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______________________________________________________________________________ 201 9 IL App (1st) 181009

- U No. 1-18-1009 Order f iled 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 -Appell ee , ) Cook County. )
v. ) No. 13 CR 11765 ) DEXTER HUGHES , ) Honorable ) Dennis J . Porter, Defendant -Appell ant

. ) Judge, presiding.

JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Burke concurred in the judgment.
O RDER ¶ 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 D efendant 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 pres ented an arguable claimNo. 1-18-1009

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 convi cted 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 -orde re d clin ic al examination and a fitness hearing, defendant was found
fit to stand trial. During pretrial proceedings on September 4, 2013 , defe ndant informed the court
that he wished to proceed pro se
. The court admonish ed defe ndant about th e ramif ications of represent ing 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

wom an, who inqu ire d 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

. D efendant 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 i dentified d efendant in a ph otographic array. Later, at the police station , she identified the vehicle used in the robbery and saw police recover her stolen bag from th at vehicle

. ¶ 6 Chicago police officer David Evans tes tified that Yancy provided him with the license plate
number and description of the vehicle. Chicago police officer Michael Wrobel tes tified 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 sub poena 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 impose d a 19

- year sentence of imprisonment on each of the two robbery counts, as well
as a five

- year sen tence on the count of aggravated battery, with all sentences to run concurrently. ¶ 9 On direct appeal, defendant ( through appellate counsel) argued t hat 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 affirm ing 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 state s that he “believes that the appellate court erred in upholding
his conviction and s entence and that his s entence sh ould be re duc ed in according [ sic ] with the

st atute , giv ing him a time reduction. ” The petition identifies the issues as: (1) “WHETHER THE
PE TITIONER IS ENTI T LE D TO AN EVIDEN [TI]ARY HEARING WH E RE THER E EXISTS
A BONAFI DE [ sic ] CASE OF ACTUAL INNOCENCE” and (2) “WHETHER THE
PETITIONER WAS PRECLUDED FROM RECEIVING EFFECTIVE ASSI STA NCE OF
TRIAL AND APPELLATE COUNSELS? [ sic ]”

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¶ 11 In t he pet ition , 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 rel ev ant fact s of his case, showing that he was innocen[t]

. ”
D efendant also state s that at the time of tri a l “he was on medication” and “ should have not bee n representing himself.” ¶ 12 With respect to defendant’s claim of ineffective assistance of counsel , the petition states:

“ Had defense counsel conduc t ed a prop e r invest igation into this matter, he cou l d have f ound that the pet itioner[] was innocen[t] of the charges * * *. This is the reason, that peti tioner attempt ed to

r epresent 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 appellat e counsel, failed to present all co lorable issues for revie w on appeal. The petitioner had *** absolute[ly] no chance of challenging a conviction obtained by false pretenses. The pet itioner was enti t le d to pro per represent ation, without which a fair trial and representation on appeal was not to be had. Thus, ther e is a

rea sonable pro bability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ¶ 13 The petition’s “Conclusion” request s various relief , includ ing, inter alia , that the court

“ [c] onduct an evidentiary hearing” ; “ [r] everse petitioner’ s conv iction 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 allege d ineffective as sistance 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, d efen dant filed a time ly notice of appeal. ¶ 15 On appeal, defendant makes a single argument: that the court erred in summarily dismissing his petit ion 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 pet ition, it stated th e gist of a claim of ineffective assistance of appellate counsel

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

unreas onable” in failing to argue that his 19- year sentence was excessive , gi ven the nature of the
offens e and other factors, including defendant’s age, history of mental illness and drug addiction,
l ack of significant criminal background , and re habilitative potential. Defendant contends that he

was prejud ic ed by counsel’s failure to raise an excessive sentence argumen t on direct appeal,
because “ [i] t is at least arguable that, had counsel r aised it, [defendant] would have received a
sentence reduction or remand for re-s entencing .” ¶ 16 T he State responds that we should not consider defendant ’s argumen t 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 petit ion. The State acknowledges that the pet ition a sserts that appellate

counse l did not “present all colorable issues , ” bu t points out that the petition did not include a

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specific argument that appellate counsel was defici ent for fa iling to challenge defendant’s sentence
as excessive

. The State maintains that def endant is precluded from making this argument “for the first time on appeal .” ¶ 17 In his reply brief, d efendant argues that the pet ition “adequately presented” the ineffective assistance of appellate counsel claim now asserted on appeal. He contends that the petition was
suffic ient because it “ expressly rai sed the issue that his s entence sh ould be redu c ed a nd also allege d appellate counsel’s ineffectiveness for failure to ra ise co lorable 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 right s 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 inv olving the d eath penal t y conta ins three distin c t 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 dismis sal 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

cons trued. [Citation.] Nevertheless, ‘ nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to require a he arin g 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 peti tion without an eviden tiary 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 rig hts 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). O ur supreme court has held that “claims not raised in a petition cannot be argued for the fir st time on appeal” an d 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 I ll. 2d 498, 505-06 (2004). ¶ 23 In Jones , the supreme court acknowledged th at 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 inar t ful pleading which does not s urvive scru tiny under the
‘f

ri volity / patently without mer it’ standard of section 122-2.1, and i t

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is only du ring the appell ate process, when the discerning eyes of an

att orney are re viewing th e re cord , 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 attorn ey’s action s is c lea r— the attor ney is zealously gua rding the client’s right s and i s attempt ing to

conser ve judicial resou rces by rai sing the c laim exped itiously at the
f irst av ailable chance. Th ese goals are laudable, but they non etheless
conflic t with the natu re of appel late revie w and the strictures of the
Act.” Id. at 504-05.
O ur supreme court explained that, rather than attempt ing to argue such cl aims 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 reaf firmed 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 appellat e court opin ion); People v. Pendleton , 223 Ill. 2d 45 8, 475 (2006) ( holding that “the [Rule 605] admonishment issue
is forfeited because defendant did not r a ise the issue in eith er his pro se peti tion or an am ended

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peti tion ” and noting that the appellate cour t’s d ecision to discuss that iss ue was “yet anothe r

ex ample of [its] inappro priate propensity” to review issues raised for the first time on appeal). ¶ 25 This court has since rec ognized that “a defendant may not r aise clai ms for the first time on
appea l f r om 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

. Th e 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 admissib ility of gan g 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.
T he appellate court recognized that the peti tion alle ge d that defendant ’s counsel on direct appea l

wa s ineffective

. Id. ¶ 50. However, the Shief defendant’s petition “did not specif ically alleg e that his appellate attorney was in effective for fa iling to challen ge the a dmissibility of the gang
evidence” but instead “listed three [other] issue s that he cl aimed his appellate a ttorney 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 rais ing 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, de fen dant does not d ispute the prop osition that claims not raised in the petition
are waived . Rat her, 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 appea l— that
defendant’s counsel on direct appeal was ineffective for failing to argue that hi s s entence was
excessive

— was not raised in the petition. At most , defe ndant’s petition averred that his counsel on direct appeal “failed to present all colorable issues for review on appeal.” Even under a liberal
construction , th at 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 , not withstanding tha t the petition alleged other failures by appellate counsel. Id. ¶¶ 49 -53. Defen dant’s reply brief argues that Shief is distinguishable from the instant situation , because in his ca s e “the need for a se ntence reduction” was “indisputably asserted in the pro se petition” and is “support ed by a comprehe nsive
alle gation that dire ct appeal counsel wa s in ef fective for fa iling to raise colorable claims.” ¶ 28 We reject defend ant ’s argume nts for multip le reasons. First, a lthough we construe the allegations of a pro se petition liberally, the claim that defendant’s counsel on direct appeal “failed to p resent all co lorable issues for re view 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 canno t 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 petition er 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 sentenc e, th at request was not tied to any c laim of ineffe ctive assistance of appellate couns el. Indeed, the body of the peti tion makes no mention of his sentence, let alon e
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 i n 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, t he petition never claim ed that counsel on direct appeal was ineffective for fail ing to ra ise any sentencing issue. ¶ 30 Even after liberally construing the petit ion , we simply cannot conclude that it raised the specific argument a dv anced in this appea l. We thus agree with the State th at defendant’s argument
is waived

. See 725 ILCS 5/122 -3 (West 2018). Accordingly, we affirm the first

- stage dis missal of defendant’s petition without addressing the merits of his argument. ¶ 31 For the fore going reasons, we affirm the judgment of the circuit court of Cook County. ¶ 32 Affirmed.

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