{ "id": 4738560, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARIO FLORES, Appellant", "name_abbreviation": "People v. Flores", "decision_date": "1992-11-19", "docket_number": "No. 70205", "first_page": "264", "last_page": "297", "citations": [ { "type": "official", "cite": "153 Ill. 2d 264" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "114 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542174 ], "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0170-01" ] }, { "cite": "121 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201694 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0055-01" ] }, { "cite": "91 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092756 ], "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0047-01" ] }, { "cite": "145 Ill. 2d 43", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596222 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/145/0043-01" ] }, { "cite": "82 Ill. 2d 145", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474529 ], "weight": 2, "pin_cites": [ { "page": "161-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0145-01" ] }, { "cite": "127 Ill. 2d 12", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5563775 ], "year": 1980, "pin_cites": [ { "page": "53-54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0012-01" ] }, { "cite": "137 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251434 ], "weight": 3, "pin_cites": [ { "page": "134" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0065-01" ] }, { "cite": "345 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 Va. 370", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2068020 ], "opinion_index": 0, "case_paths": [ "/va/231/0370-01" ] }, { "cite": "844 F.2d 1446", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549154 ], "opinion_index": 0, "case_paths": [ "/f2d/844/1446-01" ] }, { "cite": "793 F.2d 621", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1587222 ], "opinion_index": 0, "case_paths": [ "/f2d/793/0621-01" ] }, { "cite": "98 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122553 ], "weight": 2, "pin_cites": [ { "page": "537" }, { "page": "535-38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0502-01" ] }, { "cite": "108 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130235 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0070-01" ] }, { "cite": "135 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256509 ], "weight": 4, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0018-01" ] }, { "cite": "146 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597409 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "146" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0109-01" ] }, { "cite": "416 U.S. 637", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84180 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/416/0637-01" ] }, { "cite": "30 B.C. L. Rev. 283", "category": "journals:journal", "reporter": "B.C. L. Rev.", "year": 1989, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "106 S. Ct. 2904", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "90 L. Ed. 2d 990", "category": "reporters:federal", "reporter": "L. 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MARIO FLORES, Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nDefendant, Mario Flores, appeals from an order of the circuit court of Cook County dismissing his petition and supplemental petition for post-conviction relief. Defendant\u2019s appeal lies directly to this court. 134 Ill. 2d R. 651(a).\nFACTUAL AND PROCEDURAL BACKGROUND\nDefendant\u2019s conviction stems from his participation in the shooting death of Gilbert Perez. At defendant\u2019s trial, the jury heard evidence that in the early morning hours of January 1, 1984, defendant and Victor Flores (Victor), while driving in defendant\u2019s sister\u2019s car, encountered Perez at the scene of an accident. Harry Gomez subsequently arrived at the scene in his car.\nNancy Lebr\u00f3n testified that, once at the scene, one of the men put his arms around Perez and talked to him \u201cas if they were good friends.\u201d Meanwhile, defendant returned to his car, removed a shotgun from the trunk, and pointed it in the direction of Perez. After one of his companions shouted at him, defendant put the gun into the backseat of the car and returned to the group. Perez then walked to defendant\u2019s car and sat in the front passenger seat. Defendant sat in the backseat and Victor drove away.\nVictor testified that, as he, defendant and Gomez approached Perez, Perez began to threaten them. Defendant retrieved a shotgun from his car but, at Gomez\u2019s direction, returned the gun to the car. Subsequently, Gomez put his \u201carm around\u201d Perez and led Perez to defendant\u2019s car, then Gomez returned to his car and drove to St. Paul Avenue. Victor, accompanied by defendant and Perez, followed Gomez in defendant\u2019s car. During the drive, defendant told Perez that Gomez was from the \u201cD\u2019s.\u201d Victor explained that the \u201cD\u2019s\u201d were a street gang affiliated with a larger gang known as the \u201cFolks,\u201d and that they were enemies of the gang to which Victor and defendant belonged.\nUpon arriving at St. Paul Avenue, defendant, along with Perez, and Gomez got out of their respective cars. Victor remained in defendant\u2019s car. Victor testified that, as he was turning the car around, he heard \u201cfour or five\u201d gunshots. In his side, rearview mirror, Victor saw Perez lying on the ground and defendant standing next to the body with a shotgun in his hand.\nFollowing trial, the jury found defendant guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 \u2014 2) and murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 \u2014 1(a)(1), (a)(2), (a)(3)). At the death penalty hearing requested by the State, the jury found that there existed one or more of the aggravating factors in section 9 \u2014 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9\u2014 1(b)), and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court then sentenced defendant to death.\nDefendant\u2019s sentence was stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, \u00a74(b); 134 Ill. 2d R. 603). Before his appeal was heard, defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 1 et seq.), which was denied following an evidentiary hearing. Defendant\u2019s appeal from the denial of post-conviction relief was consolidated with the appeal of his conviction and sentence. This court affirmed defendant\u2019s conviction and sentence, as well as the denial of post-conviction relief. (People v. Flores (1989), 128 Ill. 2d 66.) Subsequently, the United States Supreme Court denied defendant\u2019s petition for writ of certiorari. (Flores v. Illinois (1990), 497 U.S. 1031, Ill L. Ed. 2d 799, 110 S. Ct. 3291.) Defendant then instituted this present action for post-conviction relief. (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.) Upon the State\u2019s motion, the trial court dismissed defendant\u2019s petition without an evidentiary hearing. It is from that dismissal which defendant now appeals.\nIn this appeal, defendant requests that this court vacate his death sentence and remand for the imposition of a prison term or, in the alternative, remand for a new death penalty hearing. He raises three issues in support of his appeal for post-conviction relief. Specifically, defendant contends that he was denied effective assistance of counsel on direct appeal and in his first post-conviction proceeding in violation of the sixth amendment because (1) counsel failed to recognize and assert an error which occurred in the State\u2019s closing argument to-the jury and (2) counsel failed to assert as error the disparate sentencing between defendant and his co-defendant, Harry Gomez; and his death sentence violates the eighth amendment because (3) it is arbitrarily premised upon the actions of his codefendant, Gomez. We find that the trial court\u2019s dismissal of defendant\u2019s post-conviction petition was proper and, accordingly, we affirm.\nPOST-CONVICTION HEARING ACT\nThe Post-Conviction Hearing Act (Act) provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial. (People v. Eddmonds (1991), 143 Ill. 2d 501, 510.) The post-conviction proceeding is not an appeal per se but is, instead, a collateral attack on a prior judgment. (People v. Ruiz (1989), 132 Ill. 2d 1, 9.) To be entitled to post-conviction relief, the defendant must establish that a substantial violation occurred at the proceeding that produced the judgment under attack. (Ruiz, 132 Ill. 2d at 9; Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 1.) A trial court\u2019s determination on a post-conviction proceeding will not be reversed unless contrary to the manifest weight of the evidence. Eddmonds, 143 Ill. 2d at 514.\nDISCUSSION\nI. Successive Post-Conviction Petitions\nInitially, the State argues that defendant\u2019s present post-conviction claims are not properly before this court. Thus, at the outset, we must determine a defendant\u2019s entitlement to consideration of a second or subsequent post-conviction petition.\nDefendant, in his brief, makes no attempt to justify our consideration of his present post-conviction claims. However, at oral argument, defense counsel offered the following rationale for filing the second post-conviction petition. Defense counsel stated that upon this court\u2019s affirmance of both defendant\u2019s conviction and the denial of post-conviction relief, defendant\u2019s appellate counsel withdrew from the case. This court then appointed current counsel to represent defendant in any subsequent proceedings. Upon being appointed, current counsel noticed that prior counsel failed to assert as error in the prior proceedings the claimed errors now presented. Believing these unasserted errors to be meritorious, and in light of the seriousness of the penalty imposed in this case, defendant filed a second post-conviction petition.\nThe Post-Conviction Hearing Act contemplates the filing of only one post-conviction petition. (People v. Free (1989), 122 Ill. 2d 367, 375.) Successive petitions may, however, be allowed where the proceedings on the initial petition were deficient in some fundamental way. See Free, 122 Ill. 2d at 376, citing People v. Nichols (1972), 51 Ill. 2d 244, 246; People v. Hollins (1972), 51 Ill. 2d 68, 70; People v. Slaughter (1968), 39 Ill. 2d 278.\nThe filing of successive post-conviction petitions sets up two competing interests. On the one hand, there is the State\u2019s interest in providing a forum for the vindication of the petitioner\u2019s constitutional rights. On the other hand, the State has a legitimate interest in the finality of criminal litigation and judgments. \u201cWithout finality, the criminal law is deprived of much of its deterrent effect.\u201d (Teague v. Lane (1989), 489 U.S. 288, 309, 103 L. Ed. 2d 334, 355, 109 S. Ct. 1060, 1074.) The successive filing of post-conviction petitions plagues that finality.\nIn Illinois, the operation of waiver and res judicata has generally contributed to the finality of criminal litigation. Section 122 \u2014 3 of the Act provides that \u201c[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 3.) Additionally, \u201ca ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition.\u201d (Emphasis added.) (Free, 122 Ill. 2d at 376.) Further, any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived. (Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 2.1.) Finally, where a petitioner has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to the reviewing court, if not presented, are waived. (People v. Neal (1990), 142 Ill. 2d 140, 146; People v. Stewart (1988), 121 Ill. 2d 93, 104.) However, where fundamental fairness so requires, strict application of procedural bars may be relaxed. People v. Gaines (1984), 105 Ill. 2d 79, 91; People v. Hollins (1972), 51 Ill. 2d 68; People v. Slaughter (1968), 39 Ill. 2d 278, 285.\nWe note also that the statutory time limitation contributes to finality. (See Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 1.) This section, recently amended by the legislature, severely limits the time period in which a defendant may file a petition for post-conviction relief. Effective January 1992, no post-conviction proceeding shall be commenced more than 3 years, instead of 10 years, after the rendition of the final judgment. Ill. Ann. Stat., ch. 38, par. 122 \u2014 1, Historical & Statutory Notes, at 48 (Smith-Hurd Supp. 1992).\nWhere, however, the claimed error is one which could not have been presented in an earlier proceeding, procedural bars may be ineffectual in bringing about that finality which ordinarily follows direct appeal and the first post-conviction proceeding. In such cases, there is the potential that a second or subsequent post-conviction petition may be filed, thus defeating finality. People v. Stewart (1990), 141 Ill. 2d 107, is exemplary. The defendant in Stewart filed a second post-conviction petition. Counsel who represented the defendant in the second post-conviction proceeding was other than counsel who had represented the defendant at trial, on direct appeal and at his first post-conviction proceeding. In the second petition, the defendant asserted \u201ctiers\u201d of ineffective assistance against counsel who had represented him in prior proceedings.\nThe case now before us presents circumstances similar to those in Stewart. We have occasion, therefore, to consider the procedural rules which govern the filing of successive post-conviction petitions which present a question of effective assistance of counsel which could not have been presented in an earlier post-trial proceeding.\nWe first examine the propriety of bringing a second post-conviction petition which seeks relief from ineffective assistance of post-conviction counsel in the first post-conviction proceeding.\nAlthough there is a sixth amendment right to counsel at trial (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052), the right has not been found to apply in post-conviction proceedings (see Pennsylvania v. Finley (1987), 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993; see also Murray v. Giarrantano (1989), 492 U.S. 1, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (applying the rule to capital cases)). Indeed, in Illinois, \u201c \u2018the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will.\u2019 \u201d People v. Porter (1988), 122 Ill. 2d 64, 72, quoting People v. Ward (1984), 124 Ill. App. 3d 974, 978.\nBecause the right to counsel in post-conviction proceedings is derived from statute rather than the Federal or State Constitutions, post-conviction petitioners are guaranteed only the level of assistance provided for by the Act. That assistance has been defined by this court to mean a \u201creasonable\u201d level of assistance. (People v. Wright (1992), 149 Ill. 2d 36, 64, citing People v. Owens (1990), 139 Ill. 2d 351, 364.) Consequently, a petitioner cannot claim sixth amendment ineffective assistance of counsel in such proceedings. (See Wainwright v. Torna (1982), 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (holding that where there is no constitutional right to counsel there can be no deprivation of effective assistance); see also Coleman v. Thompson (1991), 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546.) Therefore, because the Act was designed to address only deprivations of constitutional magnitude, a petitioner\u2019s claim of ineffective assistance of post-conviction counsel at a prior post-conviction proceeding does not present a basis upon which relief may be granted under the Act.\nWe note, additionally, that the Act expressly provides that the petitioner may assert claims of a constitutional magnitude which occurred \u201cin the proceeding which resulted in [the petitioner\u2019s] conviction.\u201d (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 122 \u2014 1.) The purpose of the post-conviction proceeding is to permit inquiry into the constitutional issues involved in the \u201coriginal\u201d proceeding. (People v. Silagy (1987), 116 Ill. 2d 357, 365.) The Act does not, however, provide a forum to test the propriety of conduct at an earlier post-conviction proceeding. Thus, where a petitioner files a second or subsequent post-conviction petition wherein he claims ineffective assistance in his first post-conviction proceeding, consideration of those claims is beyond the scope of the Act.\nWe next address the propriety of presenting, in a second or subsequent post-conviction petition, a claim of ineffective assistance of appellate counsel. In contrast to post-conviction proceedings, a defendant is guaranteed the effective assistance of appellate counsel as of right. (Evitts v. Lucey (1985), 469 U.S. 387, 393-97, 83 L. Ed. 2d 821, 828-30, 105 S. Ct. 830, 834-37; People v. Avitia (1989), 178 Ill. App. 3d 968, 970.) Thus, the filing of successive post-conviction petitions, wherein the petitioner claims ineffective assistance of appellate counsel, requires us to consider the State\u2019s interest in finality in light of the petitioner\u2019s right to constitutionally guaranteed protections.\nWe recognize, as does apparently the State, the ease with which a petitioner may evade the operation of waiver and res judicata simply by couching his claims in the context of ineffective assistance. In that regard, we reiterate the rule that a petitioner cannot obtain relief under the Post-Conviction Hearing Act simply by \u201crephrasing previously addressed issues in constitutional terms\u201d in his petition. (People v. Gaines (1984), 105 Ill. 2d 79, 90; Silagy, 116 Ill. 2d at 371.) Such claims will be properly defeated by operation of waiver and res judicata. Further, we hold that where a petitioner merely attaches a constitutional label to factual allegations that do not themselves raise an issue of constitutional proportion the petition should be dismissed.\nThe sixth amendment right to counsel is the \u201c \u2018right to the effective assistance of counsel.\u2019 \u201d (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063, quoting McMann v. Richardson (1970), 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 773 n.14, 90 S. Ct. 1441, 1449 n.14.) The right to counsel ensures the defendant\u2019s right to a fair trial, the denial of which constitutes a denial of due process. \u201cAn ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable.\u201d (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 697, 104 S. Ct. at 2068.) Thus, where a petitioner, in a second or subsequent post-conviction petition, raises a meritorious sixth amendment claim, considerations of finality provide an ins\u00fcfficient basis for the courts to compromise the constitutional protections afforded a post-conviction petitioner under the Act and are, necessarily, overridden. Moreover, where a defaulted claim stems from the incompetency of appellate counsel and results in prejudice to the defendant, there can be no doubt that the proceeding on the first petition was deficient in a fundamental way. See People v. Slaughter (1968), 39 Ill. 2d 278 (cause remanded for consideration of second post-conviction petition on its merits where appointed counsel in the first post-conviction proceeding did not adequately represent defendant and second petition was dismissed on assumed ground that the Act contemplates that only one petition be filed).\nWe note, parenthetically, that the Supreme Court has recently considered the propriety of filing successive petitions in the context of habeas corpus relief. In the interest of finality, and in an effort to curtail \u201cabuse of the writ\u201d (28 U.S.C. \u00a72254 R. 9(b) (1988)), the Court, in McCleskey v. Zant (1991), 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, adopted the \u201ccause and prejudice\u201d test. Under McCleskey, where a petitioner files a second or subsequent application for habeas relief in which he alleges errors which could have been presented in a prior proceeding, he must demonstrate \u201ccause\u201d for failing to raise the error and actual \u201cprejudice\u201d resulting from the claimed errors. Even where cause and prejudice are absent, Federal courts may, nonetheless, entertain successive claims if necessary to prevent a fundamental miscarriage of justice.\n\u201cCause\u201d has been defined as \u201c \u2018some objective factor external to the defense [that] impeded counsel\u2019s efforts\u2019 to raise the claim\u201d in an earlier proceeding. (McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quoting Murray v. Carrier (1986), 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645.) In defining \u201cprejudice,\u201d the McCleskey Court cited to United States v. Frady (1981), 456 U.S. 152, 169, 71 L. Ed. 2d 816, 831, 102 S. Ct. 1584, 1595, quoting Henderson v. Kibbe (1977), 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1737, in which prejudice is defined as an error which \u201c \u2018so infected the entire trial that the resulting conviction violates due process.\u2019 \u201d Satisfaction of the \u201ccause and prejudice\u201d test will excuse a procedural default. (McCleskey, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470.) In that regard, we note that operation of the test is similar to, and accomplishes no more than, our fundamental fairness concept. See Gaines, 105 Ill. 2d at 91 (holding that where fundamental fairness requires, application of res judicata may be relaxed); see also Hollins, 51 Ill. 2d at 70 (holding that fundamental fairness dictates relaxation of waiver).\nAlthough attorney error short of ineffective assistance of counsel does not constitute cause, \u201c[constitutionally \u2018[ineffective assistance of counsel ... is cause.\u2019 \u201d (Emphasis added.) (McCleskey, 499 U.S. at 494, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quoting Murray v. Carrier (1986), 477 U.S. 478, 488, 91 L. Ed. 2d 397, 409, 106 S. Ct. 2639, 2645.) Whether the seemingly narrower test of prejudice required in a Strickland analysis satisfies the requisite showing of prejudice under Mc-Cleskey is uncertain. (See MacDonald v. Bender (D. Mass. July 1992), No. 86-3452-WF.) We note that, in either case, the inquiry is whether the defendant has been denied due process.\nIn sum, where a defendant files a second or subsequent post-conviction petition in which he claims sixth amendment ineffective assistance of prior post-conviction counsel, because there is no right to sixth amendment counsel in post-conviction proceedings, such claims do not present a basis upon which relief may be granted under the Act. Further, where a defendant files a second or subsequent post-conviction petition wherein he claims ineffective assistance in his first post-conviction proceeding, because the Act is confined to errors which occurred in the original proceeding only, such claims are beyond the scope of the Act.\nWhere, however, a defendant files a second or subsequent post-conviction petition in which he raises meritorious claims of ineffective assistance of appellate counsel, which could not have been raised in a prior post-trial proceeding, the defendant is entitled to consideration of those claims.\nII. Petitioner\u2019s Post-Conviction Claims\nAs we have stated, in his present attack on the denial of post-conviction relief, defendant alleges three errors, the first two of which are raised in the context of ineffective-assistance claims. We will address the viability of petitioner\u2019s third claimed error first.\nA. Application of Waiver and Res Judicata\nDefendant\u2019s third claimed error is that the application of the armed robbery as an aggravating factor to support the imposition of the death penalty was arbitrary.\nInitially, we note that this issue was not presented to the trial court in defendant\u2019s present post-conviction petition. Further, this issue was not raised on direct appeal or in defendant\u2019s first post-conviction petition. Because this issue could have been raised in defendant\u2019s first post-conviction petition, it is res judicata. (See Free, 122 Ill. 2d at 376.) Additionally, even if the issue were not res judicata, because defendant could have presented the issue on direct appeal, in his first post-conviction petition and, certainly, in his second post-conviction petition, the issue is waived. See Neal, 142 Ill. 2d at 146; Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 2.1.\nWe next address petitioner\u2019s ineffective-assistance claims. Petitioner asserts that prior appellate counsel\u2019s omission of certain errors on direct appeal and in the first post-conviction proceeding constituted ineffective assistance. The State argues that the alleged errors which underlie defendant\u2019s ineffective-assistance claims could have been raised in defendant\u2019s first post-conviction proceeding. The State urges that defendant couches the alleged errors in a claim of ineffective assistance merely to avoid the bar of res judicata and waiver.\nTrue, the errors which underlie petitioner\u2019s current post-conviction claims of ineffective assistance could have been raised in the prior post-trial proceedings. However, it is the failure to raise those claimed errors which forms the basis of defendant\u2019s ineffectiveness claim. Obviously, because defendant\u2019s ineffective-assistance claims concern errors which allegedly occurred on direct appeal and in the first post-conviction proceeding, and are asserted against the attorney who represented defendant in those proceedings, defendant\u2019s present claims could not have been raised in those prior proceedings. Thus, defendant\u2019s ineffectiveness claims are neither res judicata (see Free, 122 Ill. 2d at 376) nor waived (see Stewart, 121 Ill. 2d at 104). (See People v. Gaines (1984), 105 Ill. 2d 79 (holding that petitioner\u2019s post-conviction claim of ineffective assistance of counsel at trial and on direct appeal would not be barred as res judicata where same attorney represented defendant at trial and on direct appeal because it would be unreasonable to expect appellate counsel to raise and argue his own incompetency).) Moreover, in People v. Frank (1971), 48 Ill. 2d 500, 503, this court noted its earlier suggestion that the doctrine of waiver ought not to bar consideration of issues under the Act where the alleged waiver stems from incompetency of appellate counsel. The court stated that this \u201cnotion comports with related holdings that waiver will not apply where it would act as a denial of due process [citations].\u201d\nIncidentally, we note that in this case, because all claims of ineffective assistance of appellate counsel could have been presented in this present post-conviction proceeding, absent a showing that fundamental fairness requires consideration, an attempt to raise any such claim in a subsequent post-conviction petition would be effectively barred by operation of waiver and res judicata.\nNotwithstanding defendant\u2019s motivation, we believe that his present claims of ineffective assistance of appellate counsel are now properly before us. We conclude, for purposes of complete disposition of the issues presented in this appeal, that because defendant\u2019s claims of ineffective assistance of post-conviction counsel are beyond the scope of the Act, they are not properly before us. We therefore confine our discussion solely to defendant\u2019s claimed errors arising on direct appeal.\nB. Ineffective Assistance of Counsel\nStrickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, established a stringent two-pronged test for evaluating claims of ineffective assistance of counsel, which this court adopted in People v. Albanese (1984), 104 Ill. 2d 504. Under Strickland, a defendant must first demonstrate that counsel\u2019s performance was deficient, in that \u201ccounsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed by the Sixth Amendment.\u201d (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Secondly, a defendant must demonstrate that counsel\u2019s deficient performance substantially prejudiced his defense. To demonstrate prejudice, a defendant must show a reasonable probability that \u201cbut for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A defendant who contends that appellate counsel rendered ineffective assistance, for example by failing to argue a particular issue, must show that \u201cthe failure to raise that issue was objectively unreasonable\u201d and that, \u201cbut for this failure, his sentence or conviction would have been reversed.\u201d (People v. Caballero (1989), 126 Ill. 2d 248, 270.) Both prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of counsel.\nA court need not consider whether counsel\u2019s performance was deficient prior to examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) Where the ineffectiveness claim can be disposed of on the ground that the defendant did not suffer sufficient prejudice, the court need not determine whether counsel\u2019s performance constituted less than reasonably effective assistance. People v. Eddmonds (1991), 143 Ill. 2d 501, 512; Albanese, 104 Ill. 2d at 527.\nProsecutor\u2019s Closing Argument\nDefendant first contends that the prosecutor\u2019s rebuttal closing argument to the jury at the death penalty hearing diminished the jury\u2019s sense of responsibility in violation of Caldwell v. Mississippi (1985), 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633. The State maintains that there was no Caldwell violation.\nThe record reveals that in rebuttal closing argument at the aggravation phase of defendant\u2019s sentencing hearing, the following colloquy occurred: We note also that in his opening statement at defendant\u2019s sentencing hearing, the prosecutor advised the jury that by the signing of the verdict form, \u201cthat would allow the defendant to receive the death penalty in this case.\u201d\n\u201cMR. BRADY [Assistant State\u2019s Attorney]: You are asked to decide a question. The question here is does Mario Flores fit into the law that states that everyone who commits murder shall be sentenced to the death penalty unless there are sufficient mitigating circumstances to preclude. Your decision [is whether] there will be other mitigating circumstances to preclude this court from sentencing Mario Flores to the ultimate penalty.\nMR. BRADY: We\u2019re asking you to go back there, read the instructions, read all the instructions. You are not the sentencing party. This court sentences this man.\nMR. JOHNSON [Defense Counsel]: Objection, Judge.\nMR. BRADY: Read it in the instructions.\nTHE COURT: I\u2019ll read it.\nMR. BRADY: It says in the instruction, you will be instructed by Judge Bailey that if there are no mitigating factors or \u2014 if you decide to sign the form the Court must sentence the Defendant to death. The Court is here. You are the jury. He does the sentencing in this courtroom.\nTHE COURT: Ladies and gentlemen, I\u2019ll talk to you for the last time before you go and begin your deliberations.\u201d (Emphasis added.)\nIn Caldwell, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633, the prosecutor told the sentencing jury that its decision would not be a final decision because it was subject to automatic review by the State supreme court. The trial court overruled defense counsel\u2019s objection and further expressed that the information was proper for the jury to hear. On review, the Supreme Court found that the prosecutor\u2019s statements misled the jury to believe that the responsibility for determining the appropriateness of the defendant\u2019s death rested elsewhere.\nIn determining whether the remarks were violative of the defendant\u2019s constitutional rights, the Court in Caldwell focused on the nature of the remarks and the trial court\u2019s response. (Caldwell, 472 U.S. at 339-40, 86 L. Ed. 2d at 246,105 S. Ct. at 2645.) Because the Court could not say that the remarks \u201chad no effect on the sentencing decision,\u201d the Court held that the sentence did not meet the eighth amendment standard of reliability. Caldwell, 472 U.S. at 341, 86 L. Ed. 2d at 247,105 S. Ct. at 2646.\nThe \u201cno effect\u201d language in Caldwell has created a growing controversy, at least in the Federal circuits, concerning the appropriate standard of review of Caldwell claims. The Fifth Circuit maintains that by the language in Caldwell the Supreme Court erected a \u201cno effect\u201d standard of review. (See Sawyer v. Butler (5th Cir. 1989), 881 F.2d 1273.) The Tenth and Eleventh Circuits have rejected the \u201cno effect\u201d standard, construing it to require a per se reversal merely upon a finding of improper remarks. The Tenth Circuit has, instead, adopted a \u201csubstantial possibility\u201d standard (see Hopkinson v. Shillinger (10th Cir. 1989), 888 F.2d 1286), while the Eleventh Circuit has adopted a \u201cfundamental fairness\u201d approach (see Tucker v. Kemp (11th Cir. 1986), 802 F.2d 1293). The Supreme Court has not spoken on the breadth of the \u201cno effect\u201d language in Caldwell.\nRegardless of the varying standards of review in the different Federal circuits, the scope of those courts\u2019 analyses has been expansive, involving more than simply an evaluation of the improper remarks. See Sawyer, 881 F.2d at 1286-87 (\u201cno effect\u201d test \u2014 inquiry is whether under all circumstances, including entire trial record, the State misled the jury); Hopkinson, 888 F.2d at 1295-96 (\u201csubstantial possibility\u201d test \u2014 evaluation requires two-step process: (1) determination of whether remark tends to shift responsibility; (2) evaluation of effect of statement including consideration of jury instructions); Tucker, 802 F.2d 1293 (\u201cfundamental fairness\u201d test \u2014 consideration given to entire sentencing proceeding and jury instructions).\nThis court has not previously articulated a standard for evaluating Caldwell claims. (But see People v. Howard (1991), 147 Ill. 2d 103, 164 (court stated, \u201cwe do not believe that the misstatements now challenged had any effect on the jury\u2019s deliberations\u201d).) However, we are persuaded that the seemingly more stringent \u201cno effect\u201d standard is appropriate. (See Darden v. Wainwright (1985), 477 U.S. 168, 196, 91 L. Ed. 2d 144, 167, 106 S. Ct. 2464, 2479 (Black-mun, J., dissenting, joined by Brennan, Marshall & Stevens, JJ.) (stating that the Darden majority \u201crejects the \u2018no effect\u2019 test set out in Caldwell\u201d); Moore v. Blackburn (1986), 476 U.S. 1176, 90 L. Ed. 2d 990, 106 S. Ct. 2904 (Marshall, J., dissenting, joined by Brennan, J. (the authoring justice in Caldwell, Justice Marshall noted in dissenting from a denial of certiorari that under Caldwell, the petitioner\u2019s sentence could not stand unless the asserted error \u201chad no effect on the sentencing decision\u201d)); see also Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes That Divide Sentencing Responsibility Between Judge and Jury, 30 B.C. L. Rev. 283, 335 (1989).) However, as Sawyer teaches, adoption of the \u201cno effect\u201d standard, or any particular standard for that matter (see Hopkinson, 888 F.2d at 1295-96; Tucker, 802 F.2d 1293), does not require us to abandon our previous decisions on asserted Caldwell claims.\nCertain factors guide us in our evaluation. The Caldwell Court, in gauging the State\u2019s conduct, considered that the prosecutor\u2019s remarks were \u201cfocused, unambiguous and strong\u201d and were not corrected by an appropriate instruction (see Caldwell, 472 U.S. at 339-40, 86 L. Ed. 2d at 246, 105 S. Ct. at 2645). These factors were regarded by the Court as significant in its distinction of Donnelly v. De Christoforo (1974), 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868, an earlier case analyzing prosecutorial comments. We do not view, and Caldwell does not suggest, these factors as exhaustive in the analysis of an asserted Caldwell violation.\nPrior decisions of this court are also instructive on the scope of Caldwell and its applicability to the statements made by the prosecutor in this case. When confronted with a Caldwell claim, in addition to the factors relied upon in Caldwell, this court has evaluated the comments in the context of the entire sentencing proceeding (see, e.g., People v. Johnson (1991), 146 Ill. 2d 109; People v. Fields (1990), 135 Ill. 2d 18); considered whether the jury instructions and the verdict forms accurately set forth the' law (see, e.g., Fields, 135 Ill. 2d 18; People v. Perez (1985), 108 Ill. 2d 70); and has even considered the balance between aggravating and mitigating factors at sentencing (see, e.g., Howard (1991), 147 Ill. 2d 103). The relevant inquiry, then, is whether in consideration of all facts and circumstances, the State has misled the jury regarding its sentencing role. No single factor is necessarily dispositive.\nThe State urges that the prosecutor\u2019s \u201centire\u201d rebuttal closing argument was invited by the emotional appeal of defense counsel in his preceding argument, in which he characterized the jurors as potential murderers.\nEven conceding that the prosecutor\u2019s comments were invited, we fail to see how that fact makes it any less likely that the jury was misled. A similar invited error argument was rejected in Caldwell, 472 U.S. at 336-37, 86 L. Ed. 2d at 244, 105 S. Ct. at 2643-44, and in People v. Yates (1983), 98 Ill. 2d 502, 537, a pre-Caldwell case. The critical inquiry is whether the objectionable comments improperly diminished the jury\u2019s sense of responsibility.\nWe first consider the nature and content of the prosecutor\u2019s remarks. Pursuant to the statutory scheme in Illinois, it is the jury\u2019s role to determine whether a defendant shall be sentenced to death. (See Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(g).) The capital sentencing jury bears the sole responsibility for that determination, and it may \u201cnot be informed either directly or by implication that this responsibility is shared or rests with the .trial court.\u201d (People v. Fields (1990), 135 Ill. 2d 18, 57.) Once the jury determines that death is the appropriate sentence, the judge must so sentence the defendant. See Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(g).\nA literal reading of the sentencing statute suggests that the prosecutor\u2019s statement that the jury \u201cwas not the sentencing party\u201d was a correct statement of the law. However, the proper assessment of the correctness of the statement requires an understanding of the varying functions of judge and jury in a capital sentencing proceeding. The jury determines the appropriateness of a death sentence, while the judge imposes the sentence. (See Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(g).) Significantly, the judge is bound by the jury\u2019s determination. Thus, even though it is the judge who imposes the sentence, the jury is, in effect, the sentencing party. Although we cannot wholly agree with defendant that the prosecutor\u2019s statement was incorrect, we nonetheless believe that the statement had the potential to mislead the jury concerning its sentencing responsibility. Thus, we will examine the statement closely to determine its effect.\nWe cannot, however, consider the statement in a vacuum; we must, instead, evaluate the remark in the context of the entirety of the prosecutor\u2019s argument. (See Darden, 477 U.S. at 179, 91 L. Ed. 2d at 156, 106 S. Ct. at 2470.) Though the prosecutor conveyed to the jury that it was not the sentencing body, he also informed the jury that if it decided to sign the verdict forms, the court must sentence defendant to death. The remark concerning the verdict forms clearly indicated to the jury the gravity of its task. We, nevertheless, perceive the remarks to have been confusing and ambiguous, a finding which defendant would assert is sufficient to support a Caldwell claim. We would disagree with that assertion.\nThere is a wealth of Federal and State court decisions which have evaluated assertions of a violation of Caldwell. Our review of decisions that have invalidated sentencing decisions under Caldwell involved prosecutorial remarks that clearly and unequivocally shifted the ultimate sentencing responsibility away from the jury. (See Wheat v. Thigpen (5th Cir. 1986), 793 F.2d 621 (jury told that death penalty decision would not be final and if jury made a mistake a reviewing court would send case back); Mann v. Dugger (11th Cir. 1988), 844 F.2d 1446 (jury repeatedly told during guilt and sentencing phase of trial that its decision was only an \u201cadvisory\u201d recommendation and that sentencing decision was not on its shoulders).) Though the comments here were potentially misleading, they were not clear or focused in attempting to shift the sentencing responsibility as were the comments in Caldwell, Wheat, or Mann. That notwithstanding, having determined that a portion of the prosecutor\u2019s comments were potentially misleading, we do not yet end our analysis.\nWe also consider the trial court\u2019s response to defense counsel\u2019s objection. Defendant maintains that the trial court\u2019s response, viz., \u201cI\u2019ll read it,\u201d merely confused the jury and had no curative effect. He invites our attention to People v. Yates (1983), 98 Ill. 2d 502, 535-38, apparently to demonstrate that a curative instruction will not always remedy a Caldwell violation.\nWe continue to agree with Yates. Further, we agree \u2022with defendant that the trial court\u2019s response did not constitute a curative instruction and, as such, it had no remedial effect. Thus, Yates is inapposite.\nDefendant characterizes the court\u2019s response as an endorsement of the \u201cincorrect\u201d remarks. He then attempts to distinguish People v. Fields (1990), 135 Ill. 2d 18. In Fields, in addition to arguing that the jury would be making a recommendation to the court, the prosecutor commented that the jury was not going to be sentencing the defendant to death. This court found no reversible error because, among other things, the trial judge twice admonished the jury that its decision regarding the death penalty was binding on the court. Defendant here argues that, in contrast to the present case, the trial court in Fields did not endorse the improper comments, and immediately informed the jury of the effect of its determination.\nWe do not view the court\u2019s assertion of its function to instruct the jury as an endorsement of any \u201cimproper\u201d comments. Although our preference would have been for the trial court to give an instruction to clarify the responsibilities of the judge and jury, the fact that the court responded otherwise did not automatically convert its response into an endorsement of the prosecutor\u2019s argument.\nBefore continuing with our analysis, we note that Frye v. Commonwealth (1986), 231 Va. 370, 345 S.E.2d 267, a case upon which defendant relies, is inapposite. In Frye, the trial court put its imprimatur on the prosecutor\u2019s improper remarks. Here, as we have discussed, the trial court did not endorse the prosecutor\u2019s remarks.\nFinally, we consider the effect on the jury of the jury instructions and the verdict forms. Though defendant concedes that the trial court\u2019s instructions to the jury are a correct statement of the law, he maintains that the instructions, coupled with the prosecutor\u2019s argument and the court\u2019s ruling thereon, confused the jury as to who bears the ultimate responsibility to impose the death sentence.\nWe disagree. In considering the impact of the prosecutor\u2019s remarks we, necessarily, have reviewed the record of defendant\u2019s sentencing hearing in its entirety. Significantly, at the eligibility phase of the hearing, the trial court instructed the jury as follows:\n\u201cTHE COURT: It is the law of this state that every person found guilty of murder shall be put to death or imprisoned. Only you can determine that the death penalty shall be imposed by the Court. If you do not do so, the Court will sentence the Defendant to a term of imprisonment.\nThis hearing will be in two separate phases in which it will be your duty to determine, first, whether the Defendant is or is not eligible to receive a sentence of death; and second, if the Defendant is eligible, whether or not the sentence of death will be imposed in this case.\nDuring the second phase of the hearing, both the State and the Defendant will have an opportunity to present facts either in favor of imposing or in favor of withholding the sentence of death. If you unanimously find that the sentence of death shall be imposed in this case, the Court will sentence the Defendant to death.\u201d\nImmediately following the State\u2019s rebuttal closing argument, the trial court instructed the jury on the death penalty pursuant to Illinois Pattern Jury Instructions, Criminal, Nos. 7A.15 and 7A.16 (2d ed. 1981). Additionally, each juror signed the verdict form which stated that the jury unanimously concluded that there was no mitigating factor sufficient to preclude the imposition of the death sentence and that the court shall sentence the defendant to death.\nHere, in seeking a determination that Caldwell has been violated, defendant asks this court to discount the effect of the trial court\u2019s several oral instructions to the jury and find that the prosecutor\u2019s statements of law had greater impact on the jury\u2019s death penalty determination. We decline to do so.\nA judge\u2019s statements have a particularly powerful effect on juries which is not so easily overcome. The very first and the very last instructions given by the trial judge to the jury during the sentencing phase of defendant\u2019s trial were correct statements of the jury\u2019s sentencing responsibility. Beyond the oral instructions, the jury was given, and signed, the verdict forms which properly set out the roles of the court and the jury. We believe that the court\u2019s instructions adequately apprised the jury of its task, and were sufficient to disabuse the jury of any misperception that that responsibility lay elsewhere.\nThe prosecutor\u2019s comments, which this court examined, in People v. Johnson (1991), 146 Ill. 2d 109, closely resemble the comments in this case. In Johnson, the prosecutor made the following comment:\n\u201c \u2018Look at the verdict forms, Ladies and Gentlemen, and you will see what they tell you. You are to determine if there are sufficient mitigating factors to preclude the imposition of the death penalty. It says the court, His Honor, Judge Bailey, shall sentence the defendant. You don\u2019t sentence the defendant. You don\u2019t sentence him. You look and see if there are sufficient mitigating factors.\u2019 \u201d (Johnson, 146 Ill. 2d at 146.)\nThis court concluded that the statements were \u201cimproper under Caldwell.\u201d However, the court stated that given the context in which the statements were made, the comments did not mislead the jury. The court noted that the prosecutor also admonished the jury of its burden in making a decision, the trial court instructed the jury that it \u201cshall\u201d sentence defendant to death, and the verdict form correctly informed the jury as to who bore the responsibility for imposing death. Johnson, 146 Ill. 2d at 147.\nHere, in his attempt to respond to defense counsel's impassioned argument, the prosecutor potentially misled the jury by stating that it did not sentence defendant. However, we find, as in Johnson, that the prosecutor also admonished the jury regarding its sentencing role, and that the instructions and verdict forms signed by the jurors properly informed the jury of the binding nature of its determination on the court.\nIn sum, we find that a portion of the prosecutor\u2019s argument to the jury included potentially misleading statements. That notwithstanding, the prosecutor admonished the jury to follow the law. Further, despite the absence of any clarifying instruction at the time the statements were made, we are unable to discount the impact of the several jury instructions given during the sentencing phase of defendant\u2019s trial and recited in the verdict forms. Thus, we find that the prosecutor\u2019s argument did not improperly diminish the jury\u2019s sense of responsibility to impose the death penalty.\nBecause we find defendant\u2019s claimed Caldwell violation to be without merit, we cannot conclude that defendant was prejudiced by prior appellate counsel\u2019s performance. On this issue, defendant has failed to satisfy the prejudice prong of Strickland.\nDisparate Sentencing\nDefendant next contends that his sentence is unfairly disparate to that of his codefendant, Gomez, in violation of the eighth amendment. Gomez was sentenced to 40 years\u2019 imprisonment. Parenthetically, we note that on direct appeal, defendant claimed that his death sentence was disproportionate and excessive. This court held that the penalty was commensurate with the gravity of the offense and the character of the defendant. See People v. Flores (1989), 128 Ill. 2d 66,100-01.\nThis court has a duty, pursuant to both the United States and the Illinois Constitutions, to determine whether a death sentence has been imposed arbitrarily or capriciously. (People v. Bean (1990), 137 Ill. 2d 65, 134.) To that end, this court has compared a defendant\u2019s death sentence to the sentence of a codefendant. (See Bean, 137 Ill. 2d at 134; People v. Jimerson (1989), 127 Ill. 2d 12, 53-54; People v. Gleckler (1980), 82 Ill. 2d 145, 161-71.) In prior decisions, the focus of our comparative analysis has been on the particular defendant\u2019s extent of involvement in the offense, the nature of the offense, the character and background of the defendant, including any criminal record, as well as his potential for rehabilitation. (See People v. Jackson (1991), 145 Ill. 2d 43; Bean, 137 Ill. 2d 65; Gleckler, 82 Ill. 2d 145.) A disparity in sentences will not be disturbed where it is warranted by differences in the nature and extent of the concerned defendant\u2019s participation in the offense. People v. Godinez (1982), 91 Ill. 2d 47, 55.\nThe premises of defendant\u2019s disparate sentencing claim are that (1) the codefendant (Gomez) was more culpable than defendant; and (2) G\u00f3mez was subject to more aggravating factors than defendant.\nIn support of his argument that Gomez was the more culpable participant in the commission of the charged offenses, defendant makes the following assertions: when defendant retrieved the shotgun from his car at the accident scene, Gomez instructed defendant to put the gun away; Gomez escorted the victim to defendant\u2019s car, in which the victim was driven to the murder scene; Gomez drove the lead car to the murder scene; and Gomez took the gold chains from the victim\u2019s body. Further, defendant asserts, the evidence \u201csuggests\u201d the possibility that Gomez may also have shot the victim, because there could have been a gun concealed in Gomez\u2019s car, the only eyewitness to the shooting did not see who actually shot the victim, and the State\u2019s ballistics expert left open the possibility that more than one shotgun was used in the murder.\nDefendant\u2019s assertions hardly support a conclusion that Gomez was the more culpable in the commission of this offense. Significantly, defendant makes no claim that Gomez directed, ordered, or otherwise instructed defendant to repeatedly shoot the victim. Further, defendant has not provided any evidence to support his assertion that Gomez might also have shot the victim. The jury heard the evidence and apparently believed that defendant actually shot the victim. We decline either to reweigh the evidence or to speculate concerning its infirmities. Cf. People v. Ashford (1988), 121 Ill. 2d 55 (no improper sentencing disparity where defendant had no significant criminal background, but was essentially the triggerman, firing all or nearly all of the fatal shots).\nDefendant\u2019s second premise is equally unavailing. Defendant argues that Gomez had more aggravating circumstances than defendant. Specifically, defendant points to the facts that Gomez was older than defendant, had prior convictions for unlawful use of a weapon, theft, and aggravated indecent liberties with a child, and had been sentenced to prison. Our review of Gomez\u2019s criminal record and presentence investigation, which defendant has included as part of the post-conviction record, indicates that in October 1984, Gomez was convicted of attempted murder and theft and was sentenced to concurrent prison terms of eight and three years. (The fact concerning the attempted murder conviction was omitted from defendant\u2019s brief; however, it was included in his post-conviction petition.)\nIn contrast, defendant\u2019s prior adjudications of delinquency were for nonviolent acts, for which he received probation. Unlike Gomez, defendant\u2019s prior offenses included conduct such as trespass to vehicles, retail theft, and possession of a stolen vehicle. Further, defendant argues that the mitigation evidence presented on his behalf demonstrated that the potential for his rehabilitation was far greater than for Gomez. Defendant notes that he was a high school \u201call-American\u201d diver, has behaved well while in custody, and has expressed a desire to counsel young inmates.\nWe do not discount the significance of defendant\u2019s mitigation evidence. However, we also find significant that at the aggravation phase of defendant\u2019s sentencing hearing, Louis Rosero testified that on August 5, 1984, only months after the Perez murder, defendant stopped him on the street and inquired whether Rosero would accept a set of tires in lieu of payment for a debt the defendant owed him. According to Rosero, defendant told him to meet him in an alley. When Rosero arrived, defendant shot him five times in the chest and twice in the back. As a result, Rosero was rendered a paraplegic and is permanently confined to a wheelchair.\nDefendant, attempting to minimize the significance of this testimony, argues that he was never convicted of the Rosero shooting. Defendant does not suggest that this evidence was inadmissible, for, certainly, prior uncharged criminal conduct is relevant in a sentencing determination. (See People v. Johnson (1986), 114 Ill. 2d 170, 205.) If believed, the jury may have considered that defendant\u2019s mitigation evidence was insufficient to overcome the aggravating factors.\nAt the time of this offense, defendant was 19 years of age and Gomez was 21. Although the defendant\u2019s prior juvenile conduct is of a less serious nature than Gomez\u2019s prior criminal conduct, we cannot say that defendant\u2019s conduct was mitigation sufficient to preclude imposition of the death penalty.\nBecause we conclude that defendant\u2019s death sentence is not improperly disparate, we find that defendant was not prejudiced by prior appellate counsel\u2019s performance. On this issue, defendant has failed to satisfy the prejudice prong of Strickland.\nCONCLUSION'\nPrior counsel\u2019s inclusion of the alleged errors which underlie defendant\u2019s ineffectiveness claim would not have resulted in vacatur of defendant\u2019s death sentence. Therefore, we are unable to conclude that defendant received ineffective assistance of appellate counsel.\nFor the forgoing reasons, we deny post-conviction relief and affirm the judgment of the circuit court. The clerk of this court is directed to enter an order setting Tuesday, March 16, 1993, as the date on which the sentence of death entered by the circuit court shall be implemented. The defendant shall be executed in the manner provided by law (Ill. Rev. Stat. 1989, ch. 38, par. 119 \u2014 5). A certified copy of the mandate of this court shall be transmitted by the clerk of this court to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein the defendant is confined.\nAffirmed.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Charles M. Schiedel, Deputy Defender, of Springfield, and Steven Clark, Assistant Appellate Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.", "Roland Burris, Attorney General, of Springfield, and Jack O'Malley, State's Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 70205\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARIO FLORES, Appellant.\nOpinion filed November 19, 1992.\nRehearing denied February 1,1993.\nCharles M. Schiedel, Deputy Defender, of Springfield, and Steven Clark, Assistant Appellate Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.\nRoland Burris, Attorney General, of Springfield, and Jack O'Malley, State's Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0264-01", "first_page_order": 274, "last_page_order": 307 }