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2019 IL App (1st) 181009-U 

No. 1-18-1009 

Order filed December 26, 2019 

Fourth Division 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party 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, ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

) 

v. ) No. 13 CR 11765 

) 

DEXTER HUGHES, ) Honorable 

) Dennis J. Porter, 

Defendant-Appellant. ) Judge, presiding. 

JUSTICE REYES delivered the judgment of the court. 

Justices Lampkin and Burke concurred in the judgment. 

ORDER 

¶ 1 Held: We affirm the trial court’s summary dismissal of defendant’s pro se postconviction 

petition where defendant waived his claim of ineffective assistance of appellate 

counsel by not including it in his petition and raising it for the first time on appeal. 

¶ 2 Defendant Dexter Hughes appeals from the trial court’s summary dismissal of his pro se 

petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1, et seq. (West 

2018)). He contends that dismissal was improper because the petition presented an arguable claim 
 

 

 

 

 

 

 

 

 

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that his appellate counsel was ineffective for failing to challenge his sentence as excessive on direct 

appeal. For the following reasons, we affirm. 

¶ 3 Following a 2014 bench trial, at which defendant represented himself, he was convicted of 

two counts of robbery and one count of aggravated battery in a public place. He was sentenced to 

two concurrent terms of 19 years and a concurrent term of five years’ imprisonment, respectively. 

¶ 4 Following a court-ordered clinical examination and a fitness hearing, defendant was found 

fit to stand trial. During pretrial proceedings on September 4, 2013, defendant informed the court 

that he wished to proceed pro se. The court admonished defendant about the ramifications of 

representing himself, and defendant indicated that he understood. 

¶ 5 At the ensuing bench trial, Regina Yancy testified that on May 24, 2013, she and Milton 

Knight left a store, each carrying a bag of shoes, when they were approached by a young man and 

woman, who inquired about the shoes. A short time later, a vehicle approached Yancy and Knight. 

Defendant exited the vehicle, along with the same man and woman they had encountered earlier. 

Defendant and the other man “beat[] [Knight] up” before taking Knight’s bag. The woman 

“snatched” Yancy’s bag from her, and the robbers drove away. Yancy reported the vehicle’s 

license plate number to police. She subsequently identified defendant in a photographic array. 

Later, at the police station, she identified the vehicle used in the robbery and saw police recover 

her stolen bag from that vehicle. 

¶ 6 Chicago police officer David Evans testified that Yancy provided him with the license plate 

number and description of the vehicle. Chicago police officer Michael Wrobel testified that he 

subsequently pulled over a vehicle driven by defendant, with the same license plate number. After 

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defendant was taken into custody, police recovered a green duffel bag from the trunk of the vehicle, 

which Yancy identified as hers. 

¶ 7 Defendant testified on his own behalf, denying any involvement in the robbery. Defendant 

did not call any other witnesses, stating that he “never had a chance to subpoena any of [his] 

witnesses.” The court found defendant guilty of two counts of robbery and one count of aggravated 

battery. 

¶ 8 At defendant’s sentencing hearing, the State pointed out that, due to prior convictions, 

defendant was subject to a mandatory Class X sentence, with a sentencing range of six to 30 years. 

The court imposed a 19-year sentence of imprisonment on each of the two robbery counts, as well 

as a five-year sentence on the count of aggravated battery, with all sentences to run concurrently. 

¶ 9 On direct appeal, defendant (through appellate counsel) argued that the trial court abused 

its discretion in failing to appoint standby trial counsel after he elected to proceed pro se. On June 

24, 2016, we issued an order affirming defendant’s convictions. People v. Hughes, 2016 IL App 

(1st) 141131-U. 

¶ 10 On January 29, 2018, defendant filed a pro se petition for postconviction relief under the 

Act. In the petition, defendant states that he “believes that the appellate court erred in upholding 

his conviction and sentence and that his sentence should be reduced in according [sic] with the 

statute, giving him a time reduction.” The petition identifies the issues as: (1) “WHETHER THE 

PETITIONER IS ENTITLED TO AN EVIDEN[TI]ARY HEARING WHERE THERE EXISTS 

A BONAFIDE [sic] CASE OF ACTUAL INNOCENCE” and (2) “WHETHER THE 

PETITIONER WAS PRECLUDED FROM RECEIVING EFFECTIVE ASSISTANCE OF 

TRIAL AND APPELLATE COUNSELS? [sic]” 

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¶ 11 In the petition, defendant goes on to state that: “because [he] knew of his own innocence, 

he ch[ose] to represent himself at trial.” Defendant claims that “an established trial attorney would 

have been able to bring out all the relevant facts of his case, showing that he was innocen[t].” 

Defendant also states that at the time of trial “he was on medication” and “should have not been 

representing himself.” 

¶ 12 With respect to defendant’s claim of ineffective assistance of counsel, the petition states: 

“Had defense counsel conducted a proper investigation into this 

matter, he could have found that the petitioner[] was innocen[t] of 

the charges * * *. This is the reason, that petitioner attempted to 

represent himself, however, not educated in the field of [law], he 

was not capable of representing himself. Therefore, a conviction 

was at hand. This situation was equally compounded by the fact that 

appellate counsel, failed to present all colorable issues for review on 

appeal. The petitioner had *** absolute[ly] no chance of challenging 

a conviction obtained by false pretenses. The petitioner was entitled 

to proper representation, without which a fair trial and 

representation on appeal was not to be had. Thus, there is a 

reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” 

¶ 13 The petition’s “Conclusion” requests various relief, including, inter alia, that the court 

“[c]onduct an evidentiary hearing”; “[r]everse petitioner’s conviction or order a new trial”; 

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“[g]rant the petitioner a reduction in sentence” and award “such other relief as may be just and 

possible.” 

¶ 14 On March 23, 2018, the trial court summarily dismissed the petition “as frivolous and 

patently without merit.” To the extent the petition alleged ineffective assistance of appellate 

counsel, the court noted that “it cannot be said that appellate counsel’s decision to not raise 

unspecified trial issues constituted incompetence.” On April 16, 2018, defendant filed a timely 

notice of appeal. 

¶ 15 On appeal, defendant makes a single argument: that the court erred in summarily 

dismissing his petition because it “presented an arguable claim that appellate counsel was 

ineffective for failing to challenge his 19-year sentence as excessive on direct appeal.” He contends 

that, liberally construing the petition, it stated the gist of a claim of ineffective assistance of 

appellate counsel. Defendant claims that it is at least “arguable that appellate counsel was 

unreasonable” in failing to argue that his 19-year sentence was excessive, given the nature of the 

offense and other factors, including defendant’s age, history of mental illness and drug addiction, 

lack of significant criminal background, and rehabilitative potential. Defendant contends that he 

was prejudiced by counsel’s failure to raise an excessive sentence argument on direct appeal, 

because “[i]t is at least arguable that, had counsel raised it, [defendant] would have received a 

sentence reduction or remand for re-sentencing.” 

¶ 16 The State responds that we should not consider defendant’s argument on appeal because it 

is waived. The State asserts that the appeal “raises an entirely new claim” that was not discussed 

in defendant’s pro se petition. The State acknowledges that the petition asserts that appellate 

counsel did not “present all colorable issues,” but points out that the petition did not include a 

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specific argument that appellate counsel was deficient for failing to challenge defendant’s sentence 

as excessive. The State maintains that defendant is precluded from making this argument “for the 

first time on appeal.” 

¶ 17 In his reply brief, defendant argues that the petition “adequately presented” the ineffective 

assistance of appellate counsel claim now asserted on appeal. He contends that the petition was 

sufficient because it “expressly raised the issue that his sentence should be reduced and also alleged 

appellate counsel’s ineffectiveness for failure to raise colorable issues.” 

¶ 18 Defendant filed his pro se petition pursuant to the Act, which provides a method for a 

criminal defendant to assert that his or her conviction was the result of a “substantial denial of his 

or her rights under the Constitution of the United States or of the State of Illinois or both.” People 

v. Hodges, 234 Ill. 2d 1, 9 (2009). 

¶ 19 “A postconviction proceeding not involving the death penalty contains three distinct stages. 

[Citations.] At the first stage, the circuit court must, within 90 days of the petition’s filing, 

independently review the petition, taking the allegations as true, and determine whether ‘the 

petition is frivolous or is patently without merit.’ [Citations]. If the court determines that the 

petition is either frivolous or patently without merit, the court must dismiss the petition in a written 

order. 725 ILCS 5/122-2.1(a)(2) (West 2006)).” Hodges, 234 Ill. 2d at 11. “[U]nder the Act, a 

petition which is sufficient to avoid summary dismissal is simply one which is not frivolous or 

patently without merit.” Id. That is, a pro se petition “may be summarily dismissed as frivolous 

or patently without merit only if the petition has no arguable basis either in law or in fact.” Id. at 

11-12. 

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¶ 20 At the first stage, “[t]he allegations in the petition must be taken as true and liberally 

construed. [Citation.] Nevertheless, ‘nonfactual and nonspecific assertions which merely amount 

to conclusions are not sufficient to require a hearing under the Act.’ ” People v. Reed, 2014 IL App 

(1st) 122610, ¶ 39 (quoting People v. Rissley, 206 Ill. 2d 403, 412 (2003)). “We review de novo 

the dismissal of a postconviction petition without an evidentiary hearing.” Id. ¶ 37 (citing Hodges, 

234 Ill. 2d at 9). 

¶ 21 We initially address the State’s waiver argument. For the reasons below, we agree that the 

argument made on appeal was not raised in the petition, and is thus waived. 

¶ 22 Section 122-2 of the Act requires that a postconviction petition “clearly set forth the 

respects in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2018). 

Section 122-3 of the Act provides that “Any claim of substantial denial of constitutional rights not 

raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2018). Our 

supreme court has held that “claims not raised in a petition cannot be argued for the first time on 

appeal” and has criticized the appellate court for “overlook[ing] the waiver language of section 

122-3 and *** address[ing] claims raised for the first time on appeal.” People v. Jones, 213 Ill. 2d 

498, 505-06 (2004). 

¶ 23 In Jones, the supreme court acknowledged that waiver occurs where, following the denial 

of a pro se petition, appellate counsel identifies and attempts to argue issues that could have been, 

but were not, raised in the petition: 

“Stated bluntly, the typical pro se litigant will draft an inartful 

pleading which does not survive scrutiny under the 

‘frivolity/patently without merit’ standard of section 122-2.1, and it 

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is only during the appellate process, when the discerning eyes of an 

attorney are reviewing the record, that the more complex errors that 

a nonattorney cannot glean are discovered. The appellate attorney, 

not wishing to be remiss in his or her duty, then adds the newly 

discovered error to the appeal despite the fact that the claim was 

never considered by the trial court in the course of its ruling. The 

thought process behind the attorney’s actions is clear—the attorney 

is zealously guarding the client’s rights and is attempting to 

conserve judicial resources by raising the claim expeditiously at the 

first available chance. These goals are laudable, but they nonetheless 

conflict with the nature of appellate review and the strictures of the 

Act.” Id. at 504-05. 

Our supreme court explained that, rather than attempting to argue such claims for the first time on 

appeal from the denial of a postconviction petition, “[t]he proper forum for the claim is a 

successive postconviction action.” Id. at 508-09. 

¶ 24 Our supreme court has since reaffirmed that it is improper for the appellate court, upon 

review of dismissal of a pro se petition, to consider arguments that were not actually raised in the 

postconviction petition. See, e.g., People v. Cathey, 2012 IL 111746, ¶ 21 (concluding that “[t]he 

appellate court below erroneously reached an issue that was not raised in defendant’s 

postconviction petition” and vacating the corresponding portion of the appellate court opinion); 

People v. Pendleton, 223 Ill. 2d 458, 475 (2006) (holding that “the [Rule 605] admonishment issue 

is forfeited because defendant did not raise the issue in either his pro se petition or an amended 

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petition” and noting that the appellate court’s decision to discuss that issue was “yet another 

example of [its] inappropriate propensity” to review issues raised for the first time on appeal). 

¶ 25 This court has since recognized that “a defendant may not raise claims for the first time on 

appeal from the trial court’s dismissal of his postconviction petition [citations.]” People v. Shief, 

2016 IL App (1st) 141022, ¶ 49; People v. Cole, 2012 IL App (1st) 102499, ¶13. The State argues 

that Shief is similar to the instant situation. The defendant in Shief argued, inter alia, that the trial 

court erred in summarily dismissing his petition “because it stated the gist of a claim that his 

appellate counsel was ineffective for failing to raise a challenge to the admissibility of gang 

evidence presented at trial.” Shief, 2016 IL App (1st) 141022, ¶ 2. However, the appellate court 

concluded that defendant waived that argument because it was not raised in his petition. Id. ¶ 4. 

The appellate court recognized that the petition alleged that defendant’s counsel on direct appeal 

was ineffective. Id. ¶ 50. However, the Shief defendant’s petition “did not specifically allege that 

his appellate attorney was ineffective for failing to challenge the admissibility of the gang 

evidence” but instead “listed three [other] issues that he claimed his appellate attorney should have 

raised[.]” Id. The appellate court explained: 

“Even liberally construing the contentions in the petition, we fail to 

see how defendant raised this claim below. Defendant did not raise 

this issue by simply asserting that his appellate counsel was 

ineffective. [Citation.] And defendant never discussed the 

inadmissibility of the gang evidence in the portion of his petition 

that discussed his appellate attorney’s performance. *** And 

without any indication that defendant was raising this claim in his 

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petition, the trial court did not address it in its written order 

dismissing defendant’s petition. [Citation.]” Id. ¶ 53. 

¶ 26 In this case, defendant does not dispute the proposition that claims not raised in the petition 

are waived. Rather, the issue is whether the claim of ineffective assistance was actually “raised” 

by the pro se petition. We agree with the State that the issue now asserted on appeal—that 

defendant’s counsel on direct appeal was ineffective for failing to argue that his sentence was 

excessive—was not raised in the petition. At most, defendant’s petition averred that his counsel on 

direct appeal “failed to present all colorable issues for review on appeal.” Even under a liberal 

construction, that general phrasing does not articulate any specific basis as to how or why counsel 

was allegedly deficient. 

¶ 27 In this respect, this case resembles Shief, which found that the issue of appellate counsel’s 

failure to challenge the admissibility of gang evidence was waived, notwithstanding that the 

petition alleged other failures by appellate counsel. Id. ¶¶ 49-53. Defendant’s reply brief argues 

that Shief is distinguishable from the instant situation, because in his case “the need for a sentence 

reduction” was “indisputably asserted in the pro se petition” and is “supported by a comprehensive 

allegation that direct appeal counsel was ineffective for failing to raise colorable claims.” 

¶ 28 We reject defendant’s arguments for multiple reasons. First, although we construe the 

allegations of a pro se petition liberally, the claim that defendant’s counsel on direct appeal “failed 

to present all colorable issues for review on appeal” is simply too broad and vague to apprise the 

trial court or the State of the nature or basis for such a claim. We cannot permit use of such an 

indefinite “catch-all” phrase to preserve any conceivable ineffective assistance claim; to do so 

would contradict the requirement that a petition “clearly set forth the respects in which petitioner’s 

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constitutional rights were violated.” 725 ILCS 5/122-2 (West 2018); see also Reed, 2014 IL App 

(1st) 122610, ¶ 57 (“[m]erely asserting that the petitioner received ineffective assistance of counsel 

does not meet [the] low threshold” under section 122-2 of the Act). 

¶ 29 Further, although the “Introduction” and “Conclusion” of defendant’s petition noted that 

he sought a reduction in sentence, that request was not tied to any claim of ineffective assistance 

of appellate counsel. Indeed, the body of the petition makes no mention of his sentence, let alone 

any of the mitigating factors (such as age, criminal background, or rehabilitative potential) that 

defendant now raises in his appellate argument. Furthermore, the petition’s only mention of 

appellate counsel is in conjunction with his claim that he was actually innocent: “This situation 

was equally compounded by the fact that appellate counsel, failed to present all colorable issues 

for review on appeal. The petitioner had *** absolute[ly] no chance of challenging a conviction 

obtained by false pretenses.” (Emphasis added). As such, the petition never claimed that counsel 

on direct appeal was ineffective for failing to raise any sentencing issue. 

¶ 30 Even after liberally construing the petition, we simply cannot conclude that it raised the 

specific argument advanced in this appeal. We thus agree with the State that defendant’s argument 

is waived. See 725 ILCS 5/122-3 (West 2018). Accordingly, we affirm the first-stage dismissal of 

defendant’s petition without addressing the merits of his argument. 

¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 32 Affirmed. 

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