{ "id": 8498562, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HARTFIELD, Defendant-Appellant", "name_abbreviation": "People v. Hartfield", "decision_date": "1992-06-30", "docket_number": "No. 1\u201491\u20141261", "first_page": "198", "last_page": "210", "citations": [ { "type": "official", "cite": "232 Ill. App. 3d 198" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "110 S. Ct. 663", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "493 U.S. 1109", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "107 S. Ct. 1266", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "94 L. Ed. 2d 127", "category": "reporters:federal", "reporter": "L. 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Ct.", "opinion_index": 0 }, { "cite": "146 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597251 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0413-01" ] }, { "cite": "445 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "opinion_index": 0 }, { "cite": "478 U.S. 255", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205967 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/us/478/0255-01" ] }, { "cite": "541 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647691 ], "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0420-01" ] }, { "cite": "555 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "551 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 623", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499097 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0623-01" ] }, { "cite": "548 N.E.2d 1025", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "132 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589223 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/132/0451-01" ] }, { "cite": "582 N.E.2d 1193", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1201" } ], "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796859 ], "year": 1989, "pin_cites": [ { "page": "992-93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0979-01" ] }, { "cite": "587 N.E.2d 1021", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 644", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "582 N.E.2d 1265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1268" } ], "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796095 ], "year": 1992, "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0868-01" ] }, { "cite": "533 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1091" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "pin_cites": [ { "page": "258-59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "110 S. Ct. 3294", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "111 L. Ed. 2d 802", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "497 U.S. 1032", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "544 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "129 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567042 ], "year": 1990, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0303-01" ] }, { "cite": "380 U.S. 202", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524661 ], "weight": 11, "pin_cites": [ { "page": "220-23" }, { "page": "772-74" } ], "opinion_index": 0, "case_paths": [ "/us/380/0202-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "484 N.E.2d 1136", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3640085 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0679-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 27738, "ocr_confidence": 0.736, "pagerank": { "raw": 1.3615551934070007e-07, "percentile": 0.6364262935792782 }, "sha256": "a77f8c3e1d0a867c82928431b1b830d405fc369111d7e28bfc6c728946d08de5", "simhash": "1:a6f81b96efa4acf6", "word_count": 4570 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTMAN, P.J., and McCORMICK, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HARTFIELD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nIn 1984, defendant John Hartfield was convicted of rape and aggravated battery; he was adjudged a habitual criminal and was sentenced to life imprisonment. After an unsuccessful appeal, defendant filed a post-conviction petition, alleging constitutional error due to the State\u2019s use of peremptory challenges to exclude blacks from the jury and his trial counsel\u2019s refusal to comply with his requests to object to this conduct. The circuit court dismissed the petition without an evi-dentiary hearing. For the reasons that follow, we affirm.\nDuring the court\u2019s voir dire of the potential jurors, one of the prosecutors asked to approach the bench for an unspecified reason. The court then remarked:\n\u201cIt\u2019s been brought to my attention I forgot two questions.\nThe first one is \u2014 as you can see, Mr. Hartfield is a black man. Some of you are white, but some of you are Oriental. Some of you are black.\nThe fact that Mr. Hartfield\u2019s race, would that, in anyway [sic], affect any of your ability to be fair and impartial? There\u2019s no \u2014 nobody who has given an affirmative response.\u201d\nJury selection took place in the judge\u2019s chambers. There is no record of the process, but the judge commented a short time later that the State exercised seven peremptory challenges.\nAfter defendant\u2019s conviction in February 1984, he appealed on grounds not relevant here. The appellate court affirmed the judgment in October 1985. (People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136.) Defendant then filed a petition for leave to appeal, which the Illinois Supreme Court denied on February 5, 1986. The record contains no indication that defendant filed a petition for rehearing or that he petitioned the United States Supreme Court for a writ of certiorari.\nOn April 30, 1986, less than three months after the Illinois Supreme Court issued its ruling on defendant\u2019s appeal, the United States Supreme Court rendered its decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. In Batson, the Supreme Court held that a defendant may challenge, on equal protection grounds, a single instance of the State\u2019s use of peremptory challenges to reject venire members of the same race. In doing so, the Court overruled Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, which had required a defendant to establish case-by-case discrimination in order to prevail on an equal protection claim.\nDefendant filed a pro se post-conviction petition in 1988. In this petition, he alleged that he was denied effective assistance of counsel in violation of the sixth amendment by his trial counsel\u2019s refusal to comply with his request that she object to the State\u2019s use of peremptory challenges to exclude blacks from the jury, and that he was denied a fair trial and equal protection by the State\u2019s use of its peremptory challenges to exclude black potential jurors. In defendant\u2019s affidavit submitted with his petition, he claims that he \u201cexperienced the prosecutor exercise peremptory challenges to exclude black persons from [his] petit jury,\u201d such that \u201cto [his] best recollection, the prosecutor so excluded nearly all the black [potential] jurors present and only one (1) black [potential] juror was allowed to participate in [his] jury trial as an alternate juror.\u201d Defendant also states as follows:\n\u201cI became outraged by the prosecutor\u2019s conduct of excluding nearly all the black jurors after my attorney informed me of the same. I then indicated to my attorney that it was apparent that the prosecutor wanted no black people to determine my fate. My attorney informed me that this type of conduct was a practice of the State\u2019s Attorney\u2019s Office of Cook County, Illinois. I stated to my attorney that this was obvious racism, and I asked her to object to the conduct. My attorney said that the law allowed the prosecutor to use his peremptory challenges any way he saw fit, and that there was nothing the defense could do about it.\u201d\nDefendant\u2019s petition asked the court to vacate the judgment and to grant him a new trial.\nOn defendant\u2019s motion, the court appointed a public defender to represent him. The State moved for dismissal of the petition. The motion itself is not in the record, but according to the transcript of the hearing, the State argued that the Batson ruling was inapplicable given the dates of defendant\u2019s conviction and unsuccessful appeals. No argument was had on the sixth amendment claim. At the outset of the hearing on the State\u2019s motion, the court denied defense counsel\u2019s motion for leave to withdraw on the ground of conflict of interest. Without an evidentiary hearing, the court granted the motion to dismiss; it did not articulate its reasons.\nI\nSection 122 \u2014 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.) states as follows:\n\u201cAny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1.)\nThe purpose of a post-conviction proceeding is to delve into constitutional phases of the original conviction which have not previously been determined. People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.\nThe standard of review for such proceedings is well settled:\n\u201cA Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment. [Citation.] In order to prevail under the Act, the defendant must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. [Citation.] The defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported where appropriate by the trial record or by accompanying affidavits, make a substantial showing that the defendant\u2019s rights have been so violated. [Citation.] For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are to be taken as true. [Citations.]\u201d (People v. Caballero (1989), 126 Ill. 2d 248, 258-59, 533 N.E.2d 1089, 1091.)\nThe decision to dismiss a petition without an evidentiary hearing is within the court\u2019s discretion (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 6), and it will be reversed only on an abuse of that discretion. People v. Mendez (1991), 221 Ill. App. 3d 868, 871, 582 N.E.2d 1265, 1268, appeal denied (1992), 143 Ill. 2d 644, 587 N.E.2d 1021.\nII\nThe State argues that the voir dire record\u2019s silence as to the race of the jurors and the venire precludes defendant from raising his equal protection claim. Illinois courts, however, have held that such gaps are not fatal in cases tried prior to Batson when deciding whether a defendant can make a prima facie showing of discrimination; instead, the voir dire record may be supplemented with information from other sources such as the trial judge, the attorneys, or the venire members themselves. (People v. Mitchell (1991), 221 Ill. App. 3d 979, 992-93, 582 N.E.2d 1193, 1201, citing People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, and People v. Lann (1990), 194 Ill. App. 3d 623, 551 N.E.2d 276, appeal denied (1990), 132 Ill. 2d 550, 555 N.E.2d 381.) Therefore, we find that this flaw is not dispositive.\nThe State also contends that defendant waived his claims by not raising them on direct appeal. Although conceding that courts relax the waiver rule for factual questions not apparent from the record during direct appeal, the State contends that defendant had ample opportunity to raise these claims earlier because the court asked the members of the venire whether the defendant\u2019s race would affect their impartiality. It also chastises him for not explaining the delay. In addition, maintains the State, it would be mere speculation to hold that not objecting to the State\u2019s conduct worked to defendant\u2019s disadvantage at trial. Therefore, the State concludes, defendant has not shown either \u201ccause\u201d or \u201cprejudice\u201d such as would take this case out of the embrace of the waiver rule.\nHere, as noted above, the jury selection process apparently was not transcribed, so the State\u2019s use of its peremptory challenges, and defendant\u2019s objections, if any, could not have been in the record on direct appeal. Similarly, defense counsel\u2019s alleged refusal to object occurred in an off-the-record conversation between defendant and his attorney. For this very reason, the issues before the circuit court on defendant\u2019s petition could not have been raised on direct appeal, which may review only those claims that are grounded in the trial record. In addition, the circuit court\u2019s query to the venire prior to selection asked only whether they thought that defendant\u2019s race would affect their impartiality; it did not address the State\u2019s and defense counsel\u2019s subsequent conduct. Therefore, we hold that the waiver doctrine is no bar to defendant\u2019s claims. People v. Lee (1989), 185 Ill. App. 3d 420, 427, 541 N.E.2d 747, 751.\nIll\nDefendant argues that the dismissal of his equal protection claim was premature without an evidentiary hearing on his ineffective assistance claim.\nDefendant\u2019s argument is premised on his belief that the reason the circuit court dismissed the equal protection claim was that defendant had waived it by not mentioning it on direct appeal. Because defendant did not include the State\u2019s motion to dismiss in the record, we do not know if the State urged the circuit court to adopt this view, nor do we know if the circuit court grounded its decision on this basis given that, as noted above, it gave no reasons for dismissing defendant\u2019s petition. Here again, however, even if we determined that defendant did not waive this question, defendant could not prevail on the merits.\nAccording to the transcript from the hearing on the State\u2019s motion to dismiss the petition, the State argued that the United States Supreme Court\u2019s decision in Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (per curiam), precluded defendant from raising an equal protection claim under Batson in a post-conviction proceeding. In Allen, the Court held that Batson applies retroactively in collateral proceedings such as this only if, on April 30, 1986, a defendant\u2019s case was either on direct appeal or the time to petition for a writ of certiorari had not passed; otherwise, relief under Batson is unavailable. Allen, 478 U.S. at 258 & n.1, 92 L. Ed. 2d at 204 & n.1, 106 S. Ct. at 2879-80 & n.1.\nHere, the Illinois Supreme Court denied defendant\u2019s petition for leave to appeal on February 4, 1986. At that time, the rules of the United States Supreme Court required that a criminal defendant file a petition for a writ of certiorari within 60 days of the order challenged, in this case, on or before April 6, 1986. (Sup. Ct. R. 20(.1) (1980), 445 U.S. 1006, 63 L. Ed. 2d xxxviii.) Accordingly, unless defendant filed a petition for rehearing in the Illinois Supreme Court or a petition for certiorari in the United States Supreme Court, facts about which the record is silent, his appeal was not \u201cpending\u201d for Allen\u2019s purposes when Batson was announced. Under these circumstances, defendant cannot bring a Batson claim. Therefore, the circuit court properly dismissed defendant\u2019s equal protection claim without a hearing, if the basis for the claim was Batson or the relief sought was a Batson hearing.\nThis ruling does not end our inquiry, however, because defendant did not predicate his equal protection claim on Batson and did not ask for a Batson hearing. Indeed, he makes no mention of Batson in his petition, as is proper under the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 2). Instead, he merely alleges that the State used its peremptory challenges to exclude blacks from his jury and that his attorney told him that this conduct was both lawful and a practice of the prosecutor\u2019s office. As the State suggests, defendant\u2019s claim is governed by the pre-Batson rule of Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. (People v. Andrews (1992), 146 Ill. 2d 413, 423.) In Swain, the Court held that a defendant who claimed racial discrimination in the State\u2019s use of peremptory challenges was required to overcome the presumption that a prosecutor\u2019s conduct in any particular case was governed by trial-related considerations rather than intent to discriminate. (Swain, 380 U.S. at 220-23, 13 L. Ed. 2d at 772-74, 85 S. Ct. 835-37.) To do so, one had to demonstrate that over time, the prosecutor systematically and purposefully excluded members of a defendant\u2019s racial group from serving as jurors for reasons unconnected to the result of the case at issue. In Swain, the defendant did not meet his burden of proof.\nHere, similarly, defendant has not met his burden of proof under Swain. Keeping in mind that we assume that all well-pleaded facts contained in the petition and supporting affidavit are true, we accept defendant\u2019s claim that the State exercised its peremptory challenges to exclude blacks from his jury. His trial counsel\u2019s comment that the State did this routinely, however, cannot be viewed in the same light for the simple reason that as defendant insists elsewhere, the attorney\u2019s statement is offered only to show her state of mind, not for its truth; otherwise, it would be hearsay and therefore inadmissible. Unfortunately for defendant, his attorney\u2019s comment is also the lone indication in his petition that the prosecutor used peremptory challenges over time to deny black venire members the opportunity to serve as jurors, the proof that Swain requires. Although an affidavit from defendant\u2019s trial counsel would have helped defendant to establish the requisite \u201csubstantial showing\u201d of systematic discrimination, which in turn would have warranted reversal under Swain, defendant elected not to submit one. Therefore, the circuit court\u2019s dismissal of the equal protection claim without a hearing was proper because defendant\u2019s petition and affidavit alone do not satisfy the statutory prerequisite of a \u201csubstantial showing\u201d that the prosecutor\u2019s conduct was unconstitutional under the then-prevailing rule of Swain.\nIV\nTo state a claim for ineffective assistance of counsel, a convicted defendant must satisfy both prongs of the test articulated in Strickland v. Washington (1984), 466 U.S. 668, 687-95, 80 L. Ed. 2d 674, 693-99, 104 S. Ct. 2052, 2064-69: (1) the defendant must show that \u201ccounsel\u2019s representation fell below an objective standard of reasonableness\u201d considering all the circumstances, including the law prevailing at the time at issue; and (2) \u201c[t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d\nA\nDefendant argues that under Strickland, his counsel's performance was objectively unreasonable because even prior to Batson, a prosecutor could not exercise peremptory challenges with impunity. As a result, he reasons, his trial counsel\u2019s statement that \u201cthe law allowed the prosecutor to use his peremptory challenges any way he saw fit\u201d was incorrect. The State counters that defendant\u2019s counsel was competent under Strickland in that, as noted above, to prevail on an equal protection claim under the rule prevailing at the time (Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824), defendant was obliged to demonstrate that the State had excluded black venire members from juries systematically and purposefully over a period of time, proof that the petition gives no indication defendant\u2019s trial counsel could have produced at trial.\nTrial counsel may be deemed ineffective for misunderstanding the applicable law. (People v. Hayes (1992), 229 Ill. App. 3d 55, 61.) Here, however, defendant\u2019s trial counsel\u2019s refusal to object to the State\u2019s conduct did not reflect a misunderstanding of the law at the time and thus her conduct did not fall below reasonable contemporaneous professional standards. In early 1984, such an objection could have succeeded only if a defendant had been able to demonstrate purposeful discrimination on a case-by-case basis, a daunting task. Indeed, in People v. Gaines (1984), 105 Ill. 2d 79, 473 N.E.2d 868, a post-conviction case decided after defendant\u2019s trial occurred, the Illinois Supreme Court rejected an equal protection claim similar to defendant\u2019s, holding that under Swain and then-controlling Illinois case law, the defendant had not raised a constitutional issue because the defendant did not make a substantial showing of systematic exclusion. (Gaines, 105 Ill. 2d at 88-89, 473 N.E.2d at 873.) In a case decided the same day as Gaines, People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880, the court rejected a due process claim brought for exclusion of black venire members. Citing an informal newspaper survey, the court commented that \u201cthere is just no evidence that blacks are systematically and purposefully excluded from serving on juries in Cook County where defendants are black.\u201d (Mack, 105 Ill. 2d at 122, 473 N.E.2d at 890-91.) A sixth amendment claim would have fared no better in 1984. People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.\nFrom these contemporaneous rulings, we learn that at the time of defendant\u2019s trial, an objection to the State\u2019s use of its peremptory challenges to discriminate against black venire members at a particular trial would have been futile. Accordingly, we cannot say that the refusal to make the objection contravened the professional standards of the day. In this respect, defendant\u2019s citation to Government of the Virgin Islands v. Forte (3d Cir. 1989), 865 F.2d 59 (Forte IT), which concerned a Federal trial conducted approximately two years after the trial at issue here, is not persuasive. In Forte II, the third circuit held that not complying with a similar request to make a similar objection was unreasonable in light of \u201cunique circumstances\u201d: the attorney\u2019s reason for not objecting (embarrassment), prior decisions in the Federal court in that jurisdiction, and the pendency of Batson at the time of the trial. The third circuit held that under these circumstances, the attorney should have foreseen the Batson ruling and made the objection for the record. By contrast, to rule that under the circumstances here defendant\u2019s trial counsel should have known which way the wind would blow two years after the trial, despite longstanding Illinois and Federal precedent to the contrary, would be tantamount to imposing a duty of clairvoyance. (People v. Teague (1992), 228 Ill. App. 3d 855, 859.) We decline to do so.\nB\nWith regard to the other Strickland prong, defendant asserts that but for his trial counsel\u2019s refusal to object to the State\u2019s conduct, the objection would have appeared in the record, thereby preserving the issue for direct appeal. Had this happened, he argues, the timing here was such that the appellate court or the Illinois Supreme Court likely would have waited for the Supreme Court to decide Batson before ruling on his case and then remanded for a Batson hearing. Thus, in defendant\u2019s view, there is a reasonable probability that, but for his trial counsel\u2019s error, the outcome of his direct appeal would have been different. The State counters that defendant has not provided support for a \u201creasonable probability\u201d that the trial outcome would have been different absent the alleged gaffe and that nothing in the record suggests that defendant did not receive a fair trial or that the jury was biased. Defendant replies that the State\u2019s alleged conduct is per se injury, citing Powers v. Ohio (1991), 499 U.S. 400, 411, 113 L. Ed. 2d 411, 425, 111 S. Ct. 1364, 1371 (\u201c[Rjacial discrimination in the selection of jurors \u2018casts doubt on the integrity of the judicial process\u2019 [citation], and places the fairness of a criminal proceeding in doubt\u201d). In addition, he emphasizes, the question here is not whether only the trial would have turned out differently but for his trial counsel\u2019s inaction, but rather whether the outcome of the direct appeal would have been different.\nEven if we held that defendant\u2019s trial counsel had contravened the prevailing professional standard, we could not grant defendant the relief he seeks. We agree that the State wrongly focuses on the outcome of the trial alone, but we do not share defendant\u2019s \u201cdead certain\u201d belief that the outcome of the direct appeal would have been different but for his attorney\u2019s refusal to object and her neglecting to state the race of the venire members, excused and sitting, on the record. It is true that doing so would have preserved the issue for the appellate and supreme courts on direct review, but as demonstrated above, defendant\u2019s direct appeal would not necessarily have been pending when Batson was announced, which is the only circumstance under which the outcome here might have been different.\nDespite defendant\u2019s protestations, it is not reasonably probable that the Illinois Appellate Court would have held this case in abeyance for six months in addition to the 18 months that already had passed between sentencing and issuance of the appellate decision, nor can we say with confidence that the Illinois Supreme Court likely would have delayed for three months its denial of defendant\u2019s petition for leave to appeal. Defendant has offered no cases whose procedural history would support this claim, so we would have to resort to speculation to rule in his favor. Unlike the court in Forte II, we cannot say that the proceedings here definitely would have turned out differently if defendant\u2019s counsel had made the objection because in Forte II, the case was pending on direct appeal when Batson was announced. Here, it is possible that had the issue been preserved, defendant\u2019s appellate counsel would have filed a petition for a writ of certiorari and thus this case would have been on direct appeal when Batson was announced. Nevertheless, were we to rule that under the circumstances here this possibility could be deemed a \u201creasonable probability,\u201d we would be engaging in conjecture.\nBased on the above analysis, we hold that defendant did not make the statutorily required showing in his petition and affidavit that his counsel\u2019s refusal to comply with his request to object to the State\u2019s improper use of peremptory challenges was either an act that fell below an objective standard of reasonableness, given the State of Illinois and Federal law at the time of defendant's trial, nor has he satisfied his burden with regard to demonstrating a reasonable probability that but for the refusal, the outcome of his direct appeal would have been different. Accordingly, we hold that the circuit court did not abuse its discretion in dismissing the petition without an evidentiary hearing on this issue.\nV\nDefendant asks this court to overrule People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617, and to reverse and remand for appointment of counsel with no connection to the public defender\u2019s office. In the alternative, he asks for reversal and remand for a hearing as to the existence of an actual conflict of interest. The State counters that this court has no authority to overrule a decision of the Illinois Supreme Court. Because defendant made no claim of actual conflict, insists the State, nor does the record reveal any, Banks precludes defendant from raising the question.\nIn Banks, the court held that assigning a public defender to represent a convicted person in an ineffective assistance of counsel claim against another attorney from the same office does not present a per se conflict of interest. The court held that, instead, the circuit court must examine each case for circumstances that would result in an actual conflict.\nDefendant has presented no argument or citation in support of his position. Absent argument and support, this court need not consider an issue. (Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325, 581 N.E.2d 877, 882, citing Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7).) Nevertheless, we note that at the hearing, the public defender said only that it was her office\u2019s policy to ask for leave to withdraw for conflict reasons; she gave no particular reason for her motion nor does the record reveal any. Thus the circuit court properly denied the motion to withdraw.\nFor the reasons given above, we affirm the judgment of the circuit court.\nAffirmed.\nHARTMAN, P.J., and McCORMICK, J., concur.\nAt the hearing, defendant\u2019s counsel stated that defendant filed an amendment to his petition, but only one version appears in the record. In addition, even though defendant\u2019s counsel stated \u201cwe stand on the pro se petition,\u201d the record contains an affidavit she submitted, with this case number but titled \u201cRichard Harris v. People of the State of Illinois,\u201d stating that she had prepared a supplemental petition in accordance with Rule 651(c) (134 Ill. 2d R. 651(c)). No supplemental petition appears in the record. Defendant\u2019s counsel also stated that defendant \u201callege[d] ineffective assistance of appellate counsel in failing to raise the issue of the ineffective assistance of trial counsel.\u201d This allegation, however, does not appear in the version of his pro se petition in the record before us. Because there is no other mention in the record, or argument in defendant\u2019s briefs here, on the effectiveness of his appellate counsel, we do not address the matter here.\nWe recognize, of course, that defense objections to the State\u2019s use of peremptory challenges were not novel at the time of defendant\u2019s trial. (See, e.g., People v. Hope (1992), 147 Ill. 2d 315, 321 (objection made at 1982 trial).) We hold only that her view of the law at the time was not unreasonable.\nThis was the alternative holding. In Gaines, defense counsel raised the objection, but he did so after the court had sworn in the jury. The defendant addressed the question on his direct appeal and lost. In the post-conviction proceeding, he was not allowed to raise it a second time because the court said the earlier decision on the merits was res judicata.\nMack was vacated and remanded by the United States Supreme Court following Batson (Mack v. Illinois (1987), 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266), but that fact does not affect our analysis of the law in Illinois in 1984 because Mack, unlike this case, was on direct appeal when Batson was announced.\nIronically, when the Illinois Supreme Court denied defendant\u2019s petition for leave to appeal, the time period for filing for certiorari in criminal cases was only 60 days, with the possibility of a 30-day extension; had it been 90 days, as it is now, his appeal would have been pending, under Allen\u2019s definition, when Batson was announced, even if he had not filed the petition. Compare Sup. Ct. R. 20(.1) (1980), 445 U.S. 1006, 63 L. Ed. 2d xxxviii, with Sup. Ct. R. 13(.1) (1990), 493 U.S. 1109, 107 L. Ed. 2d xciv, 110 S. Ct. 663.", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Jeffery Wawrzyniak, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HARTFIELD, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201491\u20141261\nOpinion filed June 30, 1992.\nRandolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Jeffery Wawrzyniak, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0198-01", "first_page_order": 218, "last_page_order": 230 }