{ "id": 4302917, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLON JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "2010-05-21", "docket_number": "No. 2\u201408\u20140839", "first_page": "685", "last_page": "697", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 685" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "383 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278311 ], "year": 2008, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/383/0374-01" ] }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "year": 1993, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "223 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604764 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0458-01" ] }, { "cite": "215 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060088 ], "year": 2005, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0427-01" ] }, { "cite": "234 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623765 ], "weight": 7, "year": 2009, "pin_cites": [ { "page": "10" }, { "page": "10" }, { "page": "16-17" }, { "page": "17" }, { "page": "17" }, { "page": "17" }, { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0001-01" ] }, { "cite": "224 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607201 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "124" }, { "page": "124" }, { "page": "124-25" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0115-01" ] }, { "cite": "212 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444097 ], "weight": 18, "year": 2004, "pin_cites": [ { "page": "203" }, { "page": "203-04" }, { "page": "194-95" }, { "page": "200" }, { "page": "200" }, { "page": "200-01" }, { "page": "204" }, { "page": "205" }, { "page": "205" }, { "page": "205" }, { "page": "209" }, { "page": "211-12" }, { "page": "212" }, { "page": "212" }, { "page": "205" }, { "page": "212" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0192-01" ] } ], "analysis": { "cardinality": 1010, "char_count": 31457, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14483894620883303 }, "sha256": "10b03d2f1a0f5c8147ab008ae0fd4d427e1ba0db6b383d23beb8c0c35665fbb9", "simhash": "1:bbabf533134c1cf1", "word_count": 5025 }, "last_updated": "2023-07-14T16:03:46.574655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLON JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Marlon Johnson, was convicted of aggravated kidnaping (720 ILCS 5/10 \u2014 2(a)(5) (West 2002)) and aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14(a)(1) (West 2002)). The trial court imposed consecutive sentences of 8V2 years\u2019 imprisonment on the aggravated kidnaping conviction and 10 years\u2019 imprisonment on the aggravated criminal sexual assault conviction. Defendant subsequently filed a pro se postconviction petition alleging violations of his constitutional rights from, among other things, the alleged nondisclosure of fingerprint comparisons to his ultimate trial counsel and an officer\u2019s relying on an unidentified translator to take the victim\u2019s initial statement. Because defendant\u2019s direct appeal was still pending when defendant filed his postconviction petition, the trial court advanced the petition to the second stage. Appointed counsel sought leave to withdraw on the basis that defendant\u2019s claims lacked merit, and the trial court granted the motion to withdraw. Defendant proceeded pro se, and the trial court granted the State\u2019s motion to dismiss his petition. On appeal, defendant argues that the trial court erred in: (1) granting postconviction counsel\u2019s motion to withdraw, and (2) dismissing his postconviction petition. We agree with defendant\u2019s first contention and therefore vacate in part, reverse in part, and remand.\nI. BACKGROUND\nWe summarize only the trial testimony necessary for an understanding of this appeal. The victim, M.G., testified through an interpreter that on December 17, 2003, she had just parked her car near her apartment building and was still seated within when defendant approached and asked for a ride. When she declined, defendant threatened her with a knife and got into the passenger side of the car. He forced M.G. to drive to various locations and perform oral sex on him. He ultimately had her drive to a nearby apartment complex before he exited the car. The State introduced evidence that a stain from M.G.\u2019s clothing contained a sperm cell and evidence that a DNA sample from the clothing matched defendant\u2019s DNA.\nDefendant testified that he had sold M.G. drugs on several occasions. Around the day in question, M.G. asked defendant if he would \u201cfront\u201d her drugs until she got paid. Defendant instead offered to give her the drugs in exchange for oral sex, and M.G. agreed. She performed oral sex on him in the laundry room of the apartment building where defendant was living -with his girlfriend. Defendant then said that he would bring M.G. the drugs. However, he did not return, because he did not want his girlfriend to confront him about where he had been and why he was giving M.G. free drugs.\nThe jury found defendant guilty, and on November 14, 2007, this court affirmed his convictions on appeal. See People v. Johnson, No. 2\u201405\u20141269 (2007) (unpublished order under Supreme Court Rule 23).\nDefendant filed a 40-plus-page postconviction petition on March 19, 2007, while his direct appeal was pending. On April 13, 2007, the trial court entered an order noting that any issues raised in a postcon-viction petition that were previously decided are barred by res judicata and that any issues in the petition that could have been raised on appeal but were not are procedurally defaulted. The trial court stated that, because it was unaware of the substance of defendant\u2019s pending direct appeal, it was advancing the petition to the second stage of proceedings.\nOn June 1, 2007, defendant filed a pro se motion seeking counsel from outside the public defender\u2019s office. Defendant alleged that he had received a letter from assistant public defender Donald Lorek stating that he had been appointed to represent defendant on his post-conviction petition, but Lorek did not subsequently respond to defendant\u2019s correspondence. Defendant further alleged that there was a conflict of interest in having an attorney from the public defender\u2019s office represent him, because of his prior conflicts with that office.\nOn September 12, 2007, Lorek informed the trial court that he had been unable to examine the transcripts because the case was still on appeal. The trial court discussed defendant\u2019s concerns regarding lack of communication and progress with the petition, and it concluded that there was no basis to appoint new counsel. The trial court continued the matter until November 7, 2007, for Lorek to file either a Rule 651(c) (134 Ill. 2d R. 651(c)) certificate or a motion to continue.\nAt the November 7 hearing, Lorek informed the trial court that he had reviewed the transcripts and common-law record at the appellate court and had also reviewed the postconviction petition. On Lorek\u2019s motion, the trial court continued the matter to December 20.\nOn November 29, Lorek filed a motion for leave to withdraw. Lorek referenced defendant\u2019s previous motions to replace trial and postconviction counsel, as well as an allegation in his postconviction petition that the public defender\u2019s office had conspired with the State\u2019s Attorney\u2019s office to deprive him of the results of fingerprint comparisons. Lorek stated that he had met with defendant and discussed each issue raised in the postconviction petition. He stated that he believed that the petition lacked merit and that he was obligated to move to withdraw under People v. Greer, 212 Ill. 2d 192 (2004). Lorek further stated that his examination of the reports of proceedings, the common-law record, defendant\u2019s correspondence, and interviews of trial counsel had \u201cnot revealed any other basis for the assertion of a claim of a deprivation of a constitutionally-protected right which resulted in the sentence or conviction imposed herein.\u201d\nLorek also filed a Rule 651(c) certificate, in which he stated the following. He had: reviewed the court file; examined the pro se petition for postconviction relief and the attached exhibits; read the reports of proceedings; discussed with defendant his claims of deprivation of constitutionally protected rights; and reviewed the appellate defender\u2019s brief and the appellate court\u2019s decision. Lorek stated that he had expressed to defendant his opinions about the issues raised in the petition but could not offer any amendments to the petition. Lorek further stated that he had spoken to defendant\u2019s trial counsel several times about the case but that the \u201cconversations have not shed any new light on [defendant\u2019s] claims of deprivation of constitutionally-protected rights at the trial of this matter.\u201d\nOn December 20, the trial court took Lorek\u2019s motion to withdraw under advisement and continued the case. On January 2, 2008, the trial court granted the motion to withdraw. Lorek stated that even though he could not support defendant\u2019s allegations, he could not \u201cgive specific answers to specific questions\u201d because it was not \u201c[his] role to provide the State with an argument.\u201d However, he offered to remain as standby counsel for defendant. The trial court stated that the problems created by appointing him standby counsel outweighed the benefits. It further stated that under Greer, notwithstanding Lorek\u2019s withdrawal, the hearings on defendant\u2019s postconviction petition would continue. The trial court gave the State 45 days to either answer the petition or move to dismiss.\nThe State was given leave to file a motion to dismiss on April 3, 2008. On August 14, defendant moved to amend his petition by adding argument in the event the trial court denied the State\u2019s motion to dismiss. For purposes of appeal, defendant also raised an objection to Lorek\u2019s withdrawal. Defendant stated that he had not been allowed an opportunity to respond to the motion to withdraw. Defendant alleged that Lorek had misled the trial court \u201cas to material facts\u201d and the \u201cviability and truthfulness of the issues raised in\u201d the petition. Defendant argued that under Greer, counsel had to specifically show why he could not advance defendant\u2019s arguments, which Lorek had failed to do. Defendant further alleged that Lorek had obtained two lab reports from the Illinois State Police dated July 28, 2004, and April 14, 2005, which directly corroborated his allegations of a conspiracy between the public defender\u2019s and State\u2019s Attorney\u2019s offices to suppress evidence in his case. Defendant stated that Lorek met with him on November 13, 2007, when Lorek had just the former report. Although defendant told him that it corroborated his claims, Lorek replied that the report did not prove anything, defendant\u2019s allegations were meritless, and he would withdraw as counsel. Defendant alleged that Lorek maintained this position even after receiving the second corroborating report, which he forwarded to defendant.\nThe hearing on the motion to dismiss occurred on September 4, 2008, with defendant appearing pro se. The State addressed the arguments raised in defendant\u2019s postconviction petition, including the amendments. On the issue of the fingerprint evidence, the State argued that it had tendered discovery regarding the prints, specifically \u201ca two-page document\u201d that was \u201can Illinois State Police report offered by Miss Barbara Wilkins wherein it contains the finding that there are no fingerprints.\u201d The State argued that it was \u201ca DNA case,\u201d so it was defense counsel\u2019s trial strategy \u201cfor not exploring that issue with respect to prints,\u201d though he did argue the issue in closing argument. The State argued that the subject of fingerprints was ultimately inconsequential because the issue was consent, and defendant had failed to show that he was prejudiced.\nOn the fingerprint issue, defendant argued that he attached an \u201caffidavit\u201d from himself stating that trial counsel Ronald Dolak informed him that he was never given any fingerprint comparisons of any kind. Defendant argued that his statement was corroborated by a transcript of a hearing on his pro se posttrial motion alleging ineffective assistance of trial counsel, at which Assistant State\u2019s Attorney Pamela Monaco stated that, when she contacted the lab about the analysis of fingerprints obtained from the victim\u2019s car, \u201cthey said once there\u2019s DNA, they don\u2019t really do fingerprints. It kind of stops. There is nothing conclusive about any of the fingerprints, and it was not really an issue.\u201d At the same hearing, Dolak stated that \u201c[a]s far as the fingerprints go, as far as the discovery I had, there was no comparison.\u201d Defendant argued that the fingerprint evidence was significant to his defense, which was that the oral sex was consensual and that he was never in M.G.\u2019s car, which would also negate the aggravated kidnaping charge. Defendant argued that under M.G.\u2019s version of events, his fingerprints should have been all over her car. Defendant also pointed out that during jury deliberations, the jury specifically asked if it could take into account that the car was impounded and fingerprints were not found.\nThe trial court granted the State\u2019s motion to dismiss, finding that defendant was not entitled to a third-stage evidentiary hearing. Defendant timely appealed.\nII. ANALYSIS\nOn appeal, defendant challenges the trial court\u2019s grant of Lorek\u2019s motion to withdraw and its grant of the State\u2019s motion to dismiss his postconviction petition.\nThe Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2008)) provides a procedural mechanism for criminal defendants to assert that their constitutional rights were substantially violated during the original proceedings resulting in their convictions. People v. Harris, 224 Ill. 2d 115, 124 (2007). A proceeding under the Act is a collateral attack on the judgment, allowing inquiry into issues that were not, and could not have been, adjudicated on direct appeal. Harris, 224 Ill. 2d at 124. Issues that the defendant could have raised on direct appeal but did not are procedurally defaulted, and issues that a reviewing court previously decided are barred by res judicata. Harris, 224 Ill. 2d at 124-25.\nThe Act creates a three-stage process for the adjudication of post-conviction petitions in noncapital cases. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At the first stage, the trial court must independently determine, within 90 days of the petition\u2019s filing, whether it is \u201cfrivolous or is patently without merit.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2008); Hodges, 234 Ill. 2d at 10. At this stage, a defendant is not automatically entitled to the assistance of counsel. Greer, 212 Ill. 2d at 203. Therefore, the petition\u2019s allegations, liberally construed and taken as true, need present only the gist of a constitutional claim. Harris, 224 Ill. 2d at 126. If the trial court determines that the petition is frivolous or patently without merit, the trial court must dismiss it. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2008). Conversely, if the trial court finds that the petition is not frivolous or patently without merit, or if the court does not take action on the petition within 90 days of its filing, the proceedings move on to the second stage. 725 ILCS 5/122\u2014 2.1(b), 122 \u2014 4 (West 2008). During the second stage, an indigent defendant is entitled to the appointment of counsel (Greer, 212 Ill. 2d at 203-04), and counsel may file an amended petition (People v. Blair, 215 Ill. 2d 427, 458 (2005)). The State, in turn, may file a motion to dismiss the petition. 725 ILCS 5/122 \u2014 5 (West 2008). If the trial court does not dismiss the petition, it will conduct an evidentiary hearing on the merits of the petition during the third stage. 725 ILCS 5/122 \u2014 6 (West 2008).\nIn Greer, our supreme court addressed the issue of whether post-conviction counsel may seek leave to withdraw. In that case, the defendant\u2019s petition advanced to the second stage, not because the trial court had considered the petition\u2019s substance and determined that it was not frivolous or patently without merit, but rather because the trial court had not acted upon it within the required 90-day period for a summary dismissal. Greer, 212 Ill. 2d at 194-95. The defendant\u2019s appointed counsel then filed a motion to withdraw, stating that he had reviewed the record, the transcripts of proceedings, and the State\u2019s Attorney\u2019s files; had interviewed the relevant parties and the defendant; and could find no meritorious issue for review. A supporting brief detailed counsel\u2019s course of action after appointment, stated that he could not \u201c \u2018properly substantiate\u2019 \u201d the defendant\u2019s claims, and concluded that the allegations were without merit. Greer, 212 Ill. 2d at 200. Counsel also indicated that he had considered other possible issues but did not find one of merit. Greer, 212 Ill. 2d at 200. The trial court granted the attorney\u2019s motion to withdraw, and the appellate court affirmed. Greer, 212 Ill. 2d at 200-01.\nOur supreme court noted that under the Act, a defendant is entitled to only a \u201creasonable\u201d level of assistance, which is lower than the constitutionally guaranteed level of assistance afforded to defendants at the trial phase. Greer, 212 Ill. 2d at 204. Postconviction counsel\u2019s duties are set forth in Rule 651(c), which requires that post-conviction counsel make a showing in the record that he or she has: (1) consulted with the petitioner to ascertain his allegations of deprivation of constitutional rights; (2) examined the record of proceedings at trial; and (3) made any amendments to pro se petitions that are necessary to adequately present the petitioner\u2019s allegations. Greer, 212 Ill. 2d at 205.\nThe Greer court reasoned that fulfilling the third obligation under Rule 651(c) does not require postconviction counsel \u201cto advance frivolous or spurious claims,\u201d because the amendments would not qualify as \u201cnecessary\u201d within the rule\u2019s meaning. Greer, 212 Ill. 2d at 205. The court further reasoned that filing such an amended petition would appear to violate Rule 137 (155 Ill. 2d R. 137), which states that an attorney\u2019s signature certifies that after a reasonable inquiry, he or she believes that the pleading or motion is grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. Greer, 212 Ill. 2d at 205. The court ruled that nothing in the Act prevented appointed counsel from withdrawing if he or she determined that the defendant\u2019s petition was frivolous or patently without merit, such that the attorney\u2019s ethical obligations would actually prohibit him or her from continuing representation. Greer, 212 Ill. 2d at 209.\nThe Greer court went on to conclude that the record affirmatively demonstrated that the defendant\u2019s postconviction allegations were frivolous and patently without merit and that the attorney could withdraw as counsel. The court stated:\n\u201cAlthough we hasten to emphasize that the inability of postconviction counsel to \u2018properly substantiate\u2019 a defendant\u2019s claims is not the standard by which counsel should judge the viability of a defendant\u2019s postconviction claims, and that an attorney moving to withdraw should make some effort to explain why defendant\u2019s claims are frivolous or patently without merit, it nonetheless appears that counsel fulfilled his duties as prescribed by Rule 651(c), and the record before us supports counsel\u2019s assessment that the defendant\u2019s postconviction claims were frivolous and without merit. Consequently, though the procedure in the circuit court leaves something to be desired, defense counsel should be allowed to withdraw, and we affirm the judgment of the appellate court in that respect.\u201d (Emphases in original.) Greer, 212 Ill. 2d at 211-12.\nSubsequently, in People v. Pendleton, 223 Ill. 2d 458 (2006), our supreme court reiterated that postconviction counsel \u201c \u2018is only required to investigate and properly present the petitioner\u2019s claims\u2019 \u201d but is not required to advance frivolous or spurious claims. (Emphasis omitted.) Pendleton, 223 Ill. 2d at 472, quoting People v. Davis, 156 Ill. 2d 149, 164 (1993).\nDefendant argues that under Greer and Pendleton, Lorek should have given some reasons to explain his conclusion that the petition\u2019s claims lacked merit. The State responds that Lorek, through his motion for leave to withdraw, Rule 651(c) certificate, and statements to the court, clearly satisfied the requirements of Greer. The State further argues that Lorek was not required to explain why defendant\u2019s claims were meritless, especially in light of Lorek\u2019s statement to the court that even though he could not support defendant\u2019s allegations, it was not his role to provide the State with argument.\nWe agree with the State insofar as Lorek\u2019s compliance with the steps to support a motion to withdraw. Although the Greer court stated that an attorney seeking to withdraw should make \u201csome effort\u201d to explain his or her position that the defendant\u2019s claims are frivolous or patently without merit, it also stated that postconviction counsel\u2019s duties are prescribed by Rule 651(c) and that the defendant\u2019s counsel had satisfied those duties. Greer, 212 Ill. 2d at 212. Similarly, in this case Lorek satisfied his Rule 651(c) obligations by stating that he had discussed defendant\u2019s postconviction claims with him; had reviewed the record, including the reports of proceedings, the appellate defender\u2019s brief, and this court\u2019s Rule 23 order; and that he could not offer any amendments. Lorek further informed the trial court that he had spoken to defendant\u2019s trial counsel several times. As in Greer, Lorek\u2019s decision not to elaborate on why he believed the claims to be meritless \u201cleaves something to be desired\u201d (Greer, 212 Ill. 2d at 212) and makes review of the issue more difficult, but Lorek still took the procedural steps necessary for a motion to withdraw.\nDefendant further argues that the trial court should not have allowed Lorek to withdraw, because Lorek was wrong in his assessment that none of the petition\u2019s issues had potential merit. Defendant highlights his claims regarding the police\u2019s use of an unidentified interpreter when taking M.G.\u2019s initial statement and trial counsel\u2019s failure to introduce the fingerprint comparisons. The State argues that defendant was on notice that M.G.\u2019s brother-in-law acted as an interpreter during the initial interview and that any potential error would be harmless because M.G. testified at trial and was subject to cross-examination. On the fingerprint issue, the State argues that \u201ca perfectly logical reason was given for why the lab did not compare them. The assistant explained that once the lab had DNA, it no longer needed to do fingerprint analysis. The assistant went on to state that there was not anything conclusive about the fingerprints, and they were really not an issue.\u201d The State argues that the assistant State\u2019s Attorney was correct because defendant never denied having been in the car or having sex with M.G. The State further argues that both issues have been forfeited because they could have been raised on direct appeal but defendant does not explain, either in his petition or in an affidavit, why they were not.\nWe agree with defendant that the fingerprint issue has potential merit, and Lorek therefore should not have been allowed to withdraw as counsel. Under Greer, postconviction counsel is not required to advance \u201cfrivolous or spurious claims\u201d (Greer, 212 Ill. 2d at 205), which our supreme court described as \u201cfrivolous or patently without merit\u201d (Greer, 212 Ill. 2d at 212). This is identical to the standard used at the first stage of postconviction proceedings to determine whether the petition should be summarily dismissed. See 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2008). We recognize that here, as in Greer, the petition advanced to the second stage of proceedings, not because the trial court determined that it was not frivolous or patently without merit, but rather because the trial court could not (or as in Greer, did not) make the first-stage assessment within the 90-day deadline. Still, in determining whether to allow counsel to withdraw, the court must determine whether the record supports counsel\u2019s assertion that the petition is frivolous or patently without merit. See Greer, 212 Ill. 2d at 212.\nA petition is frivolous or patently without merit only if it has no arguable basis in law or fact, meaning'that the claims are based on an indisputably meritless legal theory or a fanciful factual allegation. Hodges, 234 Ill. 2d at 16-17. During the second stage of postconviction proceedings, the petition\u2019s allegations are to be liberally construed in light of the trial record, and factual allegations that the record does not positively rebut must be accepted as true. People v. Alberts, 383 Ill. App. 3d 374, 376 (2008). Defendant\u2019s allegations regarding trial counsel Dolak\u2019s failure to use the fingerprint comparisons give rise to, among other things, a contention of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Hodges, 234 Ill. 2d at 17. The defendant must show that (1) trial counsel\u2019s performance fell below an objective standard of reasonableness, and (2) the deficient performance resulted in prejudice. Hodges, 234 Ill. 2d at 17. An allegation of ineffective assistance of counsel is not frivolous or patently without merit if (1) counsel\u2019s performance arguably fell below an objective standard of reasonableness, and (2) defendant was arguably prejudiced as a result. Hodges, 234 Ill. 2d at 17.\nDefendant\u2019s postconviction petition referenced the two lab reports, dated July 28, 2004, and April 14, 2005, regarding fingerprint comparisons, and he attached pages from the record mentioning these reports. The record refers to the former report as indicating that five latent fingerprints, taken from inside M.G.\u2019s vehicle, did not match M.G.\u2019s prints. It refers to the latter report as comparing the five fingerprints to those of defendant. Defendant alleged that the State disclosed the reports to his initial trial counsel, Willett, but that the reports did not subsequently get turned over to Dolak. Defendant\u2019s allegation that Dolak did not receive the reports is supported by copies of reports of proceedings attached to the petition, namely, one from the hearing on defendant\u2019s pro se posttrial motion, at which Dolak stated:\n\u201cAs far as the fingerprints go, as far as the discovery I had, there was no comparison, and we argued that fact that the State omitted it, that there wasn\u2019t any evidence against [defendant], I believe we argued that in our closing arguments, and I think that\u2019s how we addressed it.\u201d\nAt the same hearing, the assistant State\u2019s Attorney said, \u201cthey [the lab] said once there\u2019s DNA, they don\u2019t really do fingerprints. It kind of stops. There is nothing conclusive about any of the fingerprints, and it was not really an issue.\u201d\nDefendant alleged that the fingerprint results were material to proving his innocence and described his unsuccessful attempts to obtain copies of the reports up to the time he filed the postconviction petition. In his objection to Lorek\u2019s withdrawal, defendant alleged that Lorek obtained the reports and provided him with copies. From the State\u2019s comments at the hearing on defendant\u2019s pro se posttrial motion, it appeared to take the position that either the fingerprints were not even tested or there were no conclusive results from the tests. The State reiterates this position in its brief. However, the State acknowledged the existence of the reports at the hearing on its motion to dismiss defendant\u2019s postconviction petition, stating that it had tendered \u201can Illinois State Police report offered by Miss Barbara Wilkins wherein it contains the finding that there are no fingerprints.\u201d (Emphasis added.)\nCopies of the reports included in the record on appeal show that the State has repeatedly mischaracterized their content in its references to them. The July 28, 2004, report states that the lab received five latent print lifts and fingerprint and palm-print cards from M.G. and two other individuals. It concludes:\n\u201cAn AFIS evaluation of Exhibit 5 revealed latent prints suitable for AFIS processing. Comparison of the AFIS suitable latent prints to the inked fingerprint cards marked [M.G. and the two other individuals] did not reveal any identifications.\nAn AFIS search did not reveal an identification.\u201d\nThe April 14, 2005, report states that the five latent prints were resubmitted, and the lab also received defendant\u2019s fingerprint and palm-print \u201cstandards.\u201d It concludes:\n\u201cExamination of Exhibit 5 revealed latent prints suitable for comparison.\nComparison of the suitable latent prints to the inked standards of [defendant] did not reveal any identifications.\u201d\nThus, the reports indicate that there were five latent fingerprints suitable for testing and that they did not match M.G.\u2019s or defendant\u2019s prints.\nTrial counsel Dolak\u2019s apparent failure to obtain the reports arguably fell below an objective standard of reasonableness because he appeared to be unaware of their existence despite references to them in documents in the common-law record prior to his appointment, as well as in prior hearings. (To the extent that the reports should have been turned over to him but were not, defendant could arguably have a separate due process violation claim.) Further, if Dolak did not have the reports, his failure to introduce them at trial could not have been the result of trial strategy. Defendant was arguably prejudiced because the results showing that his fingerprints did not match those found in the car could lend some support to the defense theory that defendant was not in M.G.\u2019s car and that the encounter took place in the laundry room. The fingerprint evidence was not cumulative of the DNA evidence, because defendant never denied that the sexual encounter took place but, rather, claimed that it was consensual. Even if the jury did not believe that the oral sex was consensual, if it believed that the act occurred in the laundry room, it may still have found defendant not guilty of aggravated kidnaping. The potential significance of the lack of matching fingerprints is highlighted by the jury\u2019s question of whether it could consider that issue, which was not brought up in evidence but rather only in defendant\u2019s closing argument.\nWe further disagree with the State that defendant forfeited the fingerprint issue by failing to raise it in his direct appeal. As indicated in his postconviction petition, defendant did raise the issue in his pro se posttrial motion but, at a hearing on that motion, both the State and Dolak took the position that the fingerprints were not tested or yielded no conclusive results. This misrepresentation would explain why defendant did not raise the issue on appeal. Further, it is apparent that defendant did not have copies of the reports until after he filed his postconviction petition.\nBecause defendant\u2019s allegations arguably satisfy the Strickland test for ineffective assistance of counsel, they are not frivolous or patently without merit, and the trial court erred in granting Lorek\u2019s motion to withdraw. We therefore reverse this ruling. Defendant did have his claims heard at a second-stage hearing, but he did so without the benefit of counsel to amend his petition and argue on his behalf. We therefore vacate the trial court\u2019s grant of the State\u2019s motion to dismiss defendant\u2019s petition and remand the case for second-stage proceedings to begin anew. Based on Lorek\u2019s request to withdraw, defendant asks that we order that he be appointed counsel from outside the public defender\u2019s office. However, on the record before us, we do not find such a measure warranted. We express no opinion on whether any of defendant\u2019s claims are sufficient to withstand a motion to dismiss. See Hodges, 234 Ill. 2d at 22-23.\nIII. CONCLUSION\nFor the foregoing reasons, we vacate the trial court\u2019s grant of the State\u2019s motion to dismiss defendant\u2019s postconviction petition and reverse its grant of postconviction counsel\u2019s motion to withdraw. We remand the cause for further proceedings consistent with this opinion.\nVacated in part and reversed in part; cause remanded.\nZENOFF, EJ., and SCHOSTOK, J., concur.\nIn the trial proceedings, defendant was initially represented by assistant public defender Brenda Willett. Defendant filed but then withdrew a motion for new counsel. Public defender David Kliment subsequently took over defendant\u2019s representation because Willett was busy with a trial. Kliment later filed a motion to withdraw based on a conflict of interest with defendant. The trial court granted Kliment leave to withdraw and appointed private counsel Ronald Dolak to represent defendant. Dolak represented defendant through the remainder of the trial proceedings.\nBased on our conclusion that the fingerprint issue has potential merit, we need not address defendant\u2019s argument regarding the use of an interpreter.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Thomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "John A. Barsanti, State\u2019s Attorney, of St. Charles (Lawrence M. Bauer and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLON JOHNSON, Defendant-Appellant.\nSecond District\nNo. 2\u201408\u20140839\nOpinion filed May 21, 2010.\nThomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJohn A. Barsanti, State\u2019s Attorney, of St. Charles (Lawrence M. Bauer and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0685-01", "first_page_order": 701, "last_page_order": 713 }