new 

claims raised in his motion to reconsider and its supplement were forfeited as they were not 

raised in the original petition. Defendant appeals, arguing the trial court erred by (1) not 

considering whether postconviction counsel’s representation was “unreasonable” for failing to 

include the additional claims in his postconviction petition and (2) summarily dismissing his 

petition because at least one of the claims he would have raised states the gist of a meritorious 

claim. We affirm. 

¶ 4 I. BACKGROUND 

¶ 5 In August 2009, a jury found defendant guilty of first degree murder (720 ILCS 5/9-1(a)(1) 

(West 2008)) and attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), 

and in November 2009, the trial court sentenced him to consecutive terms of 53 years’ and 32 

years’ imprisonment. Defendant’s convictions and sentence were later affirmed on appeal, and 

both his petition for leave to appeal to the Illinois Supreme Court and his writ of certiorari with 

the United States Supreme Court were denied. People v. Johnson, 2012 IL App (4th) 

090893-U (affirming on direct review), appeal denied, No. 115225 (Ill. Jan. 30, 2013), cert. 

denied, 134 S. Ct. 358 (2013).

¶ 6 A. Direct Review 

¶ 7 On appeal from his convictions and sentence, defendant argued, in relevant part, the trial 

court erroneously concluded the State exercised due diligence in obtaining deoxyribonucleic 

acid (DNA) test results and thus was entitled to an extension of the speedy-trial deadline under 

section 103-5(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(c) (West 

2008)). Johnson, 2012 IL App (4th) 090893-U, ¶¶ 2, 18. In support of his argument, defendant 

highlighted three examples of a lack of due diligence: (1) the State, despite sending other 

evidence for testing on August 13, 2008, failed to request a DNA standard for comparison until 

October 15, 2008; (2) despite obtaining defendant’s sample, the State did not send the sample 

to the crime lab until early January 2009; and (3) the State could have avoided any delay had it 

checked the Illinois State Police DNA database, which had contained defendant’s DNA since 

at least 2005. Id. ¶ 18. After reviewing the record “as it existed at the time of the [October 20, 

2008,] hearing” on the State’s motion for a continuance, we concluded the trial court’s 

decision to grant the State a continuance was not an abuse of its discretion. Id. ¶¶ 22-28. 
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¶ 8 B. Postconviction Petition 

¶ 9 In April 2014, defendant, through private counsel, filed a postconviction petition, alleging 

ineffective assistance of trial counsel for counsel’s failure to file a motion to reconsider the trial 

court’s October 20, 2008, order based on newly tendered evidence. Specifically, defendant 

alleged, on October 21, 2008, the State tendered supplemental discovery to trial counsel, which 

included a September 11, 2008, Illinois State Police lab report. According to the petition, the 

lab report stated the lab “was ready to proceed with DNA testing as soon as it received (1) 

permission to consume some of the samples in the testing process and (2) a sample of 

[defendant’s] DNA.” The State did not file its motion to permit destruction of evidence 

necessary to complete forensic testing and motion for an order requiring the submission of 

defendant’s biological and hair samples until October 15, 2008. Defendant asserted the State’s 

failure to take the steps necessary to complete testing for approximately one month 

demonstrated, contrary to the court’s previous decision, it did not act diligently in obtaining the 

DNA test results. Defendant argued had (1) trial counsel filed a motion for the court to 

reconsider its prior ruling based on the newly tendered evidence, the trial court may have 

reversed its decision to grant the State a continuance and (2) the court reversed its prior 

decision, the State would have been required to try defendant by November 2008, which might 

well have led to the dismissal of the charges for a violation of the speedy-trial statute. 

¶ 10 C. First-Stage Dismissal 

¶ 11 On June 11, 2014, the trial court summarily dismissed defendant’s postconviction petition. 

The court characterized defendant’s petition as raising a claim his trial counsel was ineffective 

for failing to file a motion to reconsider the trial court’s ruling granting the State a continuance 

to obtain DNA evidence, which, in turn, resulted in a violation of his right to a speedy trial. The 

court found defendant was “procedurally barred from asserting [his claim] under the doctrine 

of res judicata” as it was an issue “that [was] or could have been raised on direct appeal” and 

defendant “allege[d] no new evidence or information that was not or could not have been a 

subject of [his] direct appeal.” In addition, the court found defendant’s claim did not meet the 

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). On June 23, 2014, 

defendant, through counsel, filed a notice of appeal. 

¶ 12 D. Retained Counsel’s Motion to Withdraw Representation

¶ 13 On July 7, 2014, defendant’s counsel filed with this court a motion to withdraw as counsel 

and appoint the office of the State Appellate Defender (OSAD) to represent defendant. 

¶ 14 E. Pro Se Motion to Reconsider 

¶ 15 On July 8, 2014, defendant directed a copy of a pro se motion to reconsider the dismissal of 

his postconviction petition be sent to the trial court and the State. Defendant’s motion was file 

stamped by the circuit clerk on July 11, 2014. 

¶ 16 In his motion to reconsider, defendant alleged, after receiving a copy of his postconviction 

petition, he wrote postconviction counsel to address counsel’s decision to not raise a claim of 

ineffective assistance of appellate counsel. Postconviction counsel allegedly wrote defendant 

and explained he did not need to do so because counsel on direct appeal argued about the lab 

report. Defendant, unsatisfied with postconviction counsel’s response, requested counsel to 
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supplement the petition with an ineffective assistance of appellate counsel claim. Defendant 

did not hear back from counsel until his petition was denied. Defendant asserted 

postconviction counsel was “ineffective” for failing to raise an ineffective assistance of 

appellate counsel claim. 

¶ 17 In addition to the failure to raise an ineffective assistance of appellate counsel claim 

relating to the September 11, 2008, lab report, defendant alleged postconviction counsel was 

“ineffective” for failing to add other meritorious claims to his petition that he and counsel 

agreed would be added. Specifically, defendant wanted counsel to add claims of ineffective 

assistance of appellate and trial counsel for failing to address (1) the use of a recorded 

statement by Anthony Jamerson as substantive evidence at his trial and (2) double jeopardy. 

Defendant alleged, after he requested the additional claims be added to his petition, 

“[c]ounsel respond[ed] in [a] way that confused [him] and then beg[a]n questioning 

[him] about payment. [Defendant] mailed counsel[‘s] letter to family, to show family 

[that] counsel was complaining about money and that they needed to make payments. 

This is the reason said letter is not attach[ed] to this motion. [Defendant] do[es] believe 

that he can attach said letter in [the] future. After receiving [the] last letter from counsel 

about money and why he didn’t raise ineffective [assistance] of direct appeal counsel[,] 

[defendant] never heard [f]rom counsel again, until [the] court dismiss[ed] [his] 

petition. [Defendant] wanted and had every intention of adding other meritorious 

issues to his [p]etition[,] including but not limited to the ones discussed in this motion.”

¶ 18 F. Withdrawal of Representation by Retained Counsel 

¶ 19 On July 11, 2014, this court granted private counsel’s motion to withdraw as counsel and 

appointed OSAD to represent defendant on appeal. 

¶ 20 G. Trial Court’s Order Declining to Address 

 Defendant’s Pro Se Motion to Reconsider 

¶ 21 On July 16, 2014, the trial court entered an order indicating it would not consider 

defendant’s pro se motion to reconsider because defendant’s counsel had previously filed a 

notice of appeal. 

¶ 22 H. Agreed Motion for Summary Remand 

¶ 23 In February 2016, defendant filed an agreed motion for summary remand for compliance 

with Illinois Supreme Court Rule 606(b) (eff. Dec. 11, 2014) to allow the trial court to consider 

his timely pro se motion to reconsider, which this court granted. 

¶ 24 I. Pro Se Supplemental Motion to Reconsider 

¶ 25 In March 2016, defendant filed a pro se supplemental motion to reconsider. Defendant 

alleged, in addition to the claims raised in his prior pro se motion to reconsider, his 

postconviction counsel provided “ineffective” assistance by failing to allege claims of 

ineffective assistance of appellate and trial counsel for failing to address (1) various 

evidentiary faults with the trial testimony from a police officer and (2) the failure to subpoena 

a key defense witness, Amandrea McGill, or ask for a continuance. 
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¶ 26 J. Denial of Motion to Reconsider 

¶ 27 In May 2016, the trial court entered an order denying defendant’s motion to reconsider and 

its supplement. The trial court maintained the claim raised in defendant’s postconviction 

petition was both (1) “procedurally barred as [it related to] matters of record that could have 

been raised on direct appeal” and (2) meritless, as there was not a reasonable probability of a 

different outcome had trial counsel filed a motion to reconsider after being tendered the 

September 11, 2008, lab report. As to the additional claims raised in defendant’s pro se motion 

to reconsider and its supplement, the court found the claims were forfeited as they were not 

raised in the original petition, and defendant had not requested leave to file a successive 

postconviction petition. 

¶ 28 This appeal followed. 

¶ 29 II. ANALYSIS 

¶ 30 On appeal, defendant argues the trial court erred in not considering the additional claims 

contained in his pro se motion to reconsider and its supplement where the omission of those 

claims from his original petition was the fault of postconviction counsel, he exercised due 

diligence in bringing the new claims to the court’s attention, at least one of his claims raised in 

his motion to reconsider states the gist of a meritorious claim, and he will be deprived of the 

opportunity to raise those claims in a future proceeding. Defendant requests we remand the 

matter and advance his petition to the second stage of postconviction proceedings. 

¶ 31 From the outset, defendant acknowledges the trial court correctly noted it is generally 

improper for a prisoner to raise new postconviction issues in a motion to reconsider. See 725 

ILCS 5/122-3 (West 2014) (“Any claim of substantial denial of constitutional rights not raised 

in the original or an amended petition is [forfeited].”); People v. Vilces, 321 Ill. App. 3d 937, 

939-40, 748 N.E.2d 1219, 1221-22 (2001) (finding the defendant forfeited an issue raised for 

the first time in a motion to reconsider). However, defendant distinguishes the present matter 

and suggests the trial court should have relaxed the forfeiture rule because (1) retained counsel 

filed his initial postconviction petition and (2) his motion to reconsider and its supplement 

alleged he received “ineffective” assistance of postconviction counsel. Defendant maintains 

this court should address his claim of “ineffective” assistance, which he now characterizes as 

“unreasonable” assistance, based on counsel’s (1) failure to amend his petition with the claims 

he requested and (2) presentation of a claim the trial court found to be barred by res judicata 

and speculative. Defendant asserts, because at least one of his claims raised in his motion to 

reconsider states the gist of a meritorious claim, summary dismissal was in error and this court 

should remand for stage-two proceedings. Defendant specifically presents argument on appeal 

as to why the additional claim relating to the officer’s testimony at trial—a claim first raised in 

the motion to reconsider—states the gist of a meritorious claim. In summary, defendant 

proposes the following rule: 

“[W]here private counsel files an initial petition that is deemed frivolous and patently 

without merit, and the petitioner files a timely motion to reconsider claiming that 

counsel failed to include numerous issues in the petition, the [forfeiture] rule should be 

relaxed because it is incumbent for the trial court to determine if counsel’s 

representation was reasonable by reviewing the additional claims. If one of the 

additional claims has merit, the trial court necessarily abuses its discretion by not 
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allowing the petition to proceed to stage two because counsel’s failure to include that 

issue is unreasonable.” 

¶ 32 In response, the State maintains the trial court properly concluded, following section 122-3 

of the Act (725 ILCS 5/122-3 (West 2014)) and the general rule highlighted in Vilces, any 

claim not raised in defendant’s original postconviction petition is forfeited. The State contends 

to allow defendant to distance himself from the general rule because his petition was filed with 

the assistance of counsel would improperly grant more leverage to those prisoners who have 

the ability to retain counsel, contradict the plain language of section 122-3, and usurp the Act’s 

contemplation of only one postconviction petition unless leave to file a successive petition is 

granted. The State maintains, if defendant wants to raise additional claims, he must do so in a 

successive postconviction petition. The State further asserts, even if this court (1) elects to 

address defendant’s claim of unreasonable assistance on appeal, it would be improper to 

analyze a claim of unreasonable assistance based on new claims unrelated to the initial petition 

and (2) addresses defendant’s claim of unreasonable assistance based on the failure to raise a 

claim relating to the officer’s testimony, it would fail as the underlying claim is meritless. 

¶ 33 Defendant’s entire argument is premised on the presumption prisoners are entitled to 

reasonable assistance at the first stage of postconviction proceedings. In his initial brief, 

defendant asserted, citing People v. Cotto, 2016 IL 119006, ¶ 32, 51 N.E.3d 802, the supreme 

court “recently reiterated that private counsel must render reasonable assistance at the first 

stage of post[ ]conviction proceedings.” The State’s brief did address defendant’s position and, 

in fact, presents argument under the presumption a prisoner is entitled to reasonable assistance 

at the first stage of postconviction proceedings. 

¶ 34 Following the briefing in this case but before oral arguments, defendant’s counsel, much to 

his credit, brought recent adverse authority, People v. Garcia-Rocha, 2017 IL App (3d) 

140754, to the attention of the State and this court on the issue of whether prisoners are entitled 

to reasonable assistance at the first stage of postconviction proceedings. Both parties have now 

had the opportunity to thoroughly address this issue during oral arguments. The State now 

contends a prisoner is not entitled to reasonable assistance at the first stage of postconviction 

proceedings. As the issue presents a question of law, our review is de novo. Cotto, 2016 IL 

119006, ¶ 24, 51 N.E.3d 802. 

¶ 35 We begin with the statutory language. Section 122-4 of the Act (725 ILCS 5/122-4 (West 

2014)) provides, where a postconviction petition is advanced to the second stage, a prisoner is 

without means to procure counsel, and the prisoner requests counsel be appointed, the trial 

court shall appoint counsel. This right of counsel arises only if the petition survives the first 

stage of postconviction proceedings. The Act does not otherwise grant prisoners the right to 

counsel at first-stage proceedings. See People v. Ligon, 239 Ill. 2d 94, 118, 940 N.E.2d 1067, 

1081 (2010) (finding a defendant has no right to the appointment of counsel at the summary 

dismissal stage of his postconviction proceeding). 

¶ 36 Our supreme court has noted the right to counsel in postconviction proceedings is “wholly 

statutory” (People v. Lander, 215 Ill. 2d 577, 583, 831 N.E.2d 596, 600 (2005)) and “a matter 

of legislative grace and favor which may be altered by the legislature at will” (internal 

quotation marks omitted) (People v. Owens, 139 Ill. 2d 351, 364, 564 N.E.2d 1184, 1189 

(1990)). “Because the right to counsel in post-conviction proceedings is derived from a statute 

rather than the Constitution, post-conviction petitioners are guaranteed only the level of 

assistance which that statute provides.” Id. In placing its gloss over the statutory language, our 
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supreme court has found, once a petition advances to second-stage proceedings, prisoners are 

entitled to a reasonable level of assistance, regardless of whether counsel is retained or 

appointed. Cotto, 2016 IL 119006, ¶ 42, 51 N.E.3d 802; 725 ILCS 5/122-4 (West 2014). 

Because the Act does not provide prisoners the right to counsel at the first stage of 

postconviction proceedings, we find no statutory basis to grant prisoners who have the ability 

to retain counsel the right to reasonable assistance at first-stage proceedings. 

¶ 37 In 2009, the Second District was presented with the same issue. In People v. Kegel, 392 Ill. 

App. 3d 538, 539, 913 N.E.2d 30, 31 (2009), the defendant appealed from the summary 

dismissal of his postconviction petition, arguing he did not receive reasonable assistance from 

the attorney he hired to prepare his petition. While the right to counsel, and thus the right to 

reasonable assistance, never arose because his petition was summarily dismissed, the 

defendant argued an attorney retained to prepare a postconviction petition should be held to the 

same standard as an attorney appointed to assist a defendant whose pro se petition has passed 

muster under section 122-2.1. Id. at 541, 913 N.E.2d at 32. The court rejected defendant’s 

argument, finding it to be an attempt “to disengage the guarantee of reasonable assistance from 

the underlying right to counsel such that the former can exist independently of the latter.” Id. It 

found: 

“[T]he rule that defendant champions would lead to disparate treatment among 

prisoners who are similarly situated except with regard to the means to obtain counsel. 

A prisoner whose retained attorney filed a fatally defective petition would be entitled to 

reversal of the summary dismissal of the petition if the attorney did not provide 

‘reasonable assistance.’ In contrast, an indigent defendant with no assistance of counsel 

who filed a petition suffering the same defect would have no basis for reversal. The 

General Assembly could not have intended such a result.” (Emphasis omitted.) Id. 

The court further rejected defendant’s suggestion counsel was obligated to provide reasonable 

assistance as a matter of professional ethics, finding any private ethical obligation did not 

expand the scope of the government’s obligation under section 122-4 to guarantee a defendant 

is properly assisted by counsel in postconviction proceedings. Id. at 541, 913 N.E.2d 32-33. In 

closing, the court noted its holding did not foreclose the defendant from raising his underlying 

claim in a successive petition and declined to express any view on whether the quality of 

postconviction counsel’s performance could establish cause or whether it resulted in any 

prejudice. Id. at 542, 913 N.E.2d at 33. See also People v. Shipp, 2015 IL App (2d) 131309, 

¶ 24, 53 N.E.3d 23 (finding “[n]either statute nor case law provide for a freestanding right to 

reasonable assistance of counsel at first-stage postconviction proceedings”). 

¶ 38 More recently, the Third District has followed suit in concluding a prisoner is not entitled 

to reasonable assistance at the first stage of postconviction proceedings. In Garcia-Rocha, 

2017 IL App (3d) 140754, ¶ 1, the defendant appealed from the second-stage dismissal of his 

postconviction petition, arguing he received unreasonable assistance by his privately retained 

postconviction counsel. The court initially noted it was unclear whether the defendant was 

arguing counsel was unreasonable for failing to raise an issue in his initial petition, failing to 

amend the petition at the second stage of proceedings, or both. Id. ¶ 26. To the extent the 

defendant was raising a claim of unreasonable assistance based on counsel’s failure to include 

an issue in his initial petition, the court rejected such an argument. Id. ¶¶ 27-34. The court 

found “neither the legislature nor Illinois courts [have] recognized any right to counsel at the 

first stage of postconviction proceedings,” and citing Kegel, it echoed concerns that accepting 
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the defendant’s argument would lead to disparate treatment among prisoners similarly situated 

except with regard to the means to obtain counsel. Id. ¶¶ 27-28. Justice McDade, in her partial 

concurrence/dissent, disagreed with the majority finding. Id. ¶¶ 52-61 (McDade, J., concurring 

in part and dissenting in part). She suggested a prisoner is entitled to reasonable assistance 

because, “in essence, when [the] prisoner retains counsel to prepare the initial postconviction 

petition, the first and second stages effectively merge and it is the job of retained counsel to 

both identify and raise those issues that could rise to the level of constitutional claims and to 

put them in proper form for the court’s consideration.” (Emphasis in original.) Id. ¶ 57. 

¶ 39 Defendant asserts we should decline to follow our sister districts’ decisions in Kegel and 

Garcia-Rocha as the supreme court in Cotto has provided express, binding authority for the 

proposition a prisoner is entitled to reasonable assistance at the first stage of postconviction 

proceedings. In Cotto, 2016 IL 119006, ¶ 22, 51 N.E.3d 802, the defendant appealed from the 

second-stage dismissal of his postconviction petition, arguing his privately retained 

postconviction counsel failed to provide him with a reasonable level of assistance. The 

supreme court was tasked with deciding “if every postconviction petitioner represented by 

counsel is entitled to a reasonable level of assistance from counsel after first-stage 

proceedings, regardless of whether counsel was appointed or privately retained.” (Emphasis 

added.) Id. ¶ 1. The court ultimately found: 

“[T]he appellate court in this case erred when it concluded that defendant was not 

entitled to reasonable assistance from his retained counsel at second-stage 

proceedings. *** We hold that there is no difference between appointed and privately 

retained counsel in applying the reasonable level of assistance standard to 

postconviction proceedings. Both retained and appointed counsel must provide 

reasonable assistance to their clients after a petition is advanced from first-stage 

proceedings.” (Emphases added.) Id. ¶ 42. 

Based on its characterization of the issue presented and ultimate holding, the supreme court 

was not tasked with determining whether a prisoner is entitled to reasonable assistance at the 

first stage of postconviction proceedings. However, in reaching its holding the court did make 

the following comment: “This court has also required reasonable assistance from privately 

retained postconviction counsel at the first and second stage of postconviction proceedings.” 

Id. ¶ 32. In support of this comment, the court cited its prior decision in People v. Mitchell, 189 

Ill. 2d 312, 358, 727 N.E.2d 254, 280 (2000), with a parenthetical indicating the court in that 

case reviewed “retained counsel’s performance under the reasonable assistance standard.” 

Cotto, 2016 IL 119006, ¶ 32, 51 N.E.3d 802.

¶ 40 Defendant maintains the supreme court’s comment in Cotto demonstrates he is entitled to 

reasonable assistance at the first stage of postconviction proceedings. The Third District 

addressed the supreme court’s comment in Garcia-Rocha. The Garcia-Rocha majority 

distinguished Mitchell—the authority the supreme court relied upon in making such a 

comment—as in that case the defendant was sentenced to death (Mitchell, 189 Ill. 2d at 320, 

727 N.E.2d at 261), and prisoners sentenced to death had a statutory right to the assistance of 

appointed counsel at the first stage of postconviction proceedings (725 ILCS 5/122-2.1(a)(1) 

(West 1992); People v. Brisbon, 164 Ill. 2d 236, 243, 647 N.E.2d 935, 938 (1995)). 

Garcia-Rocha, 2017 IL App (3d) 140754, ¶ 29. The majority found any right to reasonable 

assistance the prisoner in Mitchell may have had at the first stage of proceedings did not apply 

to the defendant, who was sentenced to a term of imprisonment and had no statutory right to 
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counsel at the first stage of proceedings. Id. The Garcia-Rocha dissent disagreed, finding the 

majority improperly narrowed the supreme court’s comment where the supreme court itself 

did not make such a distinction in its opinion. Id. ¶¶ 54-56 (McDade, J., concurring in part and 

dissenting in part). 

¶ 41 We find the decisions of our sister districts to be well-reasoned: (1) neither the Act nor case 

law indicates a prisoner sentenced to a term of imprisonment is entitled to reasonable 

assistance at the first stage of postconviction proceedings, (2) to find such an entitlement 

would require us to judicially disengage the guarantee of reasonable assistance from the 

underlying right to counsel at second-stage proceedings so that the former can exist 

independently of the latter, and (3) awarding such an entitlement would lead to disparate 

treatment among prisoners similarly situated except with regard to the means to obtain 

counsel. See Kegel, 392 Ill. App. 3d at 539-41, 913 N.E.2d at 31-32; Garcia-Rocha, 2017 IL 

App (3d) 140754, ¶¶ 27-34. We further decline to find such an entitlement based on an unclear 

comment by the supreme court in a case where (1) the court was not tasked with considering 

the issue, (2) the comment relied on distinguishable precedent, and (3) the court cited, but did 

not reject, the Second District’s holding in Kegel. 

¶ 42 Defendant asserts requiring him to seek relief through a successive postconviction petition, 

as the trial court suggested, is a severe penalty for counsel’s inadequate representation. 

Defendant maintains the penalty is severe because he would be unable to satisfy the 

cause-and-prejudice test. See generally People v. Smith, 2014 IL 115946, 21 N.E.3d 1172; 725 

ILCS 5/122-1(f) (West 2014). Given the posture of this case, we decline to express any view 

on whether defendant, who purportedly has letters between himself and counsel wherein he 

requests counsel to raise certain meritorious claims in his postconviction petition prior to the 

trial court’s ruling on the petition, may satisfy the cause-and-prejudice test if those letters and 

any supporting documentation are filed as part of his motion for leave to file a successive 

postconviction petition. See Kegel, 392 Ill. App. 3d at 542, 913 N.E.2d at 34 (declining to 

express any view on whether the quality of postconviction counsel’s performance could 

establish cause or whether it resulted in any prejudice). 

¶ 43 Based on the statutory language, the persuasive authority from our sister districts, and the 

absence of a clear ruling on this issue by the supreme court, we hold a prisoner is not entitled to 

reasonable assistance at the first stage of postconviction proceedings. Defendant was not 

entitled to reasonable assistance, and we reject defendant’s arguments grounded in such an 

entitlement. 

¶ 44 III. CONCLUSION 

¶ 45 We affirm the trial court’s judgment. As part of our judgment, we award the State its $75 

statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 

2014). 

¶ 46 Affirmed.