Illinois Supreme Court holds that trial court is not required to conduct Krankel inquiry unless it is initiated by the defendant

In People v. Bates, 2019 IL 124143, the Illinois Supreme Court was asked to decide whether statements made by counsel during a hearing on a motion for new trial, stating his surprise at the depth of evidence introduced and admission that he would have had the evidence tested by experts if he’d known the depth, constituted an admission of ineffective assistance of counsel requiring a Krankel hearing.

Bates was originally arrested and charged with home invasion, aggravated criminal sexual assault, and other crimes arising from two separate incidents. Id. at ¶ 3. The state alleged crimes against two separate victims and tried each case separately. Bates was represented by a public defender for one of the cases and private counsel for the other. Id. at ¶ 4. At trial for the crimes against A. P. (the proceeding in which Bates was represented by private counsel), the State moved in limine to introduce evidence of the second assault against C. H., pursuant to section 115-7.3(b) of the Code of Criminal Procedure. Id. at ¶ 4. Counsel subsequently moved for a continuance to evaluate the “voluminous” discovery documents and the court appointed  DNA expert to review the DNA testing conducted by the Illinois State Police. Counsel also moved for reconsideration of the order permitting the State to introduce the evidence, arguing that defendant could not receive a fair trial if the evidence was introduced. Id. at ¶ 5-6.

At trial, counsel made conflicting and inconsistent statements regarding the evidence and facts in the C.H. case. Counsel stated that he assumed the evidence and facts in the C.H. case were “basically correct,” yet should be considered by the jury as “not much,” and just an “accusation.” Id. at ¶ 6-7. Both victims, as well as state-appointed DNA expert, testified at trial. DNA matches, or near matches, were testified to by the State’s expert. The defense presented their own DNA expert, who challenged the conclusiveness of the State’s expert’s findings. Id. at ¶ 10. In closing arguments, counsel argued that the jury should not put much weight on the “case within a case” and stated there was no review by any DNA experts. Appellant was found guilty of home invasion and two counts of aggravated criminal sexual conduct.

Bates subsequently moved for a new trial, arguing that the court erred by denying his motion in limine to exclude the other crimes evidence and in granting a motion by the State to exclude evidence regarding A.P.’s sexual history. Id. at ¶ 11. At the hearing for that motion, counsel stated that he was not capable of doing “as good a job in defending [his] client since it wasn’t [his] case,” that he was “taken by surprise at the depth of the evidence and testimony brought by the State’s attorney,” and would have asked for review by experts had he been thinking about that case. Id. at ¶ 11. The court denied the motion.

On appeal, Bates argued that he did not receive effective assistance of counsel, that he was denied his constitutional right to confront witnesses against him, that he should have received a new trial because the State made improper statements in its closing arguments, that the amount of other crimes evidence deprived him of a fair trial, and that the trial court erred when it failed to conduct a Krankel hearing. The appellate court affirmed. Id. at ¶ 12. The Supreme Court granted PLA.

Bates argued in the Supreme Court only that the trial court erred in failing to conduct a Krankel hearing, alleging that counsel’s statements at oral argument for the motion for a new trial constituted an admission that he neglected the case. Id. at ¶ 14. The court noted that Krankel requires the court to inquire into a claim of ineffective assistance of counsel, so long as the claim is clearly raised with the court. Id. at ¶ 15. Further, the court acknowledged efforts and statements made by counsel confirming he had not thoroughly evaluated the other crimes evidence, that he was not the attorney for that proceeding, and counsel’s requests made to the jury not to place weight on that evidence. Additionally, the court noted that the evidence in the C. H. case was “much stronger” than that of the A. P. case. Id. at ¶ 17-18.

Bates argued that the trial court should have treated the statements at the hearing for the motion for a new trial as an admission of neglect and conducted a Krankel hearing. Appellant cited People v. Willis, People v. Williams, and People v. Hayes in support. In response, the appellate court noted that the court has never held that a Krankel hearing may be triggered by a defense counsel’s representations in the absence of a pro se motion, citing People v. McGrath. Id. at ¶ 21. The Supreme Court held that all cited cases, but for Williams, Hayes, and McGrath, were distinguishable in circumstance and fact. Id. at ¶ 31.

Ultimately, the Supreme Court agreed with the holdings of McGrath and the appellate court, which stated that if a defendant fails to raise a pro se claim of ineffective assistance, there is no reason for the trial court to conduct a Krankel hearing. Id. at ¶ 31-32. The court explained to hold otherwise would subject the trial court to an unworkable standard requiring that it scrutinize every statement and action by counsel, including privileged matters.

As such, the Supreme Court affirmed the holding of the appellate court, yet modified it slightly to require a trial court to inquire into counsel’s effectiveness “only upon a clear claim of ineffective assistance by a pro se defendant or by an attorney at the defendant’s direction.” The court found that appellant find not raise a claim of ineffective assistance nor did the record indicate that he had directed counsel to make such a claim. Thus, the court was not required to hold a Krankel hearing. Id. at ¶ 36.

Trial court properly granted Kuehner motion where post-conviction counsel provided evidence that claims were frivolous

The appellant in People v. Fathauer, 2019 IL App (4th) 180241 appealed the trial court’s order dismissing his post-conviction petition on grounds that the court erred by granting post-conviction counsel’s motion to withdraw in light of a stated claim for ineffective assistance of counsel and post-conviction counsel’s failure to amend his pro se petition. The Fourth District Appellate Court affirmed.

Fathauer was originally convicted of participation in methamphetamine manufacturing and obstruction of justice, and sentenced to concurrent terms of 20 years and 3 years imprisonment. Id. at ¶ 1. On direct appeal, both his conviction and sentence were affirmed by the appellate court. Shortly thereafter, Fathauer filed a pro se petition for post-conviction relief, alleging four grounds for relief, including ineffective assistance of trial counsel. Id. at ¶ 2. The trial court appointed appellate counsel, who subsequently filed a motion to withdraw, citing People v. Kuehner, 2015 IL 117695, and arguing that each of the pro se claims were frivolous and patently without merit. Id. at ¶ 3. Counsel’s motion was initially granted by the court, and Fathauer’s appearl was dismissed for want of a final order. Id. at ¶ 4. On remand, the trial court granted the State’s motion to dismiss. This appeal followed.

Fathauer argued on appeal that the trial court erred by granting post-conviction counsel’s motion to withdraw because the petition stated a claim for ineffective assistance of counsel and because post-conviction counsel rendered unreasonable assistance by failing to amend the pro se petition. Id. at ¶ 5. As to the ineffective assistance of trial counsel claim, Fathauer alleged that counsel failed to scientifically test spots on his clothing and point out inconsistencies in trial testimony, and that such a lack of pre-trial investigation by his counsel “deprived him of a potential defense” that would have prevented his conviction at trial. Id. at ¶ 27. The State responded to his petition with a motion to dismiss, arguing that appellant’s claims were barred by res judicata, insufficiently pled, and unsupported by the record. Id. at ¶ 29.

In response to Fathauer’s claims of ineffective assistance of trial counsel, post-conviction counsel, in his motion to withdraw under Kuehner, asserted that “there is no evidence from the record to support” the claims made by Fathauer and that Fathauer had “not demonstrated deficient performance by trial counsel that caused him prejudice.” Id. at ¶ 32. Postconviction counsel also expressed his concurrence with the State that the issue of false testimony had been argued and rejected on direct appeal and was therefore barred by res judicata. As to the Kuehner issue, Fathauer argued that post-conviction counsel should not have been permitted to withdraw because his petition stated the gist of a constitutional claim of ineffective assistance of trial counsel.

The appellate court noted that Kuehner requires a two-step analysis. First, the court must determine whether the trial court advanced the petition to the second stage of postconviction proceedings on its merits, based upon its conclusion that the petition stated the gist of a constitutional claim. Second, the court must evaluate whether counsel provided “at least some explanation as to why, despite its superficial virtue, the pro se petition was in fact frivolous or patently without merit” with respect to each claim. Id. at ¶ 47. On the first requirement, the court held that the appointment of counsel was a sufficient and satisfactory action. Id. at ¶ 48. On the second requirement, the court held that it must address whether postconviction counsel (1) provided some information that was not apparent on the face of the petition that (2) demonstrated that each of defendant’s pro se claims were in fact frivolous and patently without merit. Id. at ¶ 50.

To that end, the court held that when post-conviction counsel provided the trial court with the full transcript of the witness’ testimony and the court’s decision on direct appeal, counsel was calling the court’s attention to information not apparent on the face of the petition and met Kuehner’s requirement. Id. at ¶ 52. Moreover, the court held that if counsel determines that appellant’s claims are barred by res judicata or are contradicted by the record, counsel has an ethical obligation to move to withdraw if he reasonably believes that the trial court erred when it found the petition had merit at first glance. Id. at ¶ 58. The court found further that post-conviction counsel had properly explained why each of the claims within the post-conviction petition were frivolous and patently without merit. Id. at ¶ 64. Thus, the court held that counsel’s motion to withdraw was proper under Kuehner.

Finally, as to Fathauer’s assertion of unreasonable assistance of post-conviction counsel for failing to amend his pro se petition, the court held that appellant’s claims were contradicted by the record, and that, because counsel is not required to advance frivolous claims, could not amount to unreasonable assistance. Id at ¶ 68. The Appellate Court affirmed.

Appellate Court remands for Krankel hearing where defendant makes ineffective assistance claims to Probation during PSI interview

The appellant in People v. Downing, 2019 IL App (1st) 170329 appealed the trial court’s decision denying a request made by the State for a Krankel inquiry into alleged ineffective assistance of Downing’s trial counsel. The First District held that, despite an initial answer to the contrary, a Krankel inquiry was necessitated in this case, reversing the judgment of the circuit court, and remanding for Krankel proceedings. Id. at ¶ 4.

Downing was found guilty of possession of cannabis with intent to deliver. During his pre-sentence investigation interview, Downing complained of his trial counsel’s performance, which complaints were evidenced in the pre-sentence investigation report (PSI). These complaints included allegations that counsel requested to call three witnesses at trial, who were never called; requested new counsel, which was never provided; was denied a request testify on his own behalf; allowed the police to make false statements at trial; failed to raise issues regarding the arresting officers’ failure to read him his Miranda rights; and failed to challenge inaccuracies in the police report. Id at ¶ 10.

At sentencing, the State argued in aggravation that the complaints detailed in the PSI were evidence of Downing’s lack of remorse. Id. at ¶ 11. However, neither at sentencing nor in any other communication with the court did Downing repeat his complaints about his counsel. Downing was subsequently sentenced to seven years imprisonment. Id. at ¶ 12. This appeal followed.

On appeal, Downing argued that the trial court was required to conduct a Krankel inquiry into the allegations of attorney incompetence expressed to the probation department during his PSI interview. Id. at ¶ 15. At the outset, the court acknowledged “there is no dispute that at least some of these allegations sufficed, in terms of their content, to raise a pro se post-trial claim of ineffective assistance of counsel.” Id. at ¶ 17. However, the court noted its decision ought not be predicated on the content of the claims, but the manner in which they were received by the trial court, and by whom they were delivered. Id. at ¶ 18. As a result, the court held that the question they must evaluate was whether allegations of ineffective assistance of counsel, attributed to the defendant but presented to the trial court in open court by someone other than the defendant, require the court to conduct a Krankel inquiry. Id. at ¶ 18.

The court held that it should not make “a difference that the issue [of ineffective assistance of counsel] was raised by the State.” Id. at ¶ 21. As a result, the court concluded that it was a logical extension of existing precedent (Jackson) to hold that, because the State emphasized in open court that defendant had complained about his trial representation and specifically directed the trial court to the page of the PSI in which those complaints appeared, the trial court had a duty under Krankel to conduct an inquiry into the substance of these claims. Id. at ¶ 22. The court further held that more recent case law (Harris) supported such a holding in this case. Id. at ¶ 23.

As a result, the First District remanded this case to the trial court for a preliminary Krankel inquiry, which is designed to determine whether defendant wishes to pursue his allegations in a Krankel proceeding. Id. at ¶ 71. In the event defendant wishes to pursue them, the trial court is instructed to determine whether the allegations reveal possible neglect of the case by counsel. Id. at ¶ 72.

Petitioner was not able to show prejudice under Strickland where he was unable to show that it would have been reasonable to reject the plea offer

The appellant in People v. Watkins, 2019 IL App (4th) 180605 appealed the decision of the trial court striking his post-plea motions to withdraw his guilty pleas as untimely and summarily dismissing his post-conviction petition. The Fourth District affirmed the judgments of the trial court because the appellant withdrew his challenges to the dismissal of his post-plea motions and found the post-conviction petition to be frivolous and patently without merit. Id. at ¶ 2.

Watkins entered negotiated guilty pleas for unlawful possession of a controlled substance with the intent to deliver it, for which he received two consecutive six-year terms of imprisonment. Id. at ¶ 1. At the time the trial court accepted the plea, the court found the factual bases to be sufficient and the guilty pleas to be knowingly, voluntarily, and intelligently made. Id. at ¶ 7.

Shortly thereafter, Watkins moved to withdraw his guilty pleas in both cases, while simultaneously petitioning the court for post-conviction relief. Id. at ¶ 10. The post-plea motions alleged that the pleas had been “induced by erroneous advice and urging by [defense counsel] that pleading guilty was the only choice that [he] had because all the evidence suggested that he was guilty.” Watkins further alleged that the guilty pleas were not voluntary and knowing and that he was not aware of the direct consequences of his pleas. Id. at ¶ 10. Both petitions were stricken as untimely for being filed “well after” 30 days after judgment. Id. at ¶ 11.

As noted, at the time the motion to withdraw guilty plea was entered, Watkins also filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel for failing to challenge the legality of the traffic stop resulting in appellant’s arrest. Id. at ¶ 13. Appellant alleged that this ineffective assistance resulted in an involuntary guilty plea and the subversion of his will via bad legal advice. Watkins argued that defense counsel should have subjected the State’s case to meaningful adversarial testing by filing a motion to suppress, which would have been granted by the court. The petition included three reasons why Watkins had suffered a violation of his fourth amendment rights during the traffic stop. Shortly after filing, the circuit court summarily dismissed the post-conviction petition. This appeal followed.

On appeal, Watkins abandoned his challenge to the dismissal of the motions to withdraw both guilty pleas. As such, the court did not evaluate these claims and affirmed the circuit court’s judgement in this regard. Id. at ¶ 21.

On the summary dismissal of the post-conviction petition, the court determined that because any claim of substantial denial of constitutional rights not raised in the original or amended post-conviction petition is waived, its analysis would be limited exclusively to issues raised in the original petition. Id. at ¶ 24. To that end, the court utilized the Strickland test for determining the effectiveness of defense counsel, requiring a petitioner to demonstrate both deficient performance and prejudice resulting from the alleged ineffective assistance. Id. at ¶ 29.

The court noted that under the Strickland standard, “a conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice;” rather, a petitioner must also demonstrate that a decision to reject the plea bargain would have been rational under the circumstances. Id. at ¶ 31. In its review of the reasonableness of defense counsel’s advice to accept the plea deal (as opposed to filing a motion to suppress), the court held that counsel’s advice to accept a plea deal for less than half the maximum prison term was a strategic decision that the court owed great deference to. It therefore concluded that the post-conviction petition in this case was frivolous. Id. at ¶ 39. The appellate court affirmed.

Appellate court reverses denial of 2-1401 petition where State did not file a response

The appellant in People v. Cathey2019 IL App (1st) 153118, appealed the decision of the trial court dismissing two petitions seeking relief from convictions, on grounds that the court erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure attacking his convictions under the one-act, one-crime rule. Appellant further contended that his petition “in nature of writ of error coram nobis” sufficiently stated a claim of actual innocence (based on planted evidence) and that his plea was obtained under threat of physical harm to him and his family. The First District affirmed the dismissal of appellant’s coram nobis petition but reversed the dismissal of his section 2-1401 petition and remanded for further proceedings.

Cathey was found guilty at jury trial for attempted first degree murder and aggravated battery with a firearm and sentenced to 20 years’ imprisonment for both charges. Cathey’s sentences were ordered to be served concurrently. Id. at ¶ 2-9. Cathey unsuccessfully appealed his convictions, arguing, unpersuasively, that his counsel was ineffective and that his due process rights had been violated. Id. at ¶ 10. After his subsequent pro se post-conviction petition was dismissed by the trial court, he filed the petitions for which this appeal is the subject.

The appellate court’s analysis of each of appellant’s petitions were conducted independent of one another. The court evaluated appellant’s section 2-1401 petition first.

Upon filing his pro se section 2-1401 petition alleging a one-act, one-crime violation, the State did not file a response. Id. at ¶ 12. Shortly after filing, the trial court sua sponte dismissed the petition. At no point did the court orally state its reasons for dismissing the petition, nor did it state for the record that Cathey or a representative was present. In its written order, the trial court found Cathey’s petition untimely since it was filed more than 20 years beyond the limitations period. The court also found that defendant was not entitled to relief on his one-act, one-crime claim “because aggravated discharge of a firearm and attempt murder are separate convictions.” Id. at ¶ 12. This appeal followed.

The court noted that section 2-1401 sets forth a procedure, that extends to criminal cases, by which the trial court may vacate final orders and judgements more than 30 days after their entry. Further, the court noted that because the State failed to file a response to the petition and the trial court did not hold a hearing before dismissing the petition, the threshold issue is whether the trial court had the authority to dismiss defendant’s section 2-1401 petition sua sponte because it was untimely filed where the timeliness issue was never raised by the parties. Id. at ¶ 14.

The appellate court found that pursuant to rulings in People v. Vincent and People v. Pinkonsly, the trial court cannot sua sponte dismiss a section 2-1401 petition based on untimeliness if that issue was never raised before the court. Id. at ¶ 18. Further, the court held that when the State does not answer a petition, its failure to respond constitutes an admission of all well-pleaded facts and that no triable issue of fact exists. Id. at ¶ 18. The court reasoned that where the State forfeits the timeliness defense by not answering the petition, defendant has no opportunity to amend his petition to allege facts showing a potential factual dispute, and dismissal, in this context, would be improper as a matter of law.

On the merits of the petition, the court held that while the petition sufficiently alleged a meritorious claim, “to obtain relief defendant must also allege facts supporting due diligence in presenting the claim to the trial court, and due diligence in filing section 2-1401 petition.” Id. at ¶ 27. Appellant alleged in his petition that he was not aware of the one-act, one-crime rule until September 2013, and that he relied upon his attorney to conduct his defense. The court ruled that while they must take all-well pleaded allegations as true, the issue of defendant’s diligence here raises questions of fact more suitable for an evidentiary hearing. As a result, the appellate court reversed the dismissal of appellant’s petition and remanded the cause for an evidentiary hearing on the issue of defendant’s diligence. Id. at ¶ 28.

On the motion in “Nature of Writ of Error Coram Nobis,” the appellate court noted that Illinois legislature had long ago replaced the common law writ with the statutory scheme that was the predecessor to section 2-1401 of the Code. As such, the motion was treated as a section 2-1401 petition for relief. Id. at ¶ 41. Under that framework, the appellate court determined the new evidence presented by appellant was “not of such conclusive character that it would change the result upon retrial” and therefore, the trial court had properly dismissed the petition. Id at ¶ 50.

Ultimately, the Appellate Court of Illinois First District affirmed in part, and reversed in part, the dismissal of appellant’s section 2-1401 petition and coram nobis petition. The case was remanded for further proceedings.


Denial of pro se motion reversed where court did not notify petitioner that it was re-characterizing his pleading before denying it

The appellant in People v. Cook, 2019 IL App (1st) 161428, appealed the trial court’s denial of his pro se “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings.” Cook contended that the court erred in re-characterizing his motion as a successive post-conviction petition and denying him leave to file it without first notifying him and giving him an opportunity to withdraw or amend it. The appellate court agreed and vacated the trial court’s order and remanded to give Cook the requisite notice and opportunity to withdraw or amend the motion. Id. at ¶ 2.

Cook filed his “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings” absent citation or naming any statutory basis for his filing it. However, the motion claimed newly discovered evidence and argued that he was not proved guilty beyond a reasonable doubt, he was actually innocent, and he was wrongfully convicted. Id. at ¶ 4.

The motion was not supported by any attachments. The circuit court issued an order finding that the filing asserted constitutional claims as a collateral attack on his conviction and characterized the filing as a successive post-conviction petition. In the same order, the court denied leave to file the petition, finding that the claims were barred by waiver and res judicata and that Cook had not stated the requisite cause and prejudice for a successive post-conviction petition to be filed. Id. at ¶ 5. Cook appealed.

On appeal, Cook’s sole contention was that the court erred in re-characterizing the pleading as a successive post-conviction petition without giving Cook notice and an opportunity to amend or withdraw it, as required under People v. Shellstrom and People v. Pearson. Id. at ¶ 7. The State did not dispute appellant’s contention. However, the State argued that the court was not required to provide notice, as the filing was not a pleading commencing an action cognizable under Illinois law.

The appellate court held that while it is settled law that the court can re-characterize a pro se pleading alleging a deprivation of rights cognizable in an post-conviction proceeding (even when it is not labeled as such), the Shellstrom court held “when a circuit court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must (1) notify the pro se litigant” among other requirements. Id. at ¶ 10.

In response to the State’s argument that appellant’s motion did not include a pleading cognizable under Illinois law and therefore Shellstrom/Pearson should not apply, the court looked to People v. Swamynathan, which held that Shellstrom applied, despite not being a pleading commencing a cognizable action other than a post-conviction petition. The appellate court held that Shellstrom admonishments always follow a re-characterization, not just when the cognizable-action provisio applies. Id. at ¶ 16.

Ultimately, the appellate court found that the circuit court erred by not giving appellant the three-part Shellstrom admonishments upon re-characterizing his pro se motion as a successive post-conviction petition and denying leave to file it as such. Id. at ¶ 20. The appellate court vacated the trial court’s judgment and remanded to the case to the trial court to provide appellant with the Shellstrom admonishments.

Petitioner unable to show cause and prejudice for successive petition where he had raised a re-sentencing claim before

The appellant in People v. Morrow, 2019 IL App (1st) 161208, appealed the decision of the trial court denying him leave to file a successive post-conviction petition on grounds that his appellate counsel was ineffective for failing to ask the court to remand for re-sentencing following the vacation of his armed robbery conviction. The appellate court ultimately affirmed the trial court’s order.

Morrow was convicted of murder and armed robbery after a jury trial and sentenced to concurrent terms of 60 years imprisonment for murder and 20 years for armed robbery. On direct appeal, the appellate court affirmed appellant’s murder conviction and sentence but vacated his armed robbery conviction and sentence; finding that the State had failed to prove beyond a reasonable doubt that defendant had any intent to rob the victim. Id. at ¶ 18.

Morrow then filed a post-conviction petition, which was dismissed by the court as frivolous and patently without merit. Id at ¶ 19. Morrow appealed, and the trial court’s decision was affirmed. Following unsuccessful filings of a pro se habeas corpus petition, a pro se petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure, multiple motions for leave to file a successive petition, Morrow filed a third motion for leave to file a successive petition, which was the subject of this appeal. Id. at ¶ ¶ 33-37.

The third motion argued that the appellate court erred and that appellate counsel was ineffective for failing to ask the appellate court to remand for re-sentencing when it vacated his armed robbery conviction. Id. at ¶ 38. Further, the motion argued that Morrow’s post-conviction counsel was ineffective for failing to raise these claims before and that his sentence was excessive in light of his criminal history of misdemeanor offenses. Id. at ¶ 38. The trial court found that appellant had failed to establish either cause or prejudice and denied him leave to file the petition. Id. at ¶ 40. This appeal followed.

The court noted that in order to determine whether a successive petition can even be filed, the trial court must first determine whether the petition “(1) states a colorable claim of actual innocence or (2) establishes cause and prejudice.” Id. at ¶ 47. As Morrow exclusively allied cause and prejudice, that is the basis under which the court considered the claim. The court noted that “(u)nder the cause-and-prejudice test, a defendant must establish both (1) cause for his or her failure to raise the claim earlier and (2) prejudice stemming from his or her failure to do so.” The court noted that as “both prongs of the cause and prejudice test must be satisfied, we may uphold the denial of leave to file a claim if defendant has failed to establish either prong.” Id. at ¶¶ 55-57.

The appellate court rejected Morrow’s arguments because it determined that there was no evidence that the trial court was ever influenced by the armed robbery conviction or that appellate counsel’s alleged failure to raise the claim resulted in prejudice. Id. at ¶ 70. In support of this conclusion, the court pointed to statements in the record indicating that the trial court’s determination that the precipitating factor in the murder was defendant’s desire to protect his prostitutes, rather than a desire to rob the victim. Id. at ¶ 69.

The court also could not find cause excusing the failure to raise the claim earlier. Id. at ¶ 72. The court noted that appellate counsel did not seek a remand for re-sentencing, but also noted that Morrow could not possibly establish cause, as he had in fact raised the issue of re-sentencing in an earlier claim. Id. at ¶ 74. The court rejected subsequent arguments made by appellant that he could not have raised those claims earlier, as it would have required him to request his defense lawyer to argue his own ineffectiveness. Id. at ¶ 80.

Having found Morrow unable to establish cause and prejudice, and appellate court affirmed the trial court’s order denying Morrow leave to file a successive petition.