People v. Lamb

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTOINE D…

Court: APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Date published: Aug 21, 2017

2017 Ill. App. 2d 150579 (Ill. App. Ct. 2017)

Opinion

No. 2-15-0579

08-21-2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTOINE D. LAMB, Defendant-Appellant.

PRESIDING JUSTICE HUDSON delivered the judgment of the court.

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). Appeal from the Circuit Court of Lake County. No. 09-CF-1720 Honorable Daniel B. Shanes, Judge, Presiding. PRESIDING JUSTICE HUDSON delivered the judgment of the court.
Justices Schostok and Birkett concurred in the judgment.

ORDER

¶ 1 Held: (1) Defendant failed to make a substantial showing of ineffective assistance of counsel based on his trial attorney's failure to file a motion to suppress statements he made while in police custody after requesting an attorney where defendant failed to establish prejudice as a result of the alleged deficient performance; and (2) remand for new second-stage proceedings under the Post-Conviction Hearing Act was unwarranted on the ground that postconviction counsel rendered unreasonable assistance. ¶ 2 Defendant, Antoine D. Lamb, appeals from the second-stage dismissal of his petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant argues that this cause should be remanded for an evidentiary hearing on his claim that his trial attorney was ineffective for failing to move to suppress his statement to police where the police continued to question him after he invoked his right to counsel. Alternatively, defendant contends that this cause should be remanded for new second-stage proceedings because postconviction counsel rendered unreasonable assistance by arguing against the merits of his claims and tacitly agreeing to the dismissal of his postconviction petition. Finding neither claim persuasive, we affirm.

¶ 3 I. BACKGROUND

¶ 4 The following facts are taken from our decision on defendant's direct appeal, People v. Lamb, 2012 IL App (2d) 100796-U. Defendant stood trial on three counts of a five-count indictment. Count I of the indictment charged criminal sexual assault by use of force (720 ILCS 5/12-13(a)(1) (West 2008), now codified at 720 ILCS 5/11-1.20(a)(1) (West 2016)). Count II of the indictment charged criminal sexual assault while holding a position of authority relative to the victim (720 ILCS 5/12-13(a)(4) (West 2008), now codified at 720 ILCS 5/11-1.20(a)(4) (West 2016)). Count IV of the indictment charged aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008), now codified at 720 ILCS 5/11-1.60(d) (West 2016)). Counts III and V of the indictment were nolle prossed.¹ The matter proceeded to a jury trial on May 10, 2010, at which the following evidence was presented. ¶ 5 S.S. testified that she was born on April 30, 1992, and was 17 years old at the time of the trial. S.S. lived in Round Lake with L.D. (her mother) and her three brothers. In April 2009, defendant also resided in the home. Defendant was L.D.'s boyfriend. S.S. testified that the family home has three levels. The basement is on the first level. The living room, kitchen, bathroom, and a computer room (which doubled as S.S.'s older brother's bedroom), are on the middle level. A family room and the rest of the bedrooms are on the top level. ¶ 6 S.S. testified that prior to April 2009, defendant was "a friend, father" to her. During the spring of 2009, she and defendant did not "have any problems" or "get in any arguments." The group acted "like a family" and would sometimes play cards together. S.S. testified that there was a card game on Saturday, April 25, 2009. Defendant, L.D., S.S., and her older brother were playing cards in L.D.'s room on the top floor of the home. S.S.'s two younger brothers were also in the house. Defendant and L.D. were drinking vodka. The card game stared around 9 or 10 p.m., and it went until midnight or 1 a.m. L.D. had one glass of vodka, and defendant drank the rest of the bottle. S.S. clarified that the bottle was not new, but there "wasn't that much missing when they started." However, S.S. testified that defendant was not acting abnormally and she could not tell if defendant was under the influence of alcohol. ¶ 7 When the game ended, S.S. went downstairs to the computer room to watch television. S.S. watched the end of a movie and then went to her bedroom. She closed her bedroom door, but did not lock it. Defendant was in his own room. S.S. noted that her brothers were in the family room, but she did not know if they were sleeping. S.S. got into her bed, wearing black track shorts, a tank top, underwear, a bra, and a sports bra. There were two blankets on the bed, but she only got under one of them. The lights were off. ¶ 8 S.S. heard her bedroom door open. Defendant entered S.S.'s room and got into bed with her. S.S. testified that defendant started talking to her about her dad and he asked her whether he (defendant) was a father figure to S.S. S.S. responded affirmatively. Defendant left after 15 or 20 minutes, and S.S. also left the room. She went downstairs for a short time, but returned to her room when she heard a door open and shut, believing defendant had gone into his room. This time, S.S. got under both of the blankets on her bed. Defendant soon returned to S.S.'s room and also got under both blankets. S.S. stated that defendant "actually started to touch [her this] time." S.S. testified that defendant touched "[her] butt and *** took off [her] shorts, and *** started touching [her] even more." Defendant also touched S.S.'s "vaginal area." Defendant then left the room. Defendant did not say anything during the encounter. ¶ 9 After defendant left, S.S. got up and put her shorts back on. She then returned to bed and laid there. Defendant came back a short time later. Defendant got back in bed and asked S.S. why she put her shorts back on. S.S. did not answer. Defendant told her to take them off, but S.S. did not comply. Defendant then removed S.S.'s shorts. According to S.S., defendant then "started touching [her] again, and then he actually tried to stick his penis inside [her] vagina area." Defendant "was on top of" her. S.S. "started to scream, 'oh, that hurts.' " Defendant then "covered [her] mouth, and he held [her] mouth." S.S. pushed defendant, and he left the room. Prior to leaving, he stated, "I'm still the same old grouchy Darnall."² This meant nothing to S.S., as she had never called defendant grouchy. S.S. estimated that defendant was in her room for about 20 minutes on the third occasion. She added that there was not a clock in her room. After defendant left, S.S. placed the underwear that she had been wearing in the corner of her closet and got dressed. She then went downstairs because she felt safer there. She fell asleep watching television. ¶ 10 S.S. testified that she did not tell anyone of the incident that night. She knew it would hurt her mother, as L.D. was "really in love" with defendant. She did not tell her mother anything the next day (a Sunday), for the same reason. ¶ 11 On Sunday, S.S. drove to Chicago with two of her brothers and defendant to visit her grandmother.³ S.S. intended to tell her grandmother of the incident. However, S.S.'s grandmother had been sick recently, and she was not feeling well when they visited. Since her grandmother was feeling sick, S.S. decided not to tell her. She spent the whole day at her grandmother's home. Although defendant drove S.S. and her siblings to her grandmother's home, he did not stay with the children the entire day. He left to go to work and returned later to pick them up. ¶ 12 S.S. testified that she went to school on Monday. She found one of her close friends and told her of the incident. Another friend arrived and saw that the girls were crying. S.S. told both of them what had happened. S.S.'s friends took her to speak to her coaches. Subsequently, L.D. took S.S. to the hospital. ¶ 13 On cross-examination, S.S. testified that her older brother had "a little bit" of the vodka that defendant was drinking prior to the incident. A glass was also poured for S.S., but she did not drink any of it, as "[i]t was during her track trial season." At the time people started going to bed, everyone was on the upper level of the house. S.S. acknowledged that she had made a written statement in which she said she went to the bathroom after defendant left her room. She explained that the bathroom she went to was downstairs. S.S. testified that she was already on her back the third time defendant entered her bedroom; however, in the written statement, she stated that defendant flipped her over. S.S. clarified that she had been on her side and defendant "turned [her] over." S.S. further acknowledged that she did not seek help from her mother or her brothers, who were close by. She stated that, during the next day while at her grandmother's house, she did not tell her brothers anything because she did not believe that they could do anything for her. S.S. agreed that she had gotten into trouble during the preceding February and had been punished severely by both L.D. and defendant. S.S. stated that she did not recall telling her friends that she hid in the closet after the incident. On redirect-examination, S.S. testified that she was not trying to get back at defendant and that she held no grudges against him in April 2009. ¶ 14 The State next called L.D., S.S.'s mother. L.D. testified that she was 40 years old and had four children—three boys and a girl. S.S. was born in 1993. L.D. resides in Round Lake with her children. L.D. stated that she and defendant had been involved in a relationship for four years. L.D. testified that defendant, who was born on October 19, 1977, was a father figure to her children. L.D. stated that defendant "enforced rules," "made sure that [the children] had what they needed," and "picked [the children] up from sports activities." Both L.D. and defendant disciplined the children. L.D. was not aware of any problems between defendant and her children. ¶ 15 L.D. recalled the card game on the night of April 25, 2009. She and her oldest son were drinking wine coolers, and defendant was drinking vodka. She only consumed one wine cooler, but defendant drank a lot of vodka. She opined that defendant was under the influence of alcohol that night. S.S. was not drinking, and L.D. had never seen her drink. After the game ended, L.D. stayed in her room, her oldest son went downstairs to clean the kitchen, S.S. went to her room, and defendant went downstairs. L.D. thought defendant was talking with her oldest son. She testified that defendant was wearing a black tank top and S.S. was wearing her pajamas, which were similar to capri pants, and a t-shirt. ¶ 16 L.D. fell asleep, and defendant came in a while later and woke her. She stated that defendant "tried to be intimate, but he couldn't be intimate, so he just got into bed and went to sleep." She did not recall what time it was. L.D. awoke in the middle of the night and went to the bathroom. She turned off the television and got back into bed. She awoke again because the bed was wet. L.D. stated that defendant "had used the bathroom in the bed." L.D. went to sleep on the couch, which was in her room. A while later, S.S.'s alarm sounded. S.S. did not turn it off, so L.D. went to turn it off. S.S. was not in her room. L.D. noted that S.S. occasionally slept in the living room. ¶ 17 L.D. spoke with S.S. the next day, having a "general conversation, like every Sunday." S.S. went with defendant and her brother to her grandmother's house. L.D. did not note anything out of the ordinary about S.S.'s behavior that day. On cross-examination, L.D. largely reiterated the testimony she gave during direct examination. She added that by the time S.S.'s alarm clock sounded, defendant had moved over to the couch with her. She also testified that she remained home all day on Sunday, and S.S. never told her about the incident that day. ¶ 18 The State next called Shawn S., one of S.S.'s younger brothers. At the time of the trial, Shawn was 14 years old. In April 2009, defendant resided with Shawn's family. Shawn's relationship with defendant was "pretty good." He recalled the card game on April 25, 2009. All of the adults were drinking alcohol and Shawn believed that defendant was under the influence. After the card game, defendant "was like falling over a bit" as he walked. Defendant told Shawn to go to bed. Shawn went to the family room and fell asleep on the floor in front of the television. As he was falling asleep, he heard a door shut twice. Shawn then slept through the night and did not notice anything out of the ordinary. On cross-examination, Shawn acknowledged that he did not know who opened and shut the doors. ¶ 19 Anhar M. next testified for the State. She stated that she is a close friend of S.S. On Monday, April 27, 2009, at about 7:20 a.m., Anhar arrived at school and went to her locker. S.S. was standing by the locker and appeared "kind of upset." S.S. told Anhar that she had been sexually assaulted over the weekend. The more S.S. talked, the more upset she became. Another girl then joined the conversation. They took S.S. to the bathroom so she could wash her face. They then "took [S.S.] to a few teachers that she trusted." Anhar testified that it was unusual that S.S. was upset and that she had not noticed S.S. behave similarly prior to this day. On cross-examination, Anhar stated that S.S. had told her that, after the incident, she hid in a closet for the rest of the night. ¶ 20 The State then called Sergeant Adam Arnold of the Round Lake police department. Arnold testified that the department received a report of a sexual assault at about 9 a.m. on April 27, 2009. Later that day, Arnold and his partner waited for defendant in front of his home so they could interview him. Defendant arrived at about 5 p.m. The officers approached defendant and identified themselves. Defendant accompanied them to a police facility for the interview. Defendant was not under arrest. Arnold read defendant Miranda warnings. Detective Robert Bell was also present. Defendant indicated he understood his rights and that he wished to speak to the officers. The interview started at about 5:30 p.m. ¶ 21 Defendant told Arnold that he had been dating L.D. for about four years and they reside together. He also stated that L.D.'s children are like children to him. Arnold asked defendant about the card game, and defendant related who was participating. He stated that he and L.D. were drinking. S.S. was not drinking. Defendant said that he had consumed an entire bottle of vodka. The card game ended about midnight. Defendant went to bed, passed out, and then woke up on the couch. Defendant initially stated he did not remember anything after the game until he woke up the next morning. However, he subsequently recalled certain details. About an hour into the interview, Arnold told defendant that S.S. had made an allegation that defendant had assaulted her. Defendant responded that he does not look at S.S. in that manner and that he is not that sort of person. After about 10 minutes, defendant stated that "if it happened, it was an accident." Defendant then stated, "I didn't do it. I don't remember, but it's possible if she says it." He acknowledged that he never knew S.S. to lie and stated that "she wouldn't make it up." No one else in the house had a reason to lie. Defendant said that his biggest fear regarding the case is that he "did it" and that he owed S.S. an apology. Arnold asked if defendant was still denying the allegation. Defendant replied that he was "not denying anything," but that he "just [did not] remember." Arnold asked defendant about the term "grouchy," and defendant said "that's what the kids call him." ¶ 22 Defendant also provided a written statement. In it, he stated that he was accused of doing something that was not in his character. He did not believe, however, that "a person [would] lie for no reason." He denied remembering anything from that night. However, he apologized to S.S. and L.D. The interview ended after defendant completed the written statement. ¶ 23 Arnold conducted a second interview of defendant the next day. Arnold again read defendant his Miranda rights, and defendant agreed to speak to him. Defendant initially stated that he did not remember anything after the card game. However, when asked whether he remembered seeing one of S.S.'s brothers, he acknowledged that he did. Defendant recalled one of the brothers entering another brother's room, where they were playing a video game. Defendant told them to shut off the game. Defendant also stated that "even when he's sober, his memory is not 100 percent." Arnold asked if defendant recalled getting into bed with S.S. Defendant replied, "I don't doubt that it probably happened." ¶ 24 On cross-examination, Arnold acknowledged that defendant was "completely cooperative" from the start of the investigation. When Arnold first related the accusation to defendant, he was upset and crying. Defendant then remained emotional throughout the entire interview. Arnold also testified that defendant remained cooperative during the second interview. ¶ 25 The State next called Elizabeth B., a friend of S.S. On Monday, April 27, 2009, Elizabeth went to school. When she arrived, she saw S.S. by a locker. S.S. appeared "very upset." Anhar was also present. After about five to seven minutes, Elizabeth and Anhar took S.S. to see some teachers. On cross-examination, Elizabeth testified that S.S. never told her that she hid in a closet all night, but Anhar did tell Elizabeth that S.S. had done so. ¶ 26 Detective Robert Bell of the Round Lake police department next testified for the State. Bell testified that the police received a complaint of a sexual assault. Bell was the lead detective. He interviewed S.S. on April 27, 2009, at approximately 11:30 a.m. L.D. was also present. Bell and S.S. spoke for an hour. S.S. was quiet and cried at times. Bell characterized S.S.'s demeanor as hesitant and nervous. After the interview, Bell met with Arnold. He also went to S.S.'s home to "conduct[] a walk-thru." He took pictures and collected evidence, specifically, the clothing defendant and S.S. were wearing on the night of the incident. On April 28, a nurse at Midwestern Regional Medical Center administered a "sexual assault evidence collection kit," which Bell collected from the hospital. ¶ 27 The State's next witness was Sarah Owen, a forensic scientist at the Northeastern Illinois Regional Crime Laboratory. Owen tested a pair of S.S.'s underwear. Chemical tests indicated the presence of semen. However, no seminal fluid was detected when Owen tested the oral, vaginal, and anal swabs taken from S.S. at Midwestern Regional Medical Center as part of the "sexual assault evidence collection kit." On cross-examination, Owen agreed that one of the tests she administered, an acid-phosphate test, "is not a confirmatory test" for the presence of semen. Further, she acknowledged that she did not perform any DNA testing on the fluids found on the underwear. Finally, Owen stated that she did not observe sperm or seminal fluid on any of the swabs that had been collected as part of the "sexual assault evidence collection kit." ¶ 28 The State then called Kenneth Pfoser, also a forensic scientist from the Northeastern Illinois Regional Crime Laboratory. Pfoser works in the DNA section and performed DNA analyses on three items pertinent to this case: a sample collected from S.S.'s underwear, a known saliva standard from defendant, and a known saliva standard from S.S. Pfoser testified that he separated the sample from S.S.'s underwear into a spermatozoa fraction and a non-spermatozoa fraction. The latter matched the known saliva standard taken from S.S. The former, however, "failed to yield a sufficient amount of DNA for analysis." On cross-examination, Pfoser stated that the term "spermatozoa fraction" is a term of art and it does not signify the presence of spermatozoa in the spermatozoa fraction. ¶ 29 Rebecca Singzon testified for the State that she is a registered nurse at Midwestern Regional Medical Center. She explained that she is a SANE nurse, which stands for "Sexual Assault Nurse Examiner." As a SANE nurse, Singzon performs physical examinations of sexual assault patients and collects evidence. Singzon conducted an examination of S.S. on April 28, 2009. She first obtained a history of the incident from S.S. Over defendant's objection, Singzon testified that S.S. told her "that her mom's boyfriend tried to have sex with her, but he stopped because she started screaming." Singzon then conducted a physical examination. She noted no trauma to S.S.'s genital region. Singzon explained that it was not unusual to find a lack of trauma in a sexual-assault examination. Singzon also performed an anal examination. Next, she collected swabs, hair combings, and fingernail scrapings. S.S. refused to submit to a speculum examination and a blood test. On cross-examination, Singzon agreed that she was unable to find any sign of trauma anywhere on S.S.'s body. Additionally, Singzon testified that S.S. was calm and cooperative throughout the examination. Following Singzon's testimony, the State rested. ¶ 30 Defendant made a motion for a directed verdict, which was denied. The trial court confirmed that defendant did not wish to testify. The defense then rested without presenting any evidence. Subsequently, the jury returned verdicts of guilty on one count of aggravated criminal sexual abuse and two counts of criminal sexual assault (one based on use of force and the other based on the fact that defendant held a position of authority relative to S.S.). Defendant's motion for judgment notwithstanding verdict or, alternatively, for a new trial was denied. ¶ 31 At a hearing on July 30, 2010, the trial court addressed the status of a pro se motion to suppress statements that defendant filed on August 27, 2009, prior to the commencement of his trial. In the motion, defendant moved to suppress the statement he gave to police as involuntary on two grounds. First, defendant stated that "[w]hile at the Round Lake Police Department [Sergeant] Arnold or [Detective] Bell never informed [him] of the more serious crimes for which [he was] charged until after [he had given] a written statement for an alleged lessor [sic] crime." Second, defendant stated that "[Sergeant] Arnold specifically told [him] to write to [his] family explaining how [he] feel[s], starting with being picked up." At a hearing on August 28, 2009, Judge Theodore S. Potkonjak acknowledged defendant's motion, but noted, "it is solely at the discretion of your attorney whether or not to file [a motion to suppress]." The next reference to the motion did not occur until the July 30, 2010, hearing, which was after the jury rendered its verdict, but prior to sentencing. At that time, Judge Daniel Shanes remarked as follows:

"[Defendant] apparently *** filed a document called motion to suppress statement on August 27th, 2009. That was before the case was assigned to me. I don't believe a hearing was ever held on that. Of course he was represented by counsel at the time, so it wasn't a motion properly before the court per se. But I've reviewed it nonetheless. And based upon all the issues raised in it and the allegations contained therein, even assuming they were true, it would not give rise necessarily to the remedy of suppressing the statement. So insofar as prejudice, the court finds none."

The matter then proceeded to a sentencing hearing. Ultimately, the trial court found that all three counts merged. The court imposed a sentence of seven years' imprisonment on the criminal sexual assault count based on use of force (720 ILCS 5/12-13(a)(1) (West 2008), now codified at 720 ILCS 5/11-1.20(a)(1) (West 2016)) and a term of mandatory supervised release of three years to natural life. Defendant then filed a notice of appeal. ¶ 32 Among the issues defendant raised on direct appeal was that he was denied a fair trial as a result of various evidentiary rulings made by the trial court. For instance, defendant claimed that the trial court erred in allowing Anhar to provide hearsay testimony that corroborated S.S.'s testimony that she had been sexually assaulted. Although we agreed that the trial court erred in permitting this testimony, we ultimately determined that this issue had been procedurally defaulted because defendant did not include the issue in his posttrial motion and the error did not rise to the level of plain error. Lamb, 2012 IL App (2d) 100796-U, ¶¶ 35-44. With respect to the issue of plain error, we found that the evidence was not closely balanced and that the error did not severely threaten the fairness of defendant's trial. Lamb, 2012 IL App (2d) 100796-U, ¶¶ 42-44. Likewise, we ultimately rejected defendant's other assignments of error and affirmed his conviction and sentence. Lamb, 2012 IL App (2d) 100796-U, ¶¶ 45-67. ¶ 33 On February 20, 2013, defendant filed a pro se petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). In the petition, defendant asserted the following grounds for relief: (1) he was denied his rights under the sixth amendment to the United States Constitution (U.S. Const., amend. VI) when, on April 27, 2009, during his interrogation by the Round Lake police department, the officers continued to question him after he requested an attorney; (2) he was denied the effective assistance of trial counsel as a result of his attorney's failure to file a motion to suppress his statement to police, where defendant told his attorney that the police denied his request for counsel and his attorney misled him about the allegations and existence of eyewitnesses; (3) he was denied his right to a fair trial under the sixth amendment of the United States Constitution (U.S. Const., amend. VI) because the trial court "admitt[ed] an impartial juror" who equivocated about the presumption of innocence; and (4) the trial court erred in failing to conduct a hearing on defendant's pretrial pro se motion to suppress his statement as involuntary. ¶ 34 Regarding his claims that he invoked his right to counsel during his custodial interrogation, claimant alleged as follows in his petition. Defendant spoke with his trial attorney about the "unlawful practices used by the Round Lake Police Department in order to secure a statement," including the denial of his request for counsel. Nevertheless, trial counsel was unwilling to file a motion to suppress the statement, explaining that because defendant signed a Miranda waiver, the court would believe the arresting officer over defendant. Defendant further asserted that he filed a pro se motion to suppress the statement. Although the trial court acknowledged the pro se motion, there was "never an independent determination to the voluntariness of the *** statement." Defendant stated that without objection from counsel, the statement "was allowed to be admissible at [his] trial" and "was considered heavily," but without the statement, "the questionable evidence presented against [him would have been] insufficient to support a finding of guilty." Defendant stated that he was not aware that this was a "challengable [sic] issue until reaching the appellate level" when counsel "inform[ed] him of the violation." Defendant attached various documents to his pro se petition, including his own signed and notarized affidavit, a copy of his pro se motion to suppress statement, and records showing he requested, unsuccessfully, any audio-video recordings of his interrogation pursuant to the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2012)). ¶ 35 In the affidavit attached to his petition, defendant stated that on April 27, 2009, Detective Bell and Sergeant Arnold met him outside his home and informed him that they needed to speak to him. The officers then searched defendant, handcuffed him, placed him in a squad car, and transported him to the police station. At the police station, the officers removed the handcuffs and escorted defendant to a small room. Defendant asked the officers why he was being arrested. Sergeant Arnold responded that he would explain after defendant signed a form giving the officers permission to speak to him. Defendant "obliged" and the officers asked him questions for over two hours. Eventually, Sergeant Arnold told defendant that S.S. accused him of touching her "on the breast and behind." Defendant denied it, but Sergeant Arnold told him that L.D. said defendant left their bedroom and S.S.'s oldest brother "gave a statement saying he witness [sic] it." Defendant then told Sergeant Arnold, "if they are saying this [he] need[s] to speak with a lawyer." At that point, Detective Bell spoke with Sergeant Arnold and exited the room. Twenty minutes later, Sergeant Arnold asked defendant, "why would she lie?" Defendant responded that he did not know and that he did not remember talking to S.S. Sergeant Arnold stated that if defendant did not remember talking to S.S., he would not remember whether he touched her. Defendant told Sergeant Arnold that the conduct described "is not in [his] character." Sergeant Arnold then asked defendant what his biggest fear is and told him that his family "wants to know how [he] feel[s] about the allegation." Defendant told Sergeant Arnold to bring the family in, but Sergeant Arnold stated that he could not. Defendant then "asked to call," but Sergeant Arnold again told him he could not. Sergeant Arnold informed defendant that he "could write," and defendant asked, "write what?" Sergeant Arnold told defendant he could not tell defendant what to write, but that defendant could "start with them picking [him] up." Defendant proceeded to write a "letter." When he was through, Sergeant Arnold instructed defendant to sign the document. Sergeant Arnold then took the letter and exited the room. Both Detective Bell and Sergeant Arnold returned and told defendant that "it was also said that [he] tried to sleep with [S.S.]" Defendant then asked, "what happened to the lawyer?" No one responded to defendant's inquiry. Defendant was then placed in a holding cell where he remained until Sergeant Arnold awoke him the next day. ¶ 36 On May 9, 2013, the trial court found that "at least one of the allegations present in the defendant's pro se post-conviction petition states the gist of a constitutional claim." Accordingly, the court appointed Ian Kasper as postconviction counsel to represent defendant. On September 4, 2014, postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013), indicating that he had consulted with defendant to ascertain his contentions of deprivations of constitutional rights, examined the record of the proceedings at the trial, and determined that there are no appropriate arguments or issues to raise in an amendment to defendant's pro se petition for postconviction relief. At a hearing on that same date, postconviction counsel appeared before the court, stated that he had spoken with defendant, and explained that he was not filing an amended postconviction petition. Counsel stated:

"Briefly, Judge, I did want to let the Court know the concerns that [defendant] had and very briefly why I'm not moving forward with them. Again, I'm not trying to make the State's argument for them; they're more than competent to do that themselves. But the primary issue, I think the primary issue, the reason I was appointed was at one point [defendant] had filed a pro se motion that he entitled I believe a Motion to Suppress. Let me see if I have the date of that handy. He attached it to his handwritten motion.

Could I have just a second, Judge? He filed on August 27, 2009 what he has attached as Exhibit 4 which is a Motion to Suppress Statement by his title. At the time he was represented by counsel, he was represented by counsel throughout the pendency of pretrial, pendency of the trial. He did file his two-paged Motion to Suppress. Judge Potkonjak was the judge sitting. The Court certainly has or can look at the record. Judge Potkonjak basically instructed [defendant] that while he has an attorney, he can't file motions. It is file stamped, but I believe there's a significant difference between something being file stamped by the clerk and someone being given leave to file something with the Court. So although it's file stamped and I use the word filed, it was filed as in put in the file; it was file stamped, but it was not actually—he was not actually given leave to file the motion. At no point was he appearing pro se.

The Court is certainly familiar with the case law. I'm going to briefly cite People v. Flynn, *** 792 N.E. 2d 527, which holds among other things that a pro se defendant has no right to a hybrid representation, has no right to file his own motions. If [defendant] had been pro se, he may have been given leave to file, and we'd be in a different situation.

If [defense counsel] *** had joined in the motion or filed their own motion, we might be in a different situation. Under the circumstances, Judge, having read the motion, even if everything factually stated in the motion was correct, it still doesn't rise to the level of a proper motion to suppress, and I don't think it would have suppressed his statement even if the Court had agreed with everything stated in it.

The next issue, Judge is there's also case law out there—I don't have the cite in front of me—but there is case law that says that even if an attorney were to file a motion on the day of trial, if the attorney essentially doesn't renew the motion or state anything about the motion, then it's considered moot, it's considered waived. So even if the motion had been properly filed, because he and his attorneys did not bring it up during or prior to the beginning of the trial, it was essentially a moot issue."

Postconviction counsel added that he did not see any additional issues that he could raise in a postconviction petition. Counsel further asserted that defendant informed him that he (defendant) "was either planning to or considering amending his own motion and adding some things to his motion." ¶ 37 On September 22, 2014, defendant filed, pro se, an amended postconviction petition raising two additional claims. First, defendant challenged the sufficiency of the evidence, citing alleged discrepancies in the trial testimony. Second, defendant challenged the propriety of Detective Bell's testimony before the grand jury. ¶ 38 On December 19, 2014, the State filed a motion to dismiss defendant's petition for postconviction relief. In general terms, the State argued that defendant's petition should be dismissed because: (1) defendant does not indicate in his petition the statutory basis or authority upon which relief should appropriately be granted; (2) the issues raised in the petition have been forfeited as they could have been raised on direct appeal but were not; and (3) the allegations raised in the petition lacked merit. At a hearing the same day, defendant's attorney stated that it was unlikely that he would respond to the motion to dismiss, noting that he had previously explained on the record why he did not amend the petition further and that "nothing has changed." The court then continued the matter for a hearing on the State's motion to dismiss. ¶ 39 A hearing on the State's motion to dismiss was held on January 14, 2015. At that hearing, the following colloquy occurred:

"THE COURT. Let me ask. Mr. Kasper, over a few months ago or so that this has been kicking around, you made a record regarding what your position on this is.

MR. KASPER: Briefly, essentially, I was not filing an amended petition or motion; and I tried to clearly explain based on the transcripts, based on the case law and my interpretation of the case law why I was not filing that.

THE COURT: Exactly.

MR. KASPER: I am still standing on—I am still standing on that. Nothing has changed in my mind. There has been a supplemental filed by [defendant]. That hasn't changed my mind. I don't think the case law has changed in a significant way to change my mind, and I have not had any other revelations or information that changes my mind."

The court then asked the parties if they had any additional argument they wanted to make. Both parties declined, with postconviction counsel reiterating that he would "stand on [defendant's] filed motions and petitions." The court then continued the matter for ruling. ¶ 40 On May 7, 2015, the trial court entered an order granting the State's motion to dismiss defendant's postconviction petition. In the course of its ruling, the court stated that postconviction counsel could have moved to withdraw based upon his determination that "the pro se allegations were without merit," but that it was permissible for counsel to remain on the case. As to the substance of the petition, the court determined, among other things, that defendant's claim to have invoked his right to counsel during his custodial interrogation was "affirmatively refuted by the record" where the pro se motion to suppress he filed prior to trial contained different grounds for relief. The court further ruled that defendant's claim of ineffective assistance of trial counsel for failing to pursue that issue was forfeited since it could have been raised on direct appeal. Following the dismissal of his postconviction petition, defendant initiated the present appeal.

1 In our decision on defendant's direct appeal, we incorrectly stated that counts III and IV of the indictment were dismissed before trial. Lamb, 2012 IL App (2d) 100796-U, n.1.

2 Defendant is sometimes referred to as "Darnall."

3 The record refers to the person this group went to visit as S.S.'s grandmother and as her great-grandmother. --------

¶ 41 II. ANALYSIS

¶ 42 On appeal, defendant argues that this cause should be remanded for an evidentiary hearing on his postconviction claim that his trial attorney was ineffective for failing to move to suppress his statements to the police. Alternatively, defendant asserts that this cause should be remanded for new second-stage proceedings because postconviction counsel rendered unreasonable assistance by arguing against the merits of his claims and tacitly agreeing to the dismissal of his postconviction petition. We address these issues in the order defendant presents them in his brief. Prior to doing so, however, we review the principles applicable to postconviction proceedings. ¶ 43 The Post-Conviction Hearing Act (Act) provides a mechanism by which a criminal defendant may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2012). To be accorded relief under the Act, a defendant must establish "a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both" in the proceedings which resulted in his or her conviction. 725 ILCS 5/122-1(a)(1) (West 2012). Because a postconviction proceeding is a collateral attack on the trial court proceedings, issues that were decided on direct appeal are barred by the doctrine of res judicata and issues that could have been raised on direct appeal, but were not, are forfeited. People v. Beaman, 229 Ill. 2d 56, 71 (2008). ¶ 44 The Act provides a three-stage process for the adjudication of a postconviction petition. People v. Johnson, 2017 IL 120310, ¶ 14. At the first stage, the trial court must, within 90 days after the petition is filed and docketed, independently review the petition and determine whether the allegations therein, if taken as true, demonstrate a constitutional violation or whether they are frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014); People v. Tate, 2012 IL 112214, ¶ 9. If a petition survives the first stage, it advances to the second stage, where counsel may be appointed to represent an indigent defendant. 725 ILCS 5/122-4 (West 2014); Tate, 2012 IL 112214, ¶ 10. After counsel determines whether to amend the petition, the State either answers the petition or moves to dismiss it. 725 ILCS 5/122-4, 122-5 (West 2014); Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); People v. Hansen, 2011 IL App (2d) 081226, ¶ 18. The trial court then determines whether the petition and any accompanying documentation make " 'a substantial showing of a constitutional violation.' " Tate, 2012 IL 112214, ¶ 10 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)). If no such showing is made, the petition is dismissed. Tate, 2012 IL 112214, ¶ 10. However, if the petition survives the second stage, it advances to the third stage where the trial court conducts an evidentiary hearing. Tate, 2012 IL 112214, ¶ 10. At the third-stage evidentiary hearing, the trial court serves as a fact finder, assessing the credibility of the witnesses, deciding the weight to be given testimony, and resolving any evidentiary conflicts. People v. Domagala, 2013 IL 113688, ¶ 34. ¶ 45 In this case, defendant's petition was dismissed at the second stage of the postconviction process. At the second stage, the defendant bears the burden of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). All well-pleaded facts not positively rebutted by the trial record are taken as true. Pendleton, 223 Ill. 2d at 473. As noted above, the circuit court does not engage in fact finding or credibility determinations at the second stage; rather, such determinations are made at the third stage of the postconviction process. Domagala, 2013 IL 113688, ¶¶ 34-35; People v. Coleman, 183 Ill. 2d 366, 385 (1998). Thus, the question raised in an appeal from an order dismissing a postconviction petition at the second stage is whether the allegations in the petition, liberally construed in favor of the petition and taken as true, are sufficient to warrant relief under the Act. People v. Sanders, 2016 IL 118123, ¶ 31; see also Domagala, 2013 IL 113688, ¶ 35 ("[T]he 'substantial showing' of a constitutional violation that must be made at the second stage *** is a measure of the legal sufficiency of the petition's well-pled allegations, which if proven at an evidentiary hearing, would entitle petitioner to relief." (Emphasis in original)). A circuit court's ruling on the sufficiency of the allegations in a postconviction petition is a legal determination. Coleman, 183 Ill. 2d at 388. As such, we review de novo a second-stage dismissal. Sanders, 2016 IL 118123, ¶ 31.

¶ 46 A. Motion to Suppress

¶ 47 Defendant first argues that this cause should be remanded for an evidentiary hearing on his postconviction claim that his trial attorney was ineffective for failing to move to suppress his statements to the police. More specifically, defendant contends that his postconviction petition and supporting affidavit made a substantial showing of ineffective assistance of counsel based on his trial attorney's failure to file a motion to suppress statements he made while in police custody after requesting an attorney. ¶ 48 As an initial matter, the State contends that defendant has forfeited his claim of ineffective assistance of trial counsel by failing to raise the issue on direct appeal. The State concedes that the forfeiture rule will be "relaxed" if (1) the evidentiary basis for the claim of ineffectiveness is not contained within the original trial court record or (2) the facts relating to the competency of trial counsel are newly discovered. See, e.g., People v. Steidl, 177 Ill. 2d 239, 250 (1997). According to the State, however, the "facts comprising defendant's claim of ineffective assistance of counsel were discernable [sic] from the appellate record and *** known to defendant and direct appeal counsel." In support of its position, the State cites language from defendant's postconviction petition providing that he learned that the continuation of questioning by police was an issue after he discussed the circumstances of his interrogation with appellate counsel. In response, defendant asserts that the forfeiture bar does not apply because his claim of ineffective assistance of counsel is premised on an allegation that the police continued to question him after he requested counsel and evidence of this allegation does not appear in the original trial court record. We agree with defendant. ¶ 49 Our supreme court recently noted that procedural default does not preclude a defendant from raising an issue on collateral review that depends upon facts not found in the record. People v. Veach, 2017 IL 120649, ¶ 47. In this case, defendant exercised his constitutional right not to testify. Thus, there was no evidence at trial that defendant invoked his right to counsel after initially waiving his Miranda rights. Furthermore, the record on direct appeal contains no indication why defense counsel disregarded defendant's alleged request to seek suppression on the basis that his custodial interrogation continued after he requested an attorney. Because defendant relies on facts outside the original trial court record, a postconviction proceeding is the proper forum to address defendant's claim of ineffective assistance of trial counsel. See People v. Bew, 228 Ill. 2d 122, 134 (2008) (citing Massaro v. United States, 538 U.S. 500, 504-06 (2003)) (noting that ineffective assistance of counsel claims are preferably brought on collateral review rather than direct appeal particularly where the record on direct appeal is insufficient to support a claim of ineffective assistance of counsel); but see Veach, 2017 IL 120649, ¶¶ 50-51 (finding record sufficient for the appellate court to consider on direct review the defendant's claim that trial counsel was ineffective for stipulating to the admission of recorded statements of the State's key witnesses where trial counsel provided a reason in open court for stipulating to the admission of the recorded statements). In so holding, we find unavailing the State's suggestion that this issue could have been raised on direct appeal because defendant discussed the circumstances of his interrogation with appellate counsel. In this regard, we point out that counsel on direct appeal was bound by the trial record in raising issues (see People v. Jackson, 28 Ill. 2d 37, 39 (1963) (noting that on direct appeal the appellate court would consider "only that which appears from the record") and the State does not point to any evidence in the original trial record that would have permitted defendant to raise this issue on direct appeal. ¶ 50 Claims of ineffective assistance of counsel are evaluated under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). To establish a claim of ineffective assistance of counsel, a defendant must establish (1) his or her attorney's performance was deficient, i.e., fell below an objective standard of reasonableness, and (2) he or she was substantially prejudiced by the deficient performance. Strickland, 466 U.S. at 687; People v. Smith, 195 Ill. 2d 179, 187-88 (2000). In addition, "where an ineffectiveness claim is based on counsel's failure to file a suppression motion, in order to establish prejudice under Strickland, the defendant must demonstrate that the unargued suppression motion is meritorious and that a reasonable probability exists that the trial outcome would have been different had the evidence been suppressed." People v. Henderson, 2013 IL 114040, ¶ 15. Because a defendant's failure to satisfy either part of the Strickland test will defeat a claim of ineffective assistance, a court is not required to address both prongs of the inquiry if the defendant makes an insufficient showing as to one. People v. Edwards, 195 Ill. 2d 142, 163 (2001). ¶ 51 As noted above, defendant asserts that his postconviction petition and supporting affidavit made a substantial showing of ineffective assistance of counsel based on his trial attorney's failure to file a motion to suppress statements he made while in police custody after requesting an attorney. Defendant contends that trial counsel's failure to seek suppression of his statements was objectively unreasonable because such a motion would have been successful. Moreover, defendant contends that trial counsel's conduct resulted in prejudice. He asserts that other than the complainant herself, there were no witnesses to the alleged conduct underlying the sexual assault charge in this case and no DNA evidence to corroborate complainant's testimony. Thus, he reasons, his statements to the police "were powerful pieces of evidence in support of the State's case, without which the outcome very likely would have been different." ¶ 52 The State responds that defendant's postconviction petition and supporting documents do not make a substantial showing of ineffective assistance of counsel. The State first asserts that defendant has failed to establish that trial counsel's conduct fell below a reasonable level of assistance. According to the State, trial counsel's decision not to seek suppression of defendant's statements to police was a strategic decision meant to bolster the defense theory that S.S.'s account was not credible. The State further asserts that defendant fails to establish prejudice. In this regard, the State posits that even if a motion to suppress statements had been granted, the result of the trial would not have been different because "S.S.'s testimony was clear and unwavering that she was sexually assaulted by defendant." ¶ 53 We resolve defendant's claim under the prejudice prong of Strickland. As noted above, to establish prejudice under the second prong of Strickland, one must prove that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Smith, 195 Ill. 2d at 188. "[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome—or put another way, that counsel's deficient performance rendered the result of the trial unreliable or fundamentally unfair." People v. Evans, 209 Ill. 2d 194, 220 (2004). Applying these principles to the record before us, we find that that there is no reasonable probability that the jury would have acquitted defendant even if trial counsel had successfully moved to suppress defendant's statements to the police. ¶ 54 Quite simply, even absent defendant's statements to the police, the evidence against defendant was overwhelming and uncontradicted. Indeed, as we noted on direct appeal, the evidence in this case was not closely balanced. Lamb, 2012 IL App (2d) 100796-U, ¶¶ 42, 51. The evidence presented at trial established that at the time of the events in question occurred, S.S. was 15 years old and defendant was 31 years old. S.S. resided with her three brothers, her mother (L.D.), and defendant. According to L.D., defendant was a father figure to her children. S.S. also represented that defendant was a "friend" and "father" to her. S.S. testified clearly that defendant got into her bed three separate times during the early hours of Sunday, April 26, 2009. The first time, defendant discussed his relationship with S.S. The second time, defendant removed S.S.'s shorts and touched various parts of her body, including the vaginal area. The third time, defendant attempted to insert his penis inside S.S.'s vagina. During the third encounter, S.S. screamed and defendant covered S.S.'s mouth with his hand. Defendant only left the room after S.S. started pushing defendant. S.S. testified that she did not tell anyone about the incident until Monday morning, when she spoke with one of her close friends. S.S. was eventually taken to the hospital, where she told the nurse that defendant had tried to have sex with her, but he stopped because she started screaming. Although some inconsistencies in S.S.'s testimony were elicited on cross-examination, they were minor and did not discredit S.S. See People v. Nitz, 143 Ill. 2d 82, 116 (1991) (finding that trial counsel's failure to impeach witness with respect to two minor inconsistencies did not result in prejudice under Strickland). The fact that there were no witnesses other than S.S. to the conduct underlying the sexual assault charge and no DNA evidence to corroborate complainant's testimony does not persuade us otherwise. See People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009) (noting that the testimony of a single witness, if positive and credible, is sufficient to sustain a conviction); People v. Wheeler, 401 Ill. App. 3d 304, 312 (2010) (finding that lack of physical evidence did not render the evidence so unreasonable, improbable, or unsatisfactory so as to disturb the jury's verdict of guilty); see also People v. Barrow, 2011 IL App (3d) 100086, ¶ 32 (finding that absence of DNA evidence not relevant to claim of actual innocence in light of overwhelming evidence of the defendant's guilt). Accordingly, we conclude that defendant has not established that, but for trial counsel's alleged error in failing to seek suppression of his statements to police on the basis that the police continued to question him after he invoked his right to counsel, there was a reasonable probability that the result of the trial would have been different. Therefore, we find that defendant has failed to make a substantial showing of ineffective assistance of counsel on this basis and we reject defendant's argument that we reverse the order granting the State's motion to dismiss and remand this matter for an evidentiary hearing on his claim.

¶ 55 B. Postconviction Counsel

¶ 56 Alternatively, defendant argues that this cause should be remanded for new second-stage proceedings because postconviction counsel rendered unreasonable assistance by allegedly arguing against the merits of his claims and tacitly agreeing to the dismissal of his postconviction petition. ¶ 57 The right to counsel in postconviction proceedings is statutory. People v. Lander, 215 Ill. 2d 577, 583 (2005). The Act requires postconviction counsel to provide a "reasonable level of assistance" to a defendant. 725 ILCS 5/122-4 (West 2014); Lander, 215 Ill. 2d at 583. Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes specific obligations on postconviction counsel to assure the reasonable level of assistance required by the Act. People v. Greer, 212 Ill. 2d 192, 204-05 (2004). Rule 651(c) requires a showing that postconviction counsel has: (1) consulted with the defendant to ascertain his or her contentions of deprivations of constitutional rights; (2) examined the record of the proceedings at the trial; and (3) made any amendments to the pro se petition necessary for an adequate presentation of the defendant's contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); Lander, 215 Ill. 2d at 584. "Fulfillment of the third obligation under Rule 651(c) does not require postconviction counsel to advance frivolous or spurious claims on defendant's behalf." Greer, 212 Ill. 2d at 205. Thus, when postconviction counsel determines that no meritorious issues are presented by the claims alleged in defendant's pro se petition, counsel may move to withdraw. See Greer, 212 Ill. 2d at 209 ("[T]he legislature did not intend to require appointed counsel to continue representation of a postconviction defendant after counsel determines that defendant's petition is frivolous and patently without merit."). ¶ 58 The filing of a certificate pursuant to Rule 651(c) creates a rebuttable presumption that postconviction counsel provided reasonable assistance. People v. Profit, 2012 IL App (1st) 101307, ¶ 19. A defendant may overcome this presumption by demonstrating that postconviction counsel failed to substantially comply with the duties mandated by the rule. Profit, 2012 IL App (1st) 101307, ¶ 19. We review de novo the issue of whether an attorney complied with the requirements of Rule 651(c). Profit, 2012 IL App (1st) 101307, ¶ 17. ¶ 59 Here, postconviction counsel filed a certificate pursuant to Rule 651(c), thereby creating a rebuttable presumption that counsel provided defendant with the reasonable level of assistance to which defendant was entitled under the Act. Defendant attempts to overcome this presumption by arguing that counsel argued against the claims set forth in his petition and tacitly agreed to dismissal. According to defendant, while it is not improper for postconviction counsel to conclude that the claims in a defendant's pro se petition lack merit, counsel's only recourse in such a situation is to file a motion to withdraw accompanied by an explanation of reasons for doing so. Defendant proffers that such a procedure not only honors an attorney's professional obligations, but also provides the defendant an opportunity to respond and either request new counsel or proceed pro se. Defendant contends that because postconviction counsel advocated against his claims without moving to withdraw from representation, he did not receive the reasonable level of assistance to which he was entitled under the Act and the matter should be remanded for new second-stage proceedings, including the appointment of new counsel. In support of his position, defendant directs us to two principal cases, People v. Shortridge, 2012 IL App (4th) 100663, and People v. Elken, 2014 IL App (3d) 120580. ¶ 60 In Shortridge, the defendant entered a negotiated plea to one count of criminal drug conspiracy. Shortridge, 2012 IL App (4th) 100663, ¶ 3. He later filed a pro se petition for postconviction relief claiming his trial attorney was ineffective for failing to adequately investigate his case and that the prosecutor knowingly presented false testimony to the grand jury. Shortridge, 2012 IL App (4th) 100663, ¶ 4. Attached to the petition was the defendant's own affidavit denying that he was involved in a drug conspiracy despite his guilty plea. Shortridge, 2012 IL App (4th) 100663, ¶ 4. The trial court appointed counsel to represent the defendant. Shortridge, 2012 IL App (4th) 100663, ¶ 4. Postconviction counsel filed a Rule 651(c) certificate, but did not amend the defendant's petition. Shortridge, 2012 IL App (4th) 100663, ¶ 4. The State then filed a motion to dismiss the petition. Shortridge, 2012 IL App (4th) 100663, ¶ 5. At a subsequent hearing, postconviction counsel announced that he was "going to confess the motion to dismiss." Shortridge, 2012 IL App (4th) 100663, ¶ 6. The trial court then entered an order dismissing the defendant's postconviction petition. Shortridge, 2012 IL App (4th) 100663, ¶ 6. Shortly after learning of the dismissal, the defendant filed pro se a motion to reconsider the trial court's ruling and a motion "for withdrawal of court[-]appointed counsel." Shortridge, 2012 IL App (4th) 100663, ¶ 7. The court conducted a hearing with all parties present, at which postconviction counsel opined that the allegations set forth in defendant's postconviction petition were "nonmeritorious," but that he did not see any reason to withdraw. Shortridge, 2012 IL App (4th) 100663, ¶¶ 8, 14. The court denied the relief requested by the defendant and directed him to the appeals process. Shortridge, 2012 IL App (4th) 100663, ¶ 8. ¶ 61 On appeal, the reviewing court observed that Rule 651(c) does not "obligate counsel to advance frivolous or spurious claims." Shortridge, 2012 IL App (4th) 100663, ¶ 13 (citing Greer, 212 Ill. 2d at 205). However, the court continued, "[i]f counsel believes that his client's claims are frivolous or without merit, his ethical obligation is to seek a withdrawal as counsel." Shortridge, 2012 IL App (4th) 100663, ¶ 13 (citing Greer, 212 Ill. 2d at 209). Based on the facts before it, the court concluded that the defendant did not receive the reasonable level of assistance to which he was entitled under the Act. Shortridge, 2012 IL App (4th) 100663, ¶ 16. The court reasoned that if counsel "found the allegations [in the defendant's postconviction petition] 'nonmeritorious,' even with any necessary amendments, then he should have moved to withdraw as counsel, not confess the State's motion to dismiss." Shortridge, 2012 IL App (4th) 100663, ¶ 14. The court therefore reversed the dismissal order and remanded the matter for the appointment of new counsel. Shortridge, 2012 IL App (4th) 100663, ¶ 15. The court specified that newly appointed counsel "should either represent defendant's interests in the proceedings or move to withdraw." Shortridge, 2012 IL App (4th) 100663, ¶ 15. ¶ 62 In Elken, postconviction counsel asserted that the defendant's postconviction petition had no merit, but he did not move to withdraw. Elken, 2014 IL App (3d) 120580, ¶¶ 19-20. The trial court then dismissed the defendant's postconviction petition "based upon arguments of defense counsel." Elken, 2014 IL App (3d) 120580, ¶ 21. On appeal, the reviewing court held that the trial court erred in allowing postconviction counsel to withdraw based solely on counsel's oral statements that defendant's petition lacked merit. Elken, 2014 IL App (3d) 120580, ¶ 32. The court explained that if appointed counsel concludes that a defendant's postconviction claims are frivolous or patently without merit at the second stage, counsel is obligated to file a motion to withdraw providing reasons for doing so, not simply confess that the defendant has no viable arguments. Elken, 2014 IL App (3d) 120580, ¶ 36 (citing Shortridge, 2012 IL App (4th) 100663, ¶¶ 13-14). The court explained:

"Our point is only that the confession is not necessarily wrong, but defendant should be afforded the opportunity to prepare for such an attack on his petition and to make any arguments in rebuttal. *** The appropriate procedure under these circumstances would be for appointed counsel to file a motion to withdraw, giving

defendant notice of the same. This allows defendant to prepare to argue against appointed counsel's motion. It further obviates any opportunity for a defendant to argue that he was blindsided by his appointed counsel's arguments." Elken, 2014 IL App (3d) 120580, ¶ 36.

Finding that the defendant did not have the opportunity to respond to appointed counsel's assessment of his petition, the Elken court vacated the dismissal of the petition and remanded the matter for further second-stage proceedings. Elken, 2014 IL App (3d) 120580, ¶¶ 36-37. ¶ 63 Here, defendant argues that postconviction counsel's "decision to argue against the merits of [his] claims and tacitly agree to the State's motion to dismiss is similar to the attorney conduct at issue in Shortridge and Elken." However, we find both Shortridge and Elken distinguishable from this case. First, unlike Elken, our reading of the record does not indicate that the trial court dismissed defendant's postconviction petition "based upon arguments of defense counsel." See Elken, 2014 IL App (3d) 120580, ¶ 21. Second, unlike Shortridge, postconviction counsel in this case did not "confess the State's motion to dismiss." See Shortridge, 2012 IL App (4th) 100663, ¶ 14. Rather, at the September 4, 2014, hearing, he told the trial court that he had spoken with defendant, requested leave to file a Rule 651(c) certificate, and explained his rationale for not amending defendant's pro se postconviction petition. In fact, postconviction counsel could not have "confessed" to anything contained in the State's motion to dismiss because the remarks at issue were made prior to the filing of the State's motion. See People v. Malone, 2017 IL App (3d) 140165, ¶ 13 (distinguishing Shortridge on the basis that postconviction counsel did not confess the motion to dismiss). More significantly, even if we were to categorize postconviction counsel's comments at the September 4, 2014, hearing as a tacit "confession," his remarks did not touch upon the precise issue defendant raises here, namely that trial counsel was ineffective for failing to seek suppression of defendant's statement to police based on the allegation that the officers continued to question him after he requested an attorney. Instead, postconviction counsel's discussion was limited to the allegations in defendant's original pro se motion to suppress. ¶ 64 We find this case more analogous to Malone, 2017 IL App (3d) 140165. In Malone, the defendant filed a pro se postconviction petition raising various claims. Malone, 2017 IL App (3d) 140165, ¶ 4. The trial court appointed counsel to represent the defendant. Malone, 2017 IL App (3d) 140165, ¶ 5. Postconviction counsel filed a Rule 651(c) certificate, but did not amend the defendant's postconviction petition. Malone, 2017 IL App (3d) 140165, ¶ 5. The State filed a motion to dismiss. Malone, 2017 IL App (3d) 140165, ¶ 5. At the hearing on the State's motion, postconviction counsel stated that while he disagreed with the argument set forth in the State's motion to dismiss, he would stand on the arguments set forth in the pro se postconviction petition. Malone, 2017 IL App (3d) 140165, ¶ 5. The defendant then made a statement, expounding on the arguments made in his postconviction petition. Malone, 2017 IL App (3d) 140165, ¶ 5. The trial court offered the defendant the opportunity to submit additional documentation for his claims, but the defendant did not do so. Malone, 2017 IL App (3d) 140165, ¶ 5. Ultimately, the trial court granted the State's motion to dismiss. Malone, 2017 IL App (3d) 140165, ¶ 5. ¶ 65 On appeal, the defendant argued that postconviction counsel should have either amended the postconviction petition or moved to withdraw as counsel if he determined the pro se petition lacked merit. Malone, 2017 IL App (3d) 140165, ¶ 7. Defendant asserted that postconviction counsel provided unreasonable assistance when he failed to take either of these actions. Malone, 2017 IL App (3d) 140165, ¶ 7. The reviewing court rejected the defendant's position, explaining:

"Postconviction counsel *** is not required to amend a defendant's pro se postconviction petition. [Citation.] Ethical obligations prevent counsel from doing so if the claims are frivolous. [Citation.] If the claims are frivolous, postconviction counsel has the option of standing on the allegations in the pro se petition or to withdraw as counsel. [Citation.] Further, the defendant does not make any recommendations as to how counsel could have improved the petition, other than stating that counsel did not attach any affidavits supporting the claims." Malone, 2017 IL App (3d) 140165, ¶ 10.

Similarly, the court found unpersuasive defendant's contention that if postconviction counsel could not amend the pro se petition, he should have withdrawn as counsel. The court stated that while the supreme court, in Greer, 212 Ill. 2d at 211, held that postconviction counsel may withdraw when the allegations in a postconviction petition are without merit and frivolous, the court did not "compel" withdrawal under such circumstances. Malone, 2017 IL App (3d) 140165, ¶ 12. The Malone court indicated that whether postconviction counsel stands on a pro se petition or withdraws as counsel "is a distinction without a difference." Malone, 2017 IL App (3d) 140165, ¶ 12. The court also found that the defendant was not prejudiced by the failure of postconviction counsel to withdraw as he was given the opportunity at the hearing on the State's motion to dismiss to explain his constitutional deprivations to the trial court. Malone, 2017 IL App (3d) 140165, ¶ 12. ¶ 66 As in Malone, defendant was given further opportunity to explain his constitutional deprivations to the court. Notably, subsequent to learning that postconviction counsel would not be amending his pro se petition, defendant was allowed to file two additional postconviction claims in an amended petition. Defendant maintains that any argument that he was given an opportunity to explain his constitutional deprivations to the court is disingenuous. Defendant notes that he was not in court on the date postconviction counsel explained why he was not amending the petition, the date the State filed its motion to dismiss, the date the court solicited arguments from the parties, or the date the court granted the State's motion. While defendant concedes that he was permitted to file an amended pro se petition with two extra claims before the State moved to dismiss, he asserts that this is not the same as an "opportunity to prepare for *** an attack on his petition and to make any arguments in rebuttal." See Elken, 2014 IL App (3d) 120580, ¶ 36. Defendant's position is unpersuasive, however, because the State did not make an oral argument at the hearing on its motion to dismiss and defendant does not suggest what additional arguments he could have made to rebut the State's written motion to dismiss. See Malone, 2017 IL App (3d) 140165, ¶ 10 (rejecting the defendant's claim that postconviction counsel should have amended defendant's postconviction petition where the defendant failed to make any recommendations as to how counsel could improve the petition).

¶ 67 III. CONCLUSION

¶ 68 For the reasons set forth above, we affirm the judgment of the circuit court of Lake County dismissing defendant's petition for relief pursuant to the Act at the second stage of the postconviction process. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978). ¶ 69 Affirmed.