source: Caselaw Access Project

license: Public Domain

text:
    Michelle MCMANUS, Plaintiff and Counterdefendant-Appellant, v. Anne B. RICHARDS, Defendant and Counterplaintiff-Appellee.
    Appeal No. 3-17-0055
    Appellate Court of Illinois, Third District.
    Opinion filed March 2, 2018 Modified Opinion Upon Denial of Rehearing March 29, 2018
    James S. Zmuda, of Califf & Harper, P.C., of Moline, for appellant.
    Jerry J. Pepping and Jennifer L. Kincaid, of Pepping, Balk, Kincaid & Olson, Ltd., of Silvis, and Brett A. Nelson, of Nelson Law Group, P.C., of Flower Mound, Texas, for appellee.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff and counterdefendant, Michelle McManus, filed this interlocutory appeal following the Rock Island County circuit court's grant of summary judgment in favor of defendant and counterplaintiff, Anne B. Richards. McManus challenges the court's (1) decision to assign the contract's term "cause" its simple dictionary meaning rather that "its established and precise legal meaning" and (2) finding that Richards gave her proper written notice of her intent to disassociate. McManus also challenges the court's grant of the motion for summary judgment on the grounds that it failed to consider her claims regarding breach of fiduciary duty or breach of the duty of good faith and fair dealing. Finally, she asserts that the court erred to the extent that it failed to consider the applicability of the buy-sell agreement as it relates to the purchase of her membership interest in the practice. We reverse and remand.

¶ 2 FACTS

¶ 3 The parties are orthodontists. McManus began working at Richards's practice, Quad City Orthodontic Group, LLC (the practice), as an associate in 2010. The practice has an office in Rock Island, Illinois, and another in Bettendorf, Iowa.

¶ 4 On January 1, 2012, the parties entered into an "Agreement for Sale of Membership Interest in Limited Liability Company and Agreement for the Conducting of Professional Business Operations" (Operations Agreement). The parties amended the agreement in December 2012. The agreement provided that Richards, then the sole owner of the practice, would sell a 50% membership interest to McManus, who agreed to purchase her interest over a five-year period. The Agreement further provided for the dissolution of the practice and for the repurchase of McManus's membership interest. In relevant part, it provided for McManus's voluntary disassociation as follows:

"In the event that [McManus] should voluntarily elect to no longer practice dentistry under the joint dental practice with Dr. Richards, all percentages of Membership Interest purchased by [McManus] from [Richards], by way of this Agreement, shall be sold back to [Richards], under the terms of this Agreement, for a discounted price of fifty percent (50%) of the Purchase Price heretofore paid by [McManus] to [Richards]."

The Operations Agreement also provided McManus's involuntary disassociation from the practice as follows:

"In the event that Richards finds cause to involuntarily disassociate McManus from the Company's dental practice, Richards shall give written notice to [McManus] of said involuntary disassociation decision setting for the last day of McManus' association with the Company and the joint dental practice. [Richards] then, within ninety (90) days of the last day of McManus' association, shall repurchase all of [McManus's] Membership Interest at one hundred percent (100%) of the Purchase Price heretofore paid to [Richards] by [McManus]. [Richards ] reserves the right, at her sole discretion, to pay the price to [McManus], for the repurchase of [McManus's] Membership Interest, either as a single payment, or quarterly over a period of three years."

¶ 5 The parties also signed an "Insured Purchase Agreement and Member Interest Redemption Plan for Quad City Orthodontic Group L.L.C." (Buy-Sell Agreement), which set out the specific details regarding the sale and purchase of the practice's membership interest.

¶ 6 Over time, tensions developed between the parties. On April 27, 2016, Richards and the practice's office manager, Denise Coyne, met with McManus and informed her of Richards's intent to disassociate her from the practice. At that time, Richards owned a 55% interest in the practice and McManus a 45% interest. During the meeting, Richards gave McManus a "Purchase and Sale Agreement" and a document titled "Appendix A Dissolution of Purchase Agreement Entered January 1, 2012[,] by Seller Anne Bronwen Richards and Purchaser Michelle McManus." Following the meeting, Coyne changed the locks on both offices, reset the passwords to all computer-based information, and excluded McManus's access to patient records.

¶ 7 In May 2016, McManus filed a complaint in the circuit court of Rock Island County, requesting injunctive relief (count I) and alleging breach of contract (count II), breach of fiduciary duty (count III), and breach of the duty of good faith and fair dealing (count IV) against Richards.

¶ 8 In June 2016, Richards filed a motion for summary judgment. She asserted that the issue before the court involved "mere contract interpretation" as to whether she satisfied the provisions required by the Operations Agreement to disassociate McManus from the practice. Richards maintained that she satisfied those provisions, and thus, did not breach the parties' contract, fiduciary duties, or the duty of good faith and fair dealing. Accordingly, she maintained "there are no genuine issues of material fact that are disputed by the parties that would preclude an entry of this Motion for Summary Judgment."

¶ 9 In November 2016, McManus filed a "Resistance to Defendant's Motion for Summary Judgment," asserting, in relevant part, that Richards (1) breached the Operations Agreement by not providing written notice of the involuntary disassociation and by expelling McManus from the practice without cause and (2) violated her fiduciary duties of loyalty and care and her duty of good faith and fair dealing. In the alternative, McManus argued if the court found no genuine issue of material fact, Richards should be required to purchase her interest in the practice pursuant to the Buy-Sell Agreement.

¶ 10 Later that month, the trial court conducted a hearing on the motion for summary judgment. The central disagreement between the parties revolved around whether Richards had "cause" to involuntarily disassociate McManus from the practice, since the term was not defined in the Operations Agreement. According to Richards, the agreement did not "require any finding of wrongdoing in order for [her] to find cause for disassociation," and it did not "impose any requirements or standards that first must be satisfied for [her] to find cause to disassociate McManus." Richards maintained that "[c]ause under the [a]greement is just meaning a reason" and "the [a]greement clearly states that cause is determined by Richards, not a trier of fact or objective standard." In contrast, McManus asserted that the term "cause" must be given its legally significant meaning, not a simple dictionary definition. Ultimately, the trial court agreed with Richards's interpretation of "cause" and granted her motion for summary judgment.

¶ 11 In December 2016, McManus filed an amendment to her complaint, pursuant to a November 2016 order allowing her leave to do so in which she added a request for declaratory judgment (count V) and an accounting (count VI). McManus also filed a motion for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). The trial court granted McManus's motion. She appeals.

¶ 12 ANALYSIS

¶ 13 On appeal, McManus asserts that the trial court erred in granting Richards's motion for summary judgment. Specifically, she challenges the court's (1) decision to assign the contract's term "cause" its simple dictionary meaning rather that "its established and precise legal meaning" and (2) finding that Richards gave her proper written notice of her intent to disassociate. McManus also challenges the court's grant of the motion for summary judgment on the grounds that it failed to consider her claims regarding breach of fiduciary duty or breach of the duty of good faith and fair dealing. Finally, she asserts that the court erred to the extent that it failed to consider the applicability of the Buy-Sell Agreement as it relates to the purchase of her membership interest in the practice.

¶ 14 A. Summary Judgment and the Standard of Review

¶ 15 "Summary judgment is appropriate when 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Illinois State Bar Ass'n Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas , 2015 IL 117096, ¶ 14, 389 Ill.Dec. 575, 27 N.E.3d 67 (quoting 735 ILCS 5/2-1005(c) (West 2010) ). "In determining whether a genuine issue of material fact exists, the pleadings, depositions, admissions and affidavits must be construed strictly against the movant and liberally in favor of the opponent." Adames v. Sheahan , 233 Ill. 2d 276, 295-96, 330 Ill.Dec. 720, 909 N.E.2d 742 (2009). "A genuine issue of material fact precluding summary judgment exists where the material facts are disputed, or, if the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts." Id. at 296, 330 Ill.Dec. 720, 909 N.E.2d 742. "Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). We review a trial court's entry of summary judgment de novo . Id.

¶ 16 B. Contract Interpretation

¶ 17 At issue is whether a genuine issue of material fact exists regarding whether Richards possessed "cause" to involuntarily disassociate McManus from the practice. Resolution of this issue requires us to determine what definition applies to the term "cause" as provided by the Operations Agreement.

¶ 18 The primary objective when construing the language of a contract is to give effect to the intent of the parties, which is discerned from the language of the contract. Thompson v. Gordon , 241 Ill. 2d 428, 441, 349 Ill.Dec. 936, 948 N.E.2d 39 (2011). "Moreover, because words derive their meaning from the context in which they are used, a contract must be construed as a whole, viewing each part in light of the others."

Gallagher v. Lenart , 226 Ill. 2d 208, 233, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007). "If the words in the contract are clear and unambiguous, they must be given their plain, ordinary and popular meaning." Gordon , 241 Ill. 2d at 441, 349 Ill.Dec. 936, 948 N.E.2d 39. "[I]f the language of the contract is susceptible to more than one meaning, it is ambiguous." Id. However, "[a] contract is not rendered ambiguous merely because the parties disagree on its meaning." Central Illinois Light Co. v. Home Insurance Co. , 213 Ill. 2d 141, 153, 290 Ill.Dec. 155, 821 N.E.2d 206 (2004). "Rather, ambiguity exists only if the term is susceptible to more than one reasonable interpretation." Nicor, Inc. v. Associated Electric & Gas Insurance Services, Ltd. , 223 Ill. 2d 407, 417, 307 Ill.Dec. 626, 860 N.E.2d 280 (2006). We review de novo a trial court's interpretation of a contract. Bright Horizons Children's Centers, LLC v. Riverway Midwest II, LLC , 403 Ill. App. 3d 234, 245, 341 Ill.Dec. 883, 931 N.E.2d 780 (2010).

¶ 19 The specific provision at issue here provides, in relevant part: "In the event that Richards finds cause to involuntarily disassociate McManus from the Company's dental practice, Richards shall give written notice to [McManus] of said involuntary disassociation decision setting for the last day of McManus' association with the Company and the joint dental practice." (Emphasis added.)

¶ 20 As she did below, Richards maintains that the term "cause," which is not defined in the Operations Agreement, must be given its common dictionary definition of "a reason for an action" or "that which produces a result; the reason for something." See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/cause (last visited Feb. 6, 2018); Black's Law Dictionary 221 (6th ed. 1990). Thus, she contends that "the contract as written sets forth a subjective standard and vested [her] with the contractual discretion to make the determination of whether she found a reason to disassociate McManus and, thereby end their contractual relationship."

¶ 21 On the other hand, McManus argues that the term "cause" must be given its "established and precise legal meaning" as "this is a complicated contract between two sophisticated people." She asserts that while cases defining "cause" in the employment context are instructive, the standard for "cause" in cases concerning limited liability companies must be even stricter.

¶ 22 After reviewing the Operations Agreement, considering each provision of the agreement in light of the others, we find the agreement requires Richards to possess more than a subjective reason for involuntarily disassociating McManus from the practice. Were we to accept Richards's definition of "cause," we would have to conclude that the agreement essentially permits Richards to exploit McManus's financial investment and professional services in order to build up her business, expel McManus from the practice one day shy of receiving her last payment, and then hold on to a portion of McManus's money over the next three years. Such a result is not only inequitable but absurd.

¶ 23 In the employment context, "cause" is defined as " 'some substantial shortcoming, recognized by law and public opinion as a good reason for termination.' " Bishop v. Lakeland Animal Hospital, P.C. , 268 Ill. App. 3d 114, 117, 205 Ill.Dec. 817, 644 N.E.2d 33 (1994) (quoting Norman v. Board of Fire & Police Commissioners , 245 Ill. App. 3d 822, 830, 185 Ill.Dec. 365, 614 N.E.2d 499 (1993) ). Similarly, "discharge for cause" is defined as "reasonable, just or good cause, not discharge for any cause or discharge for bad cause." Staton v. Amax Coal Co. , 122 Ill. App. 3d 631, 634, 78 Ill.Dec. 28, 461 N.E.2d 612 (1984). In other words, an employer must often possess more than a subjective reason to discharge an employee. In this case, the parties do not have an employer-employee relationship but are members of a limited liability company. As such, we agree with McManus that the term "cause" as it is used in the Operations Agreement requires a higher standard than that which is typical in the employment context.

¶ 24 To that end, we are guided by subsection 35-45(6) of the Limited Liability Company Act (Act) ( 805 ILCS 180/35-45(6) (West 2016) ). That section delineates events that may result in a member's involuntary expulsion by the court. Specifically, section 35-45(6) provides for a "member's expulsion by judicial determination" if the member (1) "engaged in wrongful conduct that adversely and materially affected the company's business"; (2) "willfully or persistently committed a material breach of the operating agreement or of a duty owed to the company or the other members under Section 15-3"; or (3) "engaged in conduct relating to the company's business that makes it not reasonably practicable to carry on the business with the member." Id. Here, the record is devoid of any indication that McManus engaged in wrongful conduct or willfully or persistently committed a material breach of the operations agreement or of a duty she owed. In fact, the trial court never considered the issue, finding that any reason would do. We conclude, however, that whether Richards possessed sufficient cause to involuntarily disassociate McManus from the parties' practice depends on whether McManus's conduct made it unreasonable for the two to continue working together.

¶ 25 After reviewing the record, including the affidavits and depositions of the parties and staff, we find a genuine issue of material fact exists such that summary judgment is precluded. We note that while Richards testified to a number of conflicts between the parties, McManus was of the opinion that they "came up with solutions that accommodated or addressed all of [Richards] concerns" and that Richards "was getting everything she was asking for." Whether the status of the parties' relationship and/or McManus's conduct makes it not reasonably practicable or unreasonable for the two to continue working together, despite evidence of an otherwise profitable orthodontics practice, is a material fact that they dispute. Accordingly we reverse the trial court's grant of summary judgment and remand for further proceedings.

¶ 26 C. Remaining Issues

¶ 27 Because we reverse the trial court's grant of summary judgment, we decline to address the remaining issues on appeal.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we reverse the trial court's grant of summary judgment and remand for further proceedings.

¶ 30 Reversed and remanded.

Presiding Justice Carter and Justice McDade concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie HARRISON, Defendant-Appellant.
    Appeal No. 3-15-0419
    Appellate Court of Illinois, Third District.
    Opinion filed April 20, 2018
    Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State Appellate Defender's Office, of Chicago, for appellant.
    Karen Donnelly, State's Attorney, of Ottawa (Patrick Delfino, Lawrence M. Bauer, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Willie Harrison, appeals from the third-stage dismissal of his postconviction petition. He argues that his waiver of postconviction counsel was invalid because the trial court failed to admonish him pursuant to Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We affirm.

¶ 2 FACTS

¶ 3 In August 2013, pursuant to a fully negotiated guilty plea, the court sentenced defendant to 16 years' imprisonment for the unlawful possession of a controlled substance with the intent to deliver ( 720 ILCS 570/401(c)(2) (West 2012) ). Although the offense itself is a Class 1 felony, defendant's criminal history required a Class X sentence.

¶ 4 In September 2013, defendant filed a timely motion to withdraw his guilty plea and vacate his sentence. Subsequently, he voluntarily dismissed this motion.

¶ 5 In August 2014, defendant filed a pro se postconviction petition raising various claims of ineffective assistance of trial counsel. The trial court appointed postconviction counsel to represent defendant on his petition.

¶ 6 At an April 2015 hearing, postconviction counsel informed the trial court that defendant wished to proceed pro se on his petition. The court then addressed defendant stating, "This is a crucial stage of your proceedings in post conviction, and I need to know why you think you are capable of handling the complex issues in a post conviction proceeding." Defendant responded that he had been asking postconviction counsel "to do stuff" for seven months but counsel told him he was unable to get in contact with the witnesses defendant asked him to seek out. Counsel then informed the court that defendant "is seeking to have another person admit that the drugs that were found that he was charged with and that he pled guilty to were in fact another person's," but that counsel had spoken with the two people defendant asked him to contact and neither knew where "Mr. Finny" was. Defendant next informed the court that he wished to represent himself on his claims of ineffective assistance of trial counsel because his trial attorney, whose performance he was attacking, was postconviction counsel's boss. The court then announced it would let defendant proceed pro se .

¶ 7 At the June 2015 evidentiary hearing, defendant questioned his trial counsel on the stand. Following arguments, the trial court denied the postconviction petition, finding that defendant failed to meet his burden of showing trial counsel's performance was ineffective.

¶ 8 This appeal followed.

¶ 9 ANALYSIS

¶ 10 Defendant argues that the trial court's failure to properly admonish him pursuant to Faretta , 422 U.S. 806, 95 S.Ct. 2525, rendered his waiver of postconviction counsel invalid. Defendant also asserts that "[a]dmonishments regarding the potential punishment, required by [Illinois Supreme Court] Rule 401(a) [ (eff. July 1, 1984),] in the trial context, should likewise be required in post[ ]conviction proceedings where the defendant faces the possibility of a new trial."

¶ 11 We begin by noting that a postconviction petitioner has a right to represent himself in postconviction proceedings. People v. Heard , 2014 IL App (4th) 120833, ¶ 10, 380 Ill.Dec. 277, 8 N.E.3d 447 (citing 725 ILCS 5/122-4 (West 2010) ). In fact, a court must accept a defendant's knowing and intelligent request to proceed pro se provided that the waiver is clear and unequivocal, not ambiguous. People v. Baez , 241 Ill. 2d 44, 115-116, 349 Ill.Dec. 165, 946 N.E.2d 359 (2011) (citing Faretta , 422 U.S. at 835, 95 S.Ct. 2525, and People v. Burton , 184 Ill. 2d 1, 21, 234 Ill.Dec. 437, 703 N.E.2d 49 (1998) ). In determining whether a defendant has intelligently waived his right to counsel, a court must consider the particular facts and circumstances of defendant's case, including his background, experience, and conduct. People v. Lego , 168 Ill. 2d 561, 564-65, 214 Ill.Dec. 264, 660 N.E.2d 971 (1995). We review a trial court's decision regarding a defendant's waiver of his right to counsel for an abuse of discretion. Baez , 241 Ill. 2d at 116, 349 Ill.Dec. 165, 946 N.E.2d 359. An abuse of discretion exists only where the ruling is "arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court." People v. Hall , 195 Ill. 2d 1, 20, 252 Ill.Dec. 552, 743 N.E.2d 126 (2000). On the other hand, issues regarding a trial court's compliance with Rule 401(a) involve questions of law that we review de novo . People v. Campbell , 224 Ill. 2d 80, 84, 308 Ill.Dec. 730, 862 N.E.2d 933 (2006).

¶ 12 Essentially, defendant's contention on appeal is that his waiver of postconviction counsel was not intelligent because the court did not conduct a Faretta -type inquiry prior to accepting his waiver. In Faretta , the United States Supreme Court declared that in order for a defendant to "competently and intelligently * * * choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Faretta , 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ). This is true because "[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Id.

¶ 13 Defendant recognizes Faretta involved the waiver of a defendant's sixth amendment right to counsel at trial rather than the statutory right to counsel at issue here. Nonetheless, he cites this court's decision in People v. Lesley , 2017 IL App (3d) 140793, 412 Ill.Dec. 602, 76 N.E.3d 42, appeal allowed , 417 Ill.Dec. 841, 89 N.E.3d 760 (Ill. 2017), for the proposition that there is "no distinction between waivers of a statutory right to counsel and a constitutional right to counsel." The issue in Lesley concerned a defendant's waiver of postconviction counsel due to misconduct. Specifically, the defendant in that case refused to cooperate with his appointed postconviction counsel, swore at counsel numerous times, and told him he was "fired." Id. ¶ 6. After repeated status hearings where it was evident defendant refused to cooperate with his counsel, the trial court allowed counsel to withdraw. Id. ¶ 10. Defendant then represented himself pro se at the evidentiary hearing after which the trial court denied his postconviction petition. Id. ¶ 13. On appeal, a divided court held that, in the context of a waiver by conduct, a trial court must comply with Rule 401(a) requirements by explaining to the defendant what is at stake if his conduct continues. Id. ¶ 20. Because the trial court in Lesley failed to warn the defendant he would lose his right to appointed counsel if his misconduct toward counsel continued, the majority declined to construe the defendant's failure to cooperate with appointed counsel as a knowing wavier of his right to postconviction counsel. Id. ¶ 21. Specifically, the majority noted that defendant's conduct, while inappropriate, was not so severe that no warning was necessary or foreseeable and that under the facts presented, a warning would have been appropriate. Id. ¶ 25.

¶ 14 Unlike Lesley , the instant case does not concern a waiver of postconviction counsel due to defendant's conduct. Rather, defendant here specifically requested to represent himself in the postconviction proceedings, and thus, clearly understood he would represent himself going forward if the trial court granted his request. Lesley , even if affirmed by our supreme court, is inapposite.

¶ 15 Defendant next directs our attention to Durocher v. Singletary , 623 So.2d 482, 485 (Fla. 1993), and State v. Chester , 2009-1019, pp. 2-3 (La. 2/10/10), 27 So.3d 837, two out-of-state supreme court cases which found Faretta -type admonishments were required when postconviction petitioners who had been sentenced to death sought to waive their statutory right to counsel. In Durocher , the defendant was sentenced to death three times after pleading guilty to the murders of his former girlfriend and her two children. Durocher , 623 So.2d at 483. Thereafter, a "capital collateral representative" (CCR), who was appointed to represent the defendant pursuant to a Florida statute created to provide for the representation of indigent defendants sentenced to death, filed a petition for writ of habeas corpus on the defendant's behalf, even though defendant had told CCR "no less than 20 times" not to file anything on his behalf. Id. at 482-84. The defendant expressed his wishes that his death sentences be appealed no further and that the court deny the petition filed by CCR. Id. at 484. While the Florida Supreme Court opined that the defendant "presents every indication that he is knowingly, intelligently, and voluntarily waiving his right to collateral proceedings through his adamant refusal to allow CCR to represent him," it also recognized the State's "obligation to assure that the waiver of collateral counsel is knowing, intelligent, and voluntary." Id. at 484-85. Accordingly, the court directed the trial judge to conduct a Faretta -type inquiry of the defendant to ensure that he understood the consequences of waiving collateral counsel and proceedings. Id. at 485. In his specially concurring opinion, Chief Justice Barkett wrote separately to emphasize that additional safeguards, such as Faretta -type inquiries, are essential in collateral proceedings "when an inmate sentenced to death expresses the desire to waive legal representation." Id. at 485-86 (Barkett, C.J., specially concurring).

¶ 16 In Chester , the defendant, who had been convicted of murder and was sentenced to death, filed a motion with the Louisiana Supreme Court to waive counsel and represent himself during postconviction proceedings in the district court. Chester , 2009-1019, at 1. The defendant had not filed the motion in the district court, however, so the supreme court was not in a position to rule on the motion. Id. Instead, the court noted "in principle" that while an indigent death row inmate has a statutory right to appointed counsel, "he may knowingly and intelligently waive that purely statutory right, just as he may waive statutory post[ ]conviction remedies altogether." Id. at 1-2. After citing Durocher and Faretta , the court remanded to the district court with directions that it consider whether the defendant knowingly and intelligently understood the consequences of his decision to proceed pro se . Id. at 2-3.

¶ 17 Initially, we note that the decisions of other states are not binding on this court. People v. Sullivan , 366 Ill. App. 3d 770, 781, 304 Ill.Dec. 677, 853 N.E.2d 754 (2006). Nonetheless, Durocher and Chester are distinguishable on the grounds that those cases involved the waiver of postconviction counsel in capital cases. Here, defendant's pro se representation in his postconviction proceedings-regardless of the quality of his performance or the trial court's ultimate decision to grant or deny the petition-will not result in his death at the State's hands. Moreover, as noted, we review a trial court's decision to allow a petitioner to proceed pro se for an abuse of discretion. Baez , 241 Ill. 2d at 116, 349 Ill.Dec. 165, 946 N.E.2d 359. Based on our review of the record and the relevant authority, we find that neither the provisions of the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 to 122-7 (West 2012) ), nor the facts of this case warrant the adoption of a per se rule requiring Faretta -type admonishments to be given every time a postconviction petitioner chooses to represent himself in the proceedings. The record here clearly shows defendant did not wish to be represented by appointed counsel on his postconviction issues. The court conducted a limited inquiry. The trial court's decision to allow him to do so was neither arbitrary, fanciful, nor unreasonable.

¶ 18 Finally, we reject defendant's contention to the extent that he asserts admonishments similar to those required in the trial context pursuant to Rule 401(a) should be required in postconviction proceedings where the possibility of a new trial exists. Rule 401(a) provides that prior to accepting a defendant's waiver of trial counsel, it must ensure the defendant understands (1) the nature of the charge, (2) the minimum and maximum sentence for the offense, and (3) that the defendant has a right to be represented by counsel and, if indigent, to have counsel appointed for him. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). In People v. Young , 341 Ill. App. 3d 379, 387, 275 Ill.Dec. 237, 792 N.E.2d 468 (2003), the Fourth District held that Rule 401(a) admonishments were not required prior to a postconviction petitioner, who had already been convicted of the offense and sentenced, waiving his right to counsel since he "already knew everything a Rule 401(a) admonishment would have told him." In his reply brief, petitioner cites People v. Bahrs , 2013 IL App (4th) 110903, 370 Ill.Dec. 575, 988 N.E.2d 773, in support of his contention that Young 's logic is flawed since Rule "401(a) still applies to those who seek to waive counsel for post[ ]trial proceedings following a conviction." We note, however, the defendant in Bahrs dismissed his appointed counsel prior to his sentencing hearing, not in postconviction proceedings following the imposition of his sentence. Thus, in Bahrs , a sentencing admonishment, as provided by Rule 401(a), was applicable. Here, as in Young , defendant had already been convicted and sentenced and, thus, knew all that Rule 401(a) admonishments would have told him. Furthermore, we fail to see any prejudice to defendant where, as here, the trial court denied his postconviction petition. There will be no new trial or sentencing.

¶ 19 CONCLUSION

¶ 20 For the foregoing reasons, we affirm the judgment of circuit court of La Salle County.

¶ 21 Affirmed.

Justices Holdridge and Lytton concurred in the judgment and opinion.


text:
    IN RE C.H., a Minor,
    (The People of the State of Illinois, Petitioner-Appellee, v. Stephanie H., Bradley P., and Whom It May Concern, Respondents,
    (Joseph K. and Hattie K., Appellants)).
    Appeal No. 3-18-0089
    Appellate Court of Illinois, Third District.
    Opinion filed July 11, 2018
    Charles Rohde, of Law Offices of Rohde & Infelise, P.C., of Addison, for appellants.
    James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 In the course of juvenile proceedings concerning C.H., the trial court made a finding it was not in the best interest of or appropriate with the permanency goal that C.H. be returned to the foster home of appellants Joseph and Hattie K. This ruling resulted in the dismissal of the administrative appeal Joseph and Hattie had filed with the Department of Children and Family Services to contest the removal of C.H. from their care. Joseph and Hattie moved to intervene and to be heard in juvenile proceedings and moved to vacate the trial court's finding. The trial court granted them a right to be heard but denied their motions to intervene and to vacate. They appealed. The State moved to dismiss the appeal based on lack of standing. We find Joseph and Hattie lack standing and dismiss the appeal.

¶ 2 FACTS

¶ 3 On January 2, 2016, C.H., who was born November 11, 2015, was removed from the custody of her mother and placed with Joseph and Hattie K., licensed foster parents with the Department of Children and Family Services (DCFS). Reports filed in the juvenile proceedings by the DCFS caseworker indicated C.H. was doing well in her foster placement and had bonded with Joseph and Hattie. On April 19, 2017, C.H. and another unrelated foster child were removed from the foster home based on allegations of animal cruelty concerning the family dog.

¶ 4 Joseph and Hattie sought a placement review appeal with DCFS, where the decision was made that C.H. should remain out of their foster home. They filed an administrative appeal of the placement decision. DCFS also began an investigation regarding Joseph and Hattie's foster license and informed them the license was going to be revoked. Joseph and Hattie appealed the revocation decision and sought to join the placement appeal with it. DCFS thereafter determined not to revoke their foster license. Joseph and Hattie scheduled the administrative appeal for November 17, 2017.

¶ 5 A DCFS report indicated that C.H. was adjusting well to her new foster home and bonding with the foster family, who were willing to adopt her. The State filed a motion to terminate the parental rights of C.H.'s parents, and based on the motion, the court found C.H.'s parents unfit and that it was in C.H.'s best interests that their parental rights be terminated. On November 17, 2017, during a status hearing in the juvenile proceedings, the court found that a return of C.H. to Joseph and Hattie was not in her best interest or appropriate to achieve the permanency goal of adoption. The order was immediately transmitted to the administrative hearing officer, who dismissed the administrative appeal in the middle of the hearing per the administrative rules. See 89 Ill. Adm. Code 337.110(a)(4) (2016).

¶ 6 On December 4, 2017, Joseph and Hattie moved to be heard or to intervene in the juvenile proceedings and moved to vacate the November 17, 2017, order. Joseph and Hattie were allowed to argue their positions. The trial court denied Joseph and Hattie's motion to vacate, finding the November 17 order stood and denied their motion to intervene. They timely appealed. The State sought to dismiss the appeal. We took the State's motion with the case.

¶ 7 ANALYSIS

¶ 8 On appeal, Joseph and Hattie argue the trial court's ruling violated their rights as foster parents. We first address the State's motion to dismiss the appeal. The State argues that Joseph and Hattie lack standing to maintain this appeal because they were not parties in the proceedings below.

¶ 9 Any party or an attorney representing a party may appeal an adverse final decision entered by the trial court. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). Standing requires some injury to a legally recognized right. Greer v. Illinois Housing Development Authority , 122 Ill. 2d 462, 492, 120 Ill.Dec. 531, 524 N.E.2d 561 (1988). "The essence of the inquiry concerning standing is whether the litigant * * * is entitled to have the court decide the merits of a dispute or a particular issue." Powell v. Dean Foods Co. , 2012 IL 111714, ¶ 36, 358 Ill.Dec. 333, 965 N.E.2d 404. To determine standing, the court must decide whether the relief granted would benefit the party. In re Nitz , 317 Ill. App. 3d 119, 122, 250 Ill.Dec. 632, 739 N.E.2d 93 (2000). We review de novo whether a party has standing. Powell , 2012 IL 111714, ¶ 35, 358 Ill.Dec. 333, 965 N.E.2d 404.

¶ 10 Former foster parents have a right to be heard in the juvenile proceedings but they do not become parties to the proceedings. 705 ILCS 405/1-5(2)(a) (West 2016). Necessary parties to a juvenile proceeding include parents or legal guardians but not foster parents. In re A.H. , 195 Ill. 2d 408, 424, 254 Ill.Dec. 737, 748 N.E.2d 183 (2001).

¶ 11 As former foster parents, Joseph and Hattie were entitled to a right to be heard in the juvenile proceedings, which the trial court granted them. They were provided the opportunity and argued their motion to vacate the trial court's November 17 order which ruled against returning C.H. to Joseph and Hattie's home. The right to be heard does not afford Joseph and Hattie's party status or the right to appeal the trial court's ruling. See Nitz , 317 Ill. App. 3d at 122, 250 Ill.Dec. 632, 739 N.E.2d 93 ("any party to a case may seek appellate review from a final judgment that is adverse to his interests"); Vece v. De Biase , 31 Ill. 2d 542, 545, 202 N.E.2d 482 (1964) (nonparty to the record must establish his or her interest in the proceeding as a prerequisite to an appeal).

¶ 12 Nonparties may have standing where they have "a direct, immediate and substantial interest in the subject matter of the litigation which would be prejudiced by the judgment or benefit by its reversal." St. Mary of Nazareth Hospital v. Kuczaj , 174 Ill. App. 3d 268, 271, 123 Ill.Dec. 745, 528 N.E.2d 290 (1988). A nonparty is prejudiced where his legal right is affected by the challenged order. McDonald's Corp. v. Blotnik , 28 Ill. App. 3d 732, 734, 328 N.E.2d 897 (1975). A " 'speculative, theoretical, inconsequential or remote' " interest is insufficient to afford a party appeal rights. Board of Trustees of Community College District No. 508 v. Rosewell , 262 Ill. App. 3d 938, 955, 200 Ill.Dec. 74, 635 N.E.2d 413 (1992) (quoting In re Johnson , 53 Ill. App. 3d 921, 923, 11 Ill.Dec. 616, 369 N.E.2d 70 (1977) ).

¶ 13 Joseph and Hattie maintain they have standing even as nonparties to the trial court action because they have a direct, immediate and substantial interest in the placement of C.H. in their foster home. We disagree. They do not have any rights to continue to foster C.H. Benz v. Department of Children & Family Services , 2015 IL App (1st) 130414, ¶ 38, 389 Ill.Dec. 695, 27 N.E.3d 187 (foster parents do not have a liberty interest in their foster children (citing In re A.H. , 195 Ill. 2d at 423, 254 Ill.Dec. 737, 748 N.E.2d 183 ) ); Johnson v. Burnett , 182 Ill. App. 3d 574, 582, 131 Ill.Dec. 517, 538 N.E.2d 892 (1989) (foster parents do not have constitutionally protected liberty interests in the continued care of foster children). Because they have no legal right to foster C.H., Joseph and Hattie cannot demonstrate any prejudice they would suffer as a result of the trial court's ruling. Their foster license was back in good standing and their home was available to shelter other foster children. As former foster parents, they do not have a direct, immediate or substantial interest in the juvenile proceeding concerning C.H., despite their desire for her to return to their home.

¶ 14 Joseph and Hattie's reliance on In re C.C. , 2011 IL 111795, 355 Ill.Dec. 25, 959 N.E.2d 53, is misplaced. The court there did not reach the merits of a case by a previous foster parent but instead considered the status of the children's former guardian, from whom the children had been removed due to neglect. Id. ¶ 23. At issue was the former guardian's status in the juvenile proceedings. Id. ¶ 29. The reviewing court acknowledged the former guardian's right to be heard based on her prior status but concluded that she was not a party to the proceedings. Id. ¶ 35. Joseph and Hattie also rely on the Foster Parent Law (20 ILCS 520/1 et seq. (West 2016) ), which provides them certain rights as foster parents. Those rights include the right to an administrative appeal. 20 ILCS 520/115(13) (West 2016). We acknowledge the trial court's ruling resulted in a dismissal of the administrative appeal, but the appeal of that decision is not before us. We find Joseph and Hattie lack standing to bring this appeal and we dismiss it on that basis.

¶ 15 CONCLUSION

¶ 16 For the foregoing reasons, the appeal is dismissed.

¶ 17 Appeal dismissed.

Justices McDade and Wright concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dameko S. BRICKHOUSE, Defendant-Appellant.
    Appeal No. 3-15-0807
    Appellate Court of Illinois, Third District.
    Opinion filed July 20, 2018
    Michael J. Pelletier, Patricia Mysza, and Yasaman Hannah Navai, of State Appellate Defender's Office, of Chicago, for appellant.
    Jim Rowe, State's Attorney, of Kankakee (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Dameko S. Brickhouse, was convicted of two counts of armed robbery ( 720 ILCS 5/18-2(a)(2) (West 2008) ) and was sentenced to two concurrent terms of 30 years in prison. On direct appeal, defendant's convictions and sentences were affirmed. People v. Brickhouse , 2011 IL App (3d) 100289-U, ¶ 2, 2011 WL 10468139. Defendant filed a postconviction petition, alleging that he was denied ineffective assistance of trial counsel because trial counsel failed to file a motion to suppress defendant's statements to police. After a third-stage evidentiary hearing, the trial court denied defendant's postconviction petition. Defendant appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 In July 2008, defendant was charged with two counts of armed robbery. The charging instrument alleged that defendant, while carrying a handgun, knowingly took money from the person or presence of Rochelle Hicks (count I) and Jeffrey Hicks (count II) by the use, or threatened use, of force.

¶ 4 In May 2009, defendant's case proceeded to a jury trial. The evidence presented at the trial can be summarized as follows. Rochelle Hicks testified that on July 1, 2008, she and her husband, Jeffrey Hicks, went to a credit union or bank in Bourbonnais, Illinois, where Jeffrey withdrew $1000 from his account to pay bills. Jeffrey gave $500 to Rochelle and kept the remaining $500 for himself. Thereafter, Rochelle and Jeffrey went to a currency exchange in Kankakee, Illinois, so that Jeffrey could pay the electric bill and Rochelle could pay the telephone bill. While in the currency exchange, Rochelle saw defendant and Curtis Phillips walk past the building. Rochelle had known defendant for approximately three years, through her uncle, but had never talked to defendant and had known Curtis for several years. According to Rochelle, on the date of the robbery, defendant was wearing a white T-shirt, blue jeans, and a black White Sox hat.

¶ 5 When Rochelle and Jeffrey left the currency exchange, they started walking toward Jeffrey's sister's house. As Rochelle and Jeffrey were walking down an alley behind some houses, they ran into Curtis, who was alone at the time. Jeffrey and Curtis had a brief conversation. After the conversation ended, Curtis went on his way, and Jeffrey and Rochelle continued down the alley. When they got to about the middle of the alley, defendant jumped out from between two garages with a small silver handgun, which Rochelle also described as a "silver caliber handgun." Defendant pointed the gun at Rochelle and Jeffrey and told them to give him all of their money before he killed them. Jeffrey told Rochelle to give her money to defendant, and Rochelle did so. Jeffrey did not give defendant the remaining $500 that he had in his possession. After defendant received the money, he told Rochelle and Jeffrey to walk away. As they did so, defendant ran up the alley. When Rochelle and Jeffrey got to Jeffrey's sister's house, Rochelle called the police.

¶ 6 At the police station, Rochelle identified defendant from a photographic lineup. Rochelle told the police that defendant had a short silver gun. The police showed Rochelle a photograph of a gun, but Rochelle stated that the gun in the picture was not the gun used in the robbery. Rochelle also identified defendant's hat from a police photograph.

¶ 7 On cross-examination, Rochelle admitted that she received social security payments because she had a learning disability. Additionally, Rochelle admitted that she did not know what a "silver caliber handgun" meant, but Jeffrey had told her the name of the gun.

¶ 8 Jeffrey Hicks testified, similar to Rochelle, that on July 1, 2008, the couple went to a credit union to withdraw some money and then to a currency exchange to pay some bills. After leaving the currency exchange, Jeffrey and Rochelle were walking into an alley to take a shortcut to Jeffrey's sister's house, when they were approached by Curtis. Jeffrey and Curtis had a brief conversation, and then Curtis left and went in the other direction. As Jeffrey and Rochelle continued down the alley, they were confronted by defendant. Defendant jumped out of the bushes, demanded money, and threatened to shoot the couple with a silver-colored handgun. Jeffrey thought that the gun was a .38 caliber. Jeffrey told Rochelle to give her money to defendant, and Rochelle complied. Defendant directed Jeffrey and Rochelle to walk away. As they did so, defendant ran in the opposite direction.

¶ 9 Later, Jeffrey told the police that the assailant wore a black White Sox hat, white T-shirt, and blue jeans. Jeffrey identified defendant from a photographic lineup. On cross-examination, Jeffrey remembered telling the police that the assailant had braids in his hair.

¶ 10 Curtis Phillips testified that he knew defendant, Rochelle, and Jeffrey. On the morning of the robbery, Curtis was walking to the hospital to visit his girlfriend when he met up with defendant on the street. Defendant was wearing jeans and a T-shirt at the time. Curtis and defendant walked together for a while, went past the currency exchange, and then split up and went in their own directions. As they split up, defendant told Curtis that he was "trying to go and hustle up him some money," which Curtis took to mean that defendant was going to try to find some work or some money. Curtis did not see defendant with a gun that day.

¶ 11 Shortly after Curtis and defendant separated, Curtis saw Rochelle and Jeffrey walking behind him. Curtis spoke to Jeffrey briefly and then went on his way. About four or five minutes later, as Curtis was crossing the street, he heard Jeffrey yelling. Curtis looked back and saw Jeffrey, Rochelle, and some other people standing on the street corner calling for the police. Curtis tried to find out what was going on, but the police officer told Curtis to move along. Rochelle and Jeffrey told Curtis that "Dameko" had robbed them. Having been told to move along, Curtis continued on his way to the hospital.

¶ 12 When Curtis returned home from the hospital, he found his uncle and defendant at his house. Curtis's uncle had a construction business. Defendant appeared to have been working, had different clothes on, and had putty on his hands. The police showed up a short time later and took Curtis to the police station, where he identified defendant from a photographic lineup as the person who was with him earlier that day in front of the currency exchange.

¶ 13 After Curtis returned home from the police station, he received a phone call from a person identifying himself as defendant. The person asked Curtis to "see if they want the money back * * * so they can drop the charges." About an hour or two later, Curtis had another conversation with defendant. Defendant asked Curtis to talk to Rochelle to see if she would take the money back so that the charges could be dropped. Curtis did not contact Rochelle about the matter, however, because he did not want to get involved.

¶ 14 When asked on the witness stand about whether defendant had braids in his hair on the date of the robbery, Curtis testified that defendant always had his hair cut as it was in court and that he did not remember defendant having braids. Upon further questioning, Curtis indicated that he cut defendant's hair and that he knew for a fact that defendant did not have braids.

¶ 15 Detective Tim Kreissler testified that on the date of the armed robbery, later in the afternoon, he conducted an audio- and video-recorded interview with defendant. Before the interview began, Kreissler read defendant a Miranda form that explained defendant his rights. Defendant indicated that he understood his rights and signed the Miranda form.

¶ 16 During Kreissler's testimony, the State introduced the audio and video recording of defendant's interview. Shortly after the start of the recording, a clunk or bang could be heard, the video cut out, and only the audio was available. As the interview continued, Kreissler obtained defendant's name and some background information. Kreissler asked defendant for permission to record the interview. Defendant stated that he did not do anything wrong and told Kreissler that Kreissler could call defendant's parole officer.

Kreissler again asked for consent to record the interview. Defendant consented but then stated to Kreissler, "I can't ask for a lawyer?" The following conversation ensued:

"KREISSLER: Well, we'll get to that point, but um we're not at that point yet. Right now we're just getting over whether we're gonna, you know, audio and video, so just sign there-you said, yeah, we can audio-video it-and then we'll read you your rights, which we'll get to that point [inaudible].
DEFENDANT: Read me my rights? I ain't did nothing.
KREISSLER: Well, you just said, you know, can you have your lawyer present. If you didn't-[pause].
Dameko, put your initials there, where it says that, yes, we can audio and video it."

Kreissler then read defendant his Miranda rights, including the warning that defendant had the right to an attorney and that one would be provided for him if he could not afford one. In total, about 30 seconds had passed from the point where defendant had made the question or comment about a lawyer and the point where Kreissler had read defendant his Miranda rights. After the statement of each right, Kreissler asked defendant if he understood the right, and defendant indicated affirmatively. Kreissler confirmed that defendant could read and then told defendant that he could read the Miranda rights form again if he wanted to do so. Defendant placed his initials next to the statement of each right and then signed the form without saying anything further about a lawyer.

¶ 17 After the rights form had been completed, Kreissler stepped out of the interview room for a moment, realized that the video had cut out, and then he and another person came back into the interview room and spent a few minutes fixing the video. The interview proceeded at that point and was both audio- and video-recorded. During the remainder of the first interview, defendant denied that he had committed the armed robbery. Defendant told Kreissler that at the time of the offense, he was doing drywall work with Curtis's uncle at a house near the intersection of Cottage Avenue and Chestnut Street. At one point in the interview, Kreissler made comments to defendant about working and about there being some type of stains or marks on defendant's person. Kreissler was asked further about those comments during his testimony at trial and stated that at the time of the interview, defendant had plaster or drywall material on his pants and on his forearms. The stains or marks that Kreissler was referring to in his testimony were clearly visible on defendant's person in the video.

¶ 18 Later in the day on July 1, 2008, Kreissler conducted a search of defendant's bedroom. Inside the bedroom, Kreissler found a black White Sox hat, a black BB gun, and five $20 bills. Kreissler and another detective photographed the items that had been discovered.

¶ 19 On July 2, 2008, Kreissler interviewed defendant a second time. Defendant refused to allow the interview to be recorded but signed a Miranda waiver form and agreed to speak to Kreissler. During the interview, defendant allegedly told Kreissler he was sorry that he had robbed Rochelle and Jeffrey. Defendant indicated that he would give the money back and turn the gun over to the police if the charges were dropped. Kreissler responded that he could not make any kind of deal like that with defendant.

¶ 20 On cross-examination, defense counsel questioned Kreissler thoroughly about inconsistencies in the victims' statements and in their descriptions of the person who had robbed them; about Kreissler's failure to follow standard procedure, to reduce defendant's second statement to writing, and to have defendant read and sign a written copy of his second statement; about the lack of an investigation of the scene of the robbery and the lack of physical evidence (the gun); and about the fact that Curtis was released without charge, even though he had lied to police and even though Kreissler and the victims suspected that Curtis may have been involved in the armed robberies.

¶ 21 Police officer Robin Passwater testified that he attempted to interview defendant a third time on July 3, 2008, about the location of the gun used in the robbery. Defendant asked Passwater to reduce the charges in exchange for his signature on the Miranda waiver form. Passwater told defendant that only the State's Attorney could change the charges. Defendant indicated that he could retrieve the gun but did not tell Passwater where the gun was located. Ultimately, defendant refused to sign the Miranda waiver form.

¶ 22 On cross-examination, defense counsel questioned Passwater extensively about Passwater's conversation with defendant, about omissions in Passwater's report relative to that conversation; about Passwater's failure to recover the gun used in the instant offenses despite defendant's alleged claim that he knew where the gun was located or could obtain the gun, about Passwater's failure to reduce defendant's third statement to writing and to have defendant read and sign a printed copy of that statement, and about Passwater's failure to recommend that the prosecution negotiate with defendant to try to get the gun used in the instant offenses off the street.

¶ 23 After being duly admonished, defendant elected not to testify at the trial and presented no further evidence.

¶ 24 Following closing arguments, the case proceeded to deliberations. During the deliberations, the jury asked two questions. In one of the questions, the jury requested, and was allowed to review, several items, including defendant's audio- and video-recorded interview. In the other question, the jury requested to review the police reports of Kreissler and Passwater. The trial court denied that request. After about two hours of deliberations (including any time spent reviewing the items requested), the jury found defendant guilty of both counts of armed robbery.

¶ 25 In June 2009, defense counsel filed a motion for new trial, which was subsequently amended. The motion alleged, among other things, that a new trial was warranted because defendant believed that counsel had made a mistake in failing to move to suppress defendant's statements to the police. The following month, defendant sent an ex parte letter to the court, which made various allegations of ineffective assistance of trial counsel.

¶ 26 At a later hearing on the motion for new trial, the trial court read defendant's letter into the record as the court inquired into defendant's claims of ineffective assistance. The following conversation ensued:

"THE COURT: * * * The second issue is my lawyer also failed to suppress the statement of the police officer's statement and testimony saying that I called Curtis Phillip[s] to get the gun back used in the crime, which even Phillips denied himself, and that I confessed to committing this offense because it is hearsay. And there is absolutely no evidence corroborating any of this. All right.
How about the motion to suppress his statement?
[DEFENSE COUNSEL]: Okay. I did not do a motion to suppress any of the three different statements that were-were done. And, specifically, the two that he's talking about were the further statements where the police went back to him and took-and talked to him and wrote down what they said he said. They were not actual statements made by him and signed. They were not video statements. So at that point we simply had police officers' reports saying we went back and talked to him and this is what he said. And I did not attempt to suppress any of those statements.
THE COURT: Is there a reason why? I guess I-
[DEFENSE COUNSEL]: I guess because they appeared to be voluntary on his part. In other words, Mirandized but not-not to the extent of his first statement, which was voluntarily Mirandized and agreed to videotaping. Then the second one he didn't agree to the videotaping. And the third one he kind of said, look, I don't want to talk to you guys anymore. Then they wrote that down.
They appeared to be more or less those two statements in the nature of the police reports. There wasn't a sup-an actual statement of the defendant to suppress such as a written statement that we believed he had not made or that was not Mirandized. And I did not attempt to suppress those.
THE COURT: Okay. Basically because you didn't think they were statements that would-could be suppressed. Is that what you're saying?
[DEFENSE COUNSEL]: I didn't believe there was a basis to suppress them at the time prior to it going to trial.
THE COURT: And those are the last two. Is that right, versus the first one?
[DEFENSE COUNSEL]: Right, the last two. I don't know that there was-if-if-if he's claiming a failure to suppress the first one, I-
* * *
Judge, if he-if he has a problem with that, if this encompasses all of the them, the reason I didn't attempt to do that is because, one, there was a consent; and, two, I actually thought it was probably to my client's benefit for the jury to see that statement. Because in it he was saying he didn't do it, consistently giving places, times, and was covered with plaster, dust and material from the job that he claimed he had been at. And I believed it was as exculpatory as it was inculpatory."

¶ 27 At the conclusion of the hearing (on a subsequent date), after having had an opportunity to review the transcripts, the trial court denied the motion for new trial, stating that it did "not find there [was] any neglect here based on the evidence presented in this case." In response to a question by defendant and some further discussion, the trial court commented:

"And in all the cases it's not the defendant that makes the decision on a motion to suppress, it's always the defense attorney. And I'm assuming you [defense counsel] had a reason for not doing that.
Last time you said you just didn't believe there was a basis for it I believe, as I look at my notes here. You said you didn't attempt to suppress the first one because it was to [defendant's] benefit, as [the prosecutor] has responded. [Defendant] was saying he couldn't have done this crime because he was painting with this Alfred Phillips and when he was arrested he had on clothing that looked like there was plaster or paint spots. And as to the other two statements you did not believe there was a basis to suppress and I believe that is trial strategy. And that's up to you to do."

¶ 28 Following a sentencing hearing, the trial court sentenced defendant to two concurrent terms of 30 years in prison. We affirmed defendant's convictions and sentences on direct appeal. Brickhouse , 2011 IL App (3d) 100289-U, ¶ 2.

¶ 29 In August 2011, defendant filed a pro se postconviction petition. In the petition, defendant alleged, among other things, that he received ineffective assistance of trial counsel when counsel failed to move to suppress his statements to police. The trial court summarily dismissed the petition in the first stage of review. We reversed that decision on appeal and remanded the case for further proceedings on defendant's postconviction petition. People v. Brickhouse , 2013 IL App (3d) 110584-U, ¶ 2, 2013 WL 4726891. One justice dissented in that decision. Id. ¶¶ 34-38 (Schmidt, J., dissenting).

¶ 30 On remand in the trial court, defendant was appointed an attorney to represent him on the postconviction petition. The attorney amended the petition, and the petition was docketed for second-stage proceedings. The State filed a motion to dismiss the petition, which the trial court later denied. In so doing, the trial court stated:

"As I reviewed the people's motion to dismiss, basically cited the dissent in the appeal which reversed my summary dismissal of the PC. And I have to look at the second stage whether there's some showing-a substantial showing of constitutional violation. I'm going to let it go to the third stage because you cited-not that I disagree with you, but I can't go with the dissent at this point."

After denying the State's motion to dismiss, the trial court scheduled the case for a third-stage evidentiary hearing on defendant's postconviction petition.

¶ 31 At the evidentiary hearing, the testimonies of defendant, Kreissler, and defense counsel were presented. Defendant testified that he was asking for an attorney when he made the statement to officer Kreissler about a lawyer, but the police did not call an attorney for him. Defendant continued to talk to the police after that point. On cross-examination, when defendant was questioned further about the matter, he stated:

"I asked him [Kreissler] about a lawyer. I thought he was gonna go get a lawyer or stop the interview like what he supposed to do but when he didn't, I didn't want-he the police. I didn't want to do anything wrong."

Defendant acknowledged, however, that Kreissler told defendant that they would get to that and that Kreissler had defendant read and sign a paper that had defendant's rights listed on it, including the right to have an attorney present. Defendant acknowledged further that after he was read his Miranda rights, he never stated that he wanted an attorney. According to defendant, he did not do so because he "had already asked [Kreissler]."

¶ 32 Police officer Kreissler testified that he had been a Kankakee police officer for 13 years and had been trained in interrogation. Kreissler had learned from his training that after a suspect was advised of his Miranda rights, if the suspect said anything about an attorney, the interview was to be terminated immediately. When Kreissler was interviewing a suspect, he followed a set procedure, starting with obtaining written consent from the suspect to have the interview recorded. In this particular case, at the outset of the first interview, as Kreissler was asking defendant for consent to record the interview, defendant made the statement to Kreissler about a lawyer. Kreissler interpreted defendant's statement to mean that defendant was not sure of his rights and that he wanted an explanation of his rights. Kreissler told defendant that they would get to that. The next thing that Kreissler did was "[get] to that" by reading defendant the Miranda warning form. Kreissler did not interpret defendant's statement as a request for an attorney and confirmed that, after he advised defendant of his Miranda rights during the first interview, defendant did not request an attorney.

¶ 33 Defense counsel testified that she remembered that defendant had made a claim or claims of ineffective assistance of counsel against her but did not remember what they were about and did not remember anything about her decision not to file a motion to suppress. At one point, when defendant's postconviction attorney objected to the State's questioning of defendant's trial counsel as leading, the trial court stated: "That's trial strategy. Overruled. It's a [p]ost-conviction."

¶ 34 At the conclusion of the evidentiary hearing on the postconviction petition, the trial court took the case under advisement. The trial court later issued a written decision denying defendant's petition for postconviction relief. In doing so, the trial court found that defendant's statement or question about a lawyer was ambiguous and noted the context in which the statement was made-that the statement was made during the officer's attempt to obtain consent to record the interview and prior to defendant being read his Miranda rights. The trial court also noted that defendant's trial counsel had testified that the decision not to file a motion to suppress the recorded statement was made on the basis of trial strategy because the recorded statement corroborated defendant's alibi (defendant had dry wall on his hands, arms, and clothing). The trial court pointed out that defendant never confessed during the recorded statement. The trial court also found that there was no prejudice to defendant from trial counsel's failure to file a motion to suppress because, had the motion been filed, it would have been denied. Defendant appealed.

¶ 35 ANALYSIS

¶ 36 On appeal, defendant argues that the trial court erred in denying his postconviction petition after a third-stage evidentiary hearing. Defendant asserts that the petition should have been granted because defendant established a substantial deprivation of his constitutional rights in that his trial counsel provided ineffective assistance when she failed to move to suppress his statements to the police. Defendant asserts further that his second and third statements were highly incriminating, that there was no tactical or strategic reason for not moving to suppress the statements, that he was likely to prevail on the motion to suppress because the interviewing officer proceeded to question defendant after defendant invoked his right to an attorney, and that the result of his trial would have likely been different if his statements had been suppressed. Defendant asks, therefore, that we reverse the trial court's ruling, that we grant his petition for postconviction relief, and that we remand this case for a new trial on the underlying criminal charges before a different trial judge.

¶ 37 The State argues that the trial court's ruling was proper and should be upheld. The State asserts that defendant did not make an unequivocal request for an attorney during the initial police interview; that the police officer did not violate defendant's Miranda rights by proceeding to interview defendant after that point; that trial counsel was not deficient in failing to file a motion to suppress; and that any alleged error that occurred did not affect the outcome of this case because the evidence of defendant's guilt, even without defendant's statements, was overwhelming. The State asks, therefore, that we affirm the trial court's denial of defendant's postconviction petition.

¶ 38 The Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2010) ) provides a three-stage process for the adjudication of postconviction petitions. People v. Pendleton , 223 Ill. 2d 458, 471-72, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). In the third stage of the process, the trial court conducts an evidentiary hearing, and the defendant must show by a preponderance of the evidence that he suffered a substantial violation of his constitutional rights in the proceedings that produced the conviction or sentence being challenged. See id. at 472-73, 308 Ill.Dec. 434, 861 N.E.2d 999 ; People v. Williams , 2017 IL App (1st) 152021, ¶ 22, 414 Ill.Dec. 628, 80 N.E.3d 771. In a third-stage evidentiary hearing, the trial court acts as the finder of fact and resolves any conflicts in the evidence, determines the credibility of witnesses, and decides the amount of weight to be given to the testimony and other evidence presented. See Williams , 2017 IL App (1st) 152021, ¶ 22, 414 Ill.Dec. 628, 80 N.E.3d 771. When a petition is advanced to a third-stage evidentiary hearing, where fact-finding and credibility determinations are involved, we will not reverse the trial court's ruling unless it is manifestly erroneous; that is, unless it is against the manifest weight of the evidence. See Pendleton , 223 Ill. 2d at 473, 308 Ill.Dec. 434, 861 N.E.2d 999 ; People v. Rapp , 343 Ill. App. 3d 414, 417, 278 Ill.Dec. 143, 797 N.E.2d 738 (2003). A ruling is against the manifest weight of the evidence only if the opposite conclusion is clearly evident from the record or if the ruling itself is unreasonable, arbitrary, or not based on the evidence presented. Best v. Best , 223 Ill. 2d 342, 350, 307 Ill.Dec. 586, 860 N.E.2d 240 (2006).

¶ 39 In this particular case, defendant's postconviction claim of error was based upon trial counsel's alleged ineffective assistance in failing to file a motion to suppress defendant's statements to police. A claim of ineffective assistance of counsel is analyzed under the two-pronged, performance-prejudice test established in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Patterson , 217 Ill. 2d 407, 438, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005). To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that defense counsel's performance was deficient and (2) that the deficient performance prejudiced the defendant to the extent that he was deprived of a fair proceeding. Id. A defendant's failure to satisfy either prong of the Strickland test prevents a finding of ineffective assistance of counsel. Id. In reviewing a claim of ineffective assistance of counsel, a court must consider defense counsel's performance as a whole and not merely focus upon isolated incidents of conduct. See People v. Cloyd , 152 Ill. App. 3d 50, 57, 105 Ill.Dec. 257, 504 N.E.2d 126 (1987). A strong presumption exists that defense counsel's conduct was within the wide range of reasonable professional assistance and that all decisions were made in the exercise of reasonable professional judgment. Id. at 56-57, 105 Ill.Dec. 257, 504 N.E.2d 126 ; People v. Martin , 236 Ill. App. 3d 112, 121, 177 Ill.Dec. 533, 603 N.E.2d 603 (1992). In addition, matters of trial strategy will generally not support a claim of ineffective assistance of counsel, even if defense counsel made a mistake in trial strategy or tactics or made an error in judgment. Patterson , 217 Ill. 2d at 441, 299 Ill.Dec. 157, 841 N.E.2d 889 ; People v. Perry , 224 Ill. 2d 312, 355, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). "Only if counsel's trial strategy is so unsound that he entirely fails to conduct meaningful adversarial testing of the State's case will ineffective assistance of counsel be found." Perry , 224 Ill. 2d at 355-56, 309 Ill.Dec. 330, 864 N.E.2d 196.

¶ 40 More specifically as to motions to suppress, the decision of whether to file a motion to suppress is generally a matter of trial strategy and not subject to a claim of ineffective assistance of counsel. See Martin , 236 Ill. App. 3d at 121, 177 Ill.Dec. 533, 603 N.E.2d 603. In order to establish prejudice resulting from defense counsel's failure to file a motion to suppress, a defendant must show a reasonable probability that (1) the motion to suppress would have been granted and (2) the outcome of the trial would have been different had the evidence been suppressed. Patterson , 217 Ill. 2d at 438, 299 Ill.Dec. 157, 841 N.E.2d 889. In other words, defense counsel's failure to file a motion to suppress does not establish incompetent representation, if the motion would have been futile. Id. Although the failure to file a motion to suppress is generally not a basis for an ineffective assistance of counsel claim, the failure to file a motion to suppress statements may constitute ineffective assistance of counsel if there is some indication that the statements were truly involuntary. Martin , 236 Ill. App. 3d at 121-22, 177 Ill.Dec. 533, 603 N.E.2d 603.

¶ 41 Defendant's ineffective assistance of counsel claim in the instant case was based upon defendant's contention that had trial counsel filed a motion to suppress, defendant's incriminating statements to police would have been suppressed because the statements were taken in violation of defendant's right to counsel in that they were taken during custodial interrogation after defendant had clearly invoked his right to an attorney. It is well established that to protect an accused's fifth amendment right against self incrimination, the police must advise a criminal suspect who is subject to custodial interrogation of his rights under the fifth and fourteenth amendments-the Miranda rights or Miranda warnings-before questioning the suspect about alleged wrongdoing. See Miranda v. Arizona , 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; People v. Winsett , 153 Ill. 2d 335, 348, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992). After being read the Miranda warnings, if the suspect indicates that he wishes to remain silent, the police must end the interrogation. Miranda , 384 U.S. at 445, 86 S.Ct. 1602 ; Winsett , 153 Ill. 2d at 349, 180 Ill.Dec. 109, 606 N.E.2d 1186. If the suspect invokes his right to counsel in response to the Miranda warnings, the police must stop the interrogation until an attorney is present and may not reapproach the suspect for further interrogation until counsel has been made available to the suspect. Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ; Miranda , 384 U.S. at 444-45, 86 S.Ct. 1602 ; Winsett , 153 Ill. 2d at 349, 180 Ill.Dec. 109, 606 N.E.2d 1186. If the police later initiate communication with the suspect in the absence of counsel (assuming there has been no break in custody), any statements made by the suspect are presumed to be involuntary and are inadmissible as substantive evidence at trial. Winsett , 153 Ill. 2d at 349, 180 Ill.Dec. 109, 606 N.E.2d 1186. In addition, any waiver of the right to counsel given by a suspect in a further discussion initiated by the police is presumed to be invalid, and statements obtained pursuant to such a waiver are inadmissible in the prosecution's case in chief. Id. at 350, 180 Ill.Dec. 109, 606 N.E.2d 1186. The purpose of that rule is to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights. Id.

¶ 42 In applying the above legal principles, a court must determine whether an accused-now a defendant-clearly invoked his right to counsel. The test is an objective one. People v. Schuning , 399 Ill. App. 3d 1073, 1082, 340 Ill.Dec. 409, 928 N.E.2d 128 (2010). At a minimum, to invoke the right to counsel, a defendant must articulate his desire for an attorney to the police in a clear enough manner-free from indecision or double meaning-that a reasonable officer under the circumstances would understand the statement to be a request for an attorney. People v. Harris , 2012 IL App (1st) 100678, ¶ 69, 364 Ill.Dec. 902, 977 N.E.2d 811. If a defendant's alleged request for an attorney is ambiguous or equivocal such that a reasonable officer under the circumstances would understand only that the defendant might be invoking the right to counsel, the police are not required to stop questioning the defendant. Schuning , 399 Ill. App. 3d at 1082, 340 Ill.Dec. 409, 928 N.E.2d 128. Furthermore, although there are no specific words that a defendant must use to invoke the right to counsel, the mere mention of a lawyer or an attorney by a defendant to the police is insufficient. People v. Howerton , 335 Ill. App. 3d 1023, 1025, 270 Ill.Dec. 383, 782 N.E.2d 942 (2003). As noted above, to avoid difficulties of proof and to provide guidance to police officers conducting interrogations, the determination of whether an accused actually invoked the right to counsel is made using an objective standard. People v. Quevedo , 403 Ill. App. 3d 282, 293, 342 Ill.Dec. 515, 932 N.E.2d 642 (2010).

¶ 43 In the present case, after having reviewed the record, we find that the trial court properly denied defendant's postconviction petition following a third-stage evidentiary hearing. We reach that conclusion for several reasons. First, in the factual context of the present case, we agree with the trial court that defendant's question or comment about a lawyer was ambiguous and was not a clear request for an attorney. See Davis v. United States , 512 U.S. 452, 454-55, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (upholding the lower courts' finding that the petitioner's remark to law enforcement agents, "Maybe I should talk to a lawyer," was not a request for counsel); United States v. Shabaz , 579 F.3d 815, 816-19 (7th Cir. 2009) (finding that the defendant's question, "[A]m I going to be able to get an attorney?" which was asked in a hallway at the police station prior to interrogation and prior to the defendant being read his Miranda warnings was not a clear request for counsel under the circumstances); United States v. Wysinger , 683 F.3d 784, 788-96 (7th Cir. 2012) (finding that the defendant's initial question, "Do I need a lawyer before we start talking?" which was asked at the outset of the interrogation before the defendant was read the Miranda warnings did not constitute a clear, unambiguous, and unequivocal request for an attorney under the circumstances, although later statements by the defendant did constitute such a request); Lord v. Duckworth , 29 F.3d 1216, 1220-21 (7th Cir. 1994) (finding that the defendant's statement, "I can't afford a lawyer but is there any way I can get one?" which was made after the Miranda warnings had been given to the defendant twice and after the defendant had already made a lengthy recorded confession was not a clear and unequivocal request for an attorney under the circumstances); People v. Krueger , 82 Ill. 2d 305, 307-09, 311-12, 45 Ill.Dec. 186, 412 N.E.2d 537 (1980) (finding that the defendant's comment, "Maybe I ought to have an attorney," "Maybe I need a lawyer," or "Maybe I ought to talk to an attorney," which was made during the course of interrogation after the police officers had read the defendant the Miranda warnings, had questioned the defendant about several burglaries, and had started to question the defendant about his involvement in a stabbing death was not a clear invocation of the right to counsel). In the instant case, defendant asked the question about a lawyer at the outset of the interview as officer Kreissler was attempting to obtain consent from defendant to record the interview. Defendant's question or comment was made before officer Kreissler had read defendant the Miranda warnings and before Kreissler had started asking defendant questions about the suspected offense. Under the circumstances of the present case, applying an objective standard, defendant's question or comment about a lawyer did not constitute a clear invocation of the right to counsel that would have required officer Kreissler to stop questioning defendant until an attorney was present. See Miranda , 384 U.S. at 444-45, 86 S.Ct. 1602 ; Winsett , 153 Ill. 2d at 349, 180 Ill.Dec. 109, 606 N.E.2d 1186 ; Davis , 512 U.S. at 454-55, 462, 114 S.Ct. 2350 ; Shabaz , 579 F.3d at 816-19 ; Wysinger , 683 F.3d at 788-96 ; Lord , 29 F.3d at 1220-21 ; Krueger , 82 Ill. 2d at 307-09, 311-12, 45 Ill.Dec. 186, 412 N.E.2d 537.

¶ 44 In reaching that conclusion, we note that we have reviewed the cases cited by defendant in support of his assertion to the contrary and find the facts of those cases to be distinguishable from the facts of the present case. In most or all of the cases cited, the defendant's alleged request for an attorney was made just after the defendant was given his Miranda warnings and, taken in context, was a much clearer indication of the defendant's desire to have an attorney present than in the instant case. See Smith v. Illinois , 469 U.S. 91, 92-97, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (finding that defendant's statement, "Uh, yeah. I'd like to do that," which was made immediately after the police had advised defendant of the right to an attorney was a clear and unequivocal invocation of the right to counsel); United States v. Lee , 413 F.3d 622, 623-27 (7th Cir. 2005) (finding that defendant's statement, "Can I have a lawyer?" which was made just after the police had read the Miranda warnings to the defendant and had inquired whether the defendant was willing to talk to them was a clear and unequivocal request for an attorney and an invocation of the right to counsel, although any alleged error that resulted from the admission of the defendant's confession was ultimately harmless); Howerton , 335 Ill. App. 3d at 1024-27, 270 Ill.Dec. 383, 782 N.E.2d 942 (finding that the defendant's statement during interrogation that he either wanted to terminate the interview or wanted an attorney, which was made after defendant had been read the Miranda warnings and had been told that he was under arrest, was a clear an unequivocal invocation of his right to counsel); United States v. Hunter , 708 F.3d 938, 943-48 (7th Cir. 2013) (finding that the defendant's statement, "Can you call my attorney?" which was made to a police officer while the defendant was in custody at the hospital and after the defendant had been read the Miranda warnings was an unambiguous and unequivocal invocation of the right to counsel); Schuning , 399 Ill. App. 3d at 1086-90, 340 Ill.Dec. 409, 928 N.E.2d 128 (finding that the defendant's statement requesting to use the telephone to call his attorney, which was made while defendant was in custody at the hospital and while police interrogation was imminent, was an unambiguous invocation of the right to counsel). Suffice it to say, those are not the factual circumstances of the present case.

¶ 45 Second, in the instant case, police officer Kreissler appropriately responded to defendant's question or comment about a lawyer, even though under the law Kreissler was not required to do so (see Davis , 512 U.S. at 461-62, 114 S.Ct. 2350 ) and told defendant that they were not at that point yet in the interview, that he was going to get to that point, and that he would be reading defendant his Miranda rights. Within about 30 seconds after defendant's question, Kreissler did, in fact, read the Miranda rights to defendant, including the right to have an attorney present during the interview. Defendant indicated that he understood those rights; placed his initials next to the statement of each right; signed the Miranda form; and agreed to talk to the police, without making any further mention of an attorney.

¶ 46 Third, in the present case, there is no indication that defendant's statements to the police were truly involuntary. See Martin , 236 Ill. App. 3d at 121-22, 177 Ill.Dec. 533, 603 N.E.2d 603. Indeed, defendant has not claimed as much.

¶ 47 Fourth, we agree with the trial court that the determination whether to file a motion to suppress in the present case was an exercise of trial strategy by trial counsel and was not, therefore, subject to a claim of ineffective assistance of counsel. See id. at 121, 177 Ill.Dec. 533, 603 N.E.2d 603. Trial counsel indicated at the hearing on defendant's motion for new trial and on defendant's claims of ineffective assistance that she did not move to suppress the first statement, which had been recorded, because it was beneficial to defendant's case in that it corroborated defendant's alibi defense. As for defendant's second and third statements, trial counsel indicated that she did not move to suppress those statements because, in her opinion, there was no basis to do so since defendant had been Mirandized and the statements did not appear to be involuntary. Furthermore, as the record clearly indicates, this is not a case where defense counsel failed to conduct meaningful adversarial testing of the State's case. See Perry , 224 Ill. 2d at 355-56, 309 Ill.Dec. 330, 864 N.E.2d 196.

¶ 48 Fifth, for the reasons set forth above, we also agree with the trial court that it is not likely that defendant's trial counsel would have prevailed on a motion to suppress the statements had such a motion been filed. See Miranda , 384 U.S. at 444-45, 86 S.Ct. 1602 ; Winsett , 153 Ill. 2d at 349, 180 Ill.Dec. 109, 606 N.E.2d 1186 ; Davis , 512 U.S. at 454-44, 462, 114 S.Ct. 2350 ; Shabaz , 579 F.3d at 816-19 ; Wysinger , 683 F.3d at 788-96 ; Lord , 29 F.3d at 1220-21 ; Krueger , 82 Ill. 2d at 307-09, 311-12, 45 Ill.Dec. 186, 412 N.E.2d 537. Thus, defendant is unable to establish any prejudice from trial counsel's failure to file a motion to suppress the statements that defendant made to police. See Patterson , 217 Ill. 2d at 438, 299 Ill.Dec. 157, 841 N.E.2d 889.

¶ 49 Sixth and finally, based upon the record in this case and the applicable legal principles as set forth above, we conclude that the factual findings made by the trial court after the third-stage evidentiary hearing were well supported by the record and the legal determinations made by the trial court were consistent with the current state of the law on the issues presented. We do not agree with defendant's assertions to the contrary. To a large extent, defendant places too much reliance on this court's previous ruling in this case-where a majority of this court held essentially that defendant's pro se postconviction petition was sufficient to state the gist of a constitutional claim. See Brickhouse , 2013 IL App (3d) 110584-U, ¶¶ 2, 26. In making that ruling, the court majority found that "[u]nder the lower standard of review of a first-stage postconviction petition, defendant's statement [about a lawyer], viewed in light of the instant scenario, could be construed as an invocation of defendant's right to counsel." Id. ¶ 29. In a third-stage postconviction proceeding, however, which is what is currently before this court in the instant appeal, the allegations in the postconviction petition are no longer taken as true and the defendant must prove by a preponderance of the evidence that he suffered a substantial violation of his constitutional rights. Compare People v. Hodges , 234 Ill. 2d 1, 10, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) (stating the legal rules that apply in a first-stage postconviction proceeding), with Williams , 2017 IL App (1st) 152021, ¶ 22, 414 Ill.Dec. 628, 80 N.E.3d 771 (stating the legal rules that apply in a third-stage postconviction proceeding). As the trial court implicitly found, defendant failed in that burden here.

¶ 50 CONCLUSION

¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County.

¶ 52 Affirmed.

Justices McDade and O'Brien concurred in the judgment and opinion.

      Although not quite clear from the record, it appears that the portion of the recording where defendant mentioned parole may have been redacted and not played for the jury to hear.

      In the amended petition, postconviction counsel alleged that appellate counsel was also ineffective for failing to raise on appeal trial counsel's failure to file a motion to suppress.