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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Quentin Corley MOORE, Defendant-Appellant.
    No. 2-17-0120
    Appellate Court of Illinois, Second District.
    Opinion filed June 21, 2018
    James E. Chadd, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.
    Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    JUSTICE BIRKETT delivered the judgment of the court, with opinion ¶ 1 In 2007, defendant, Quentin Corley Moore, was convicted of attempted first-degree murder. We affirmed his conviction on direct appeal. People v. Moore , No. 2-08-0919, 399 Ill.App.3d 1235, 371 Ill.Dec. 748, 990 N.E.2d 936 (2010) (unpublished order under Illinois Supreme Court Rule 23 ). Subsequently, defendant filed a pro se postconviction petition. Counsel was appointed to represent defendant on the petition but was later permitted to withdraw. The court subsequently dismissed the petition on the State's motion. Defendant appeals, challenging the orders granting counsel leave to withdraw and dismissing the petition. We hold that postconviction counsel failed to demonstrate compliance with the mandate of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) that counsel "ascertain [the defendant's] contentions of deprivation of constitutional rights." We therefore vacate the orders allowing withdrawal of counsel and dismissing the petition, and we remand for further proceedings.
    ¶ 2 I. BACKGROUND
    ¶ 3 In December 2005, defendant was indicted on two counts related to an alleged shooting in Aurora on November 22, 2005. Count I charged defendant with attempted first-degree murder ( 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004) ) and alleged that defendant "performed a substantial step towards the commission of [first-degree murder], in that he without lawful justification and with the intent to kill Julian Ramos, shot Julian Ramos with a firearm." Count II charged defendant with aggravated discharge of a firearm ( 720 ILCS 5/24-1.2(a)(2) (West 2004) ) and alleged that defendant "discharged a firearm in the direction of another person in that he shot at Julian Ramos with a firearm."
    ¶ 4 Prior to jury selection, the State moved to amend count I to allege that defendant "shot at Julian Ramos" (emphasis added) instead of "shot Julian Ramos." Defendant did not object, and the trial court permitted the amendment.
    ¶ 5 In its opening statement, the State anticipated that the evidence would show that, on November 22, 2005, defendant was driving a car with three fellow members of the Latin Kings gang. One of the passengers was Blake Pannell, an informant with the Federal Bureau of Investigation (FBI). During the drive, another passenger, Augustin Montes, saw a pedestrian he recognized as Ramos. Montes, armed with a handgun, left the car and shot at Ramos.
    ¶ 6 The evidence at trial was recounted in detail in our disposition on direct appeal. See Moore , No. 2-08-091. Pannell testified that, in November 2005, he was a member of the Latin Kings, working as an informant for the FBI. On November 22, 2005, Pannell was riding around Aurora with three fellow Latin Kings: defendant, Montes, and Ruben Hernandez. Defendant was driving. The four were looking for graffiti that was insulting to the Latin Kings. When they saw such graffiti, they would spray paint over it with insults to the Insane Deuces, a rival gang. For security purposes, they had a gun, which belonged to defendant. Shortly after joining his associates that day, Pannell activated the secret audio-recording device that he was wearing.
   ¶ 7 Pannell testified that, at some point during their drive, Montes remarked that he observed a pedestrian who belonged to the Insane Deuces. The four plotted how to shoot the pedestrian. Defendant drove the car in pursuit of the intended target. Montes twice exited the car with the gun in order to shoot the pedestrian. The first time Montes exited, Pannell also left the car and spray painted over some nearby graffiti. Before Montes exited the second time, Pannell covertly removed the clip from the gun, which left Montes with just the one bullet in the chamber. Pannell witnessed Montes fire the one bullet at the pedestrian. The four then drove in further pursuit of the pedestrian but relented when he reached an area with a number of bystanders.

¶ 8 Pannell testified that he observed the pedestrian while the group was pursuing him. However, only in the following exchange did Pannell name the pedestrian:

"Q. Were you ever going to give the clip to [Montes]-for him to complete the shooting of Julian Ramos?
A. No."

¶ 9 Pannell testified that, after the encounter with the pedestrian, he and his three associates went to the home of Marina Moreno, an aspiring Latin Queen. Montes hid defendant's gun in Moreno's bedroom ceiling.

¶ 10 The State played for the jury a copy of Pannell's audio recording. Voices are heard declaring an intent to shoot someone and then commenting on the subject as he is pursued and flees. Mixed in with the statements are the sounds of a car door shutting. The State also introduced into evidence a transcript of the audio recording. Ramos is not identified by name in the recording itself or in the transcript.

¶ 11 Moreno testified that, on November 22, 2005, defendant came to her house with Pannell, Hernandez, and Montes. After the group left, defendant phoned Moreno and told her that there was a gun in the ceiling in her room. About a week later, Moreno took the gun and delivered it to defendant at his request. She was not certain that the gun belonged to defendant, but she had seen him with it on prior occasions.

¶ 12 The State also called the FBI agent who worked with Pannell. The agent testified that Pannell contacted her on November 22, 2005, to report a shooting that had just occurred.

¶ 13 The State's final witness was an Aurora police officer who testified as an expert on gang activity. The expert explained that animosity between rival gangs can manifest itself in arguments, fights, or shootings. The expert opined that the shooting on November 22, 2005, was gang-related.

¶ 14 Following that expert's testimony, the State declared that it had no other witnesses. Ramos had not testified. The State moved to amend both counts of the indictment by substituting "another" for "Julian Ramos." Count I as amended would allege that defendant, "without lawful justification and with the intent to kill another, shot at another with a firearm." Count II as amended would allege that defendant "discharged a firearm in the direction of another person in that he shot at another with a firearm." The State explained that its reason for the proposed amendment was that it "couldn't find" Ramos, though it had subpoenaed him for prior settings of the trial. The State contended that the amendment would conform the indictment to the evidence at trial, which was that "an individual was shot at, a person was shot at by [Montes]." The State suggested that Ramos's name was "surplusage" in the indictment.

¶ 15 Defense counsel objected to the proposed amendment. The trial court asked how the amendment would prejudice the defense, and defense counsel replied that the amendment would permit the State to argue that defendant was guilty as long as there was someone in the area whom Montes could have shot at, whether it was Ramos or not. The court replied:

"I don't think that is what they [the State] are saying. I think that they are saying it is a person who[m] [Montes] saw and said he's a rival guy and that is the person. * * *
I think they are identifying him in that way. I don't think they are saying it could be anybody. I mean, it is not like there were ten people there that were being shot at."

¶ 16 The court added that it would not permit the State to argue in closing that defendant would be guilty as long as Montes shot at some individual, even if it were not the individual whom Pannell testified he and his associates pursued. Finding no prejudice to the defense, the court allowed the amendment to both counts.

¶ 17 Subsequently, the State rested and the defense called one witness, an Aurora police detective. The detective testified that, when he spoke with Pannell on the evening of November 22, 2005, Pannell did not mention having done any spray painting or having exited the car near the time of the shooting. Nor did Pannell mention that the gun in the car belonged to defendant.

¶ 18 In its closing argument, the State did not mention Ramos by name but referred generically to the person who Pannell testified was pursued by his group on November 22, 2005.

¶ 19 In the defense's closing, counsel commented on Ramos's absence. In rebuttal, the State argued:

"Do we have to show that Julian Ramos-what do we have to show about Julian Ramos? Well, there is no evidence about Julian Ramos. We do have evidence, evidence from the day of the shooting that Augustin Montes chased after a guy that Blake Pannell identifies as a heavyset Hispanic kid. Identity is not an issue. If you look at the instructions, it says that. And what you will get is the instructions. And I in no way mean to misspeak. The definition of * * * attempted first degree murder * * * is that without lawful justification with the intent to kill an individual, [sic ] does any act which constitutes a substantial step towards the killing of an individual."

¶ 20 At this, defense counsel objected, remarking that the State was "dangerously close to insinuating that * * * this guy just vanished into thin air." Counsel noted that the State had "already named him as Julian Ramos." The State replied that its remarks about what it had to prove were simply in response to the defense's comment on Ramos's absence. The trial court instructed the State that it could "talk about the jury instructions and the individual." Continuing with its argument, the State commented:

"Again, it's an individual shooting another person. Don't have to identify that person. That person, in fact, does not have to come and testify. You won't see an instruction that says you must hear-"

¶ 21 Defense counsel again objected, and the court sustained the objection.

¶ 22 The jury returned verdicts of guilty on both counts. Defendant filed a posttrial motion, reasserting that the trial court erred in permitting the amendments that eliminated the name "Julian Ramos." The trial court denied the motion. The court then sentenced defendant to 23½ years in prison. The court merged count II into count I for purposes of sentencing.

¶ 23 On direct appeal, defendant raised no issue regarding the amendments to the indictment. We affirmed defendant's convictions. See Moore , No. 2-08-0919.

¶ 24 In October 2010, defendant filed a pro se postconviction petition under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2010) ). The petition was over 500 pages, including attachments. He raised numerous contentions of error. One paragraph of the petition read:

"Petitioner was denied his right to the effective assistance of appellate counsel where appellate counsel failed to raise me being prejudiced by these amending at the day of trial and at the closing of trial [right] before closing arguments. On Nov. 5, [2007,] petitioner was prejudiced by the Court allowing the word be changed from 'shot' to 'shot at' on the first day of trial, which [the] judge agreed that this amending came as [a] surprise, also no motion by the State for this amending which is required by 725 ILCS 5/115. Nov. 7, [2007,] there was another amending that was allowed that the judge allowed of the name of [the] alleged victim to be removed and for count one to read, 'the intent to kill another,' and for count two to read, 'shot at another with a firearm,' which the State said the name is mere surplusage. No motion on file for this second amending and with his name being removed in the Criminal Procedure Book 5/114-1 says that in section 10, the misnomer results in substantial injustice to the defendant, nothing of 5/115-5 of the Criminal Procedure says the name could be removed and this done [right] before closing arguments of trial. He wasn't even there at trial and they even used his name in [opening] statements, during trial and closing arguments. Case [law] says that you can't broad[en] an element of the offense has to be returned to the Grand Jury for any changes. Then the judge makes a statement saying there wasn't ten people being shot at, so how would you replace the alleged victim with another if there's no one to say that there was another."

¶ 25 In July 2011, defendant inquired by letter into the status of his petition. In August 2011, the circuit court clerk responded by letter that the petition was "[i]n the docket as of August 3, 2011" and that there was "no future court date." The court's first order on the petition was dated May 15, 2012, and stated: "Rachel Hess was appointed to represent [defendant] in his post-conviction petition on April 2, 2012, but it was erroneously put on 07 CF 1840, a closed case." Hess was later permitted to withdraw because of her workload, and new counsel was appointed. In January 2014, new counsel filed an affidavit of compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) as well as a motion for leave to withdraw as counsel. Counsel identified four individual claims raised in defendant's pro se petition, and counsel explained why each lacked potential merit. In April 2014, counsel filed an addendum to her motion to withdraw, addressing the potential merit of two additional claims raised in defendant's petition. Neither the original motion nor its addendum addressed the potential merit of, or even acknowledged, defendant's claim that appellate counsel was ineffective for failing to challenge the amendments to the indictment.

¶ 26 The trial court granted counsel's motion to withdraw. Subsequently, the State moved to dismiss the petition. The State recognized that defendant claimed that appellate counsel "was ineffective on the petitioner's direct appeal." However, the State did not recognize that defendant claimed ineffectiveness based on appellate counsel's failure to claim that the amendments to the indictment were improper.

¶ 27 The trial court granted the motion to dismiss, and defendant filed this timely appeal.

¶ 28 II. ANALYSIS

¶ 29 Defendant makes several alternative requests for relief in this appeal. His preference is that we assess the merit or potential merit of the claim in his pro se postconviction petition that appellate counsel was ineffective for failing to contend on direct appeal that the trial court erred in permitting the State to amend count I by striking the name "Julian Ramos." Defendant's first three alternative choices of relief are (1) an outright reversal of his conviction, (2) a reversal of his conviction and a remand for a new trial, and (3) a remand for a third-stage evidentiary hearing under the Act. See People v. Bailey , 2017 IL 121450, ¶ 18, 421 Ill.Dec. 833, 102 N.E.3d 114 (petition will advance to third-stage review if it presents a substantial showing of a constitutional violation).

¶ 30 Defendant's fourth alternative choice of relief does not involve our assessing the merit or potential merit of his pro se amendment claim. Specifically, defendant argues that the trial court erred in permitting his appointed postconviction counsel to withdraw, because counsel failed to provide the level of assistance required under the Act during second-stage proceedings. See People v. Greer , 212 Ill. 2d 192, 204, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004) (the Act guarantees the petitioner a " 'reasonable' " level of assistance from appointed counsel). In determining whether that level of assistance was provided, we need not-and must not-address the merits of the petition. See People v. Suarez , 224 Ill. 2d 37, 51-52, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007). For the following reasons, we agree with defendant that the trial court erred in allowing counsel to withdraw. Accordingly, we vacate the order of withdrawal and the later dismissal of the pro se petition, and we remand for the appointment of new postconviction counsel.

¶ 31 The Act ( 725 ILCS 5/122-1 et seq. (West 2010) ) provides a procedural mechanism by which a criminal defendant can assert that his federal or state constitutional rights were substantially violated in his original trial. A postconviction proceeding is not a substitute for a direct appeal, but rather is a collateral attack on a prior conviction and sentence. People v. Davis , 2014 IL 115595, ¶ 13, 379 Ill.Dec. 381, 6 N.E.3d 709. For this reason, issues that were raised and decided on direct appeal are barred from consideration, by the doctrine of res judicata . Id. Moreover, issues that could have been raised on direct appeal, but were not, are considered forfeited. Id. However, application of forfeiture principles is relaxed where the forfeiture stems from the ineffective assistance of appellate counsel. People v. English , 2013 IL 112890, ¶ 22, 369 Ill.Dec. 744, 987 N.E.2d 371.

¶ 32 Petitions under the Act are reviewed in distinct stages. The first stage spans the 90-day period following the filing of the petition. Within that 90-day period, the trial court may dismiss the petition if it determines that the petition isfrivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2010). If the court finds that the petition is not so deficient but states the "gist of a constitutional claim" ( People v. Allen , 2015 IL 113135, ¶ 24, 392 Ill.Dec. 307, 32 N.E.3d 615 ), the petition advances to the second stage of review. 725 ILCS 5/122-2.1(b) (West 2010). At the first stage, the State is not permitted any input on the sufficiency of the petition. Bailey , 2017 IL 121450, ¶ 19, 421 Ill.Dec. 833, 102 N.E.3d 114. If the trial court fails to act on the petition within 90 days, it proceeds to the second stage. Id. ¶ 18 ; Greer , 212 Ill. 2d at 204, 288 Ill.Dec. 153, 817 N.E.2d 511 ("Of course, in [this] instance, the petition may well be frivolous or patently without merit, and the defendant is appointed counsel only through the fortuity of the circuit court's inaction.").

¶ 33 At the second stage, the petitioner, if indigent, is entitled to the appointment of counsel. 725 ILCS 5/122-4 (West 2010). The Act guarantees the petitioner a " 'reasonable' " level of assistance from appointed counsel. Greer , 212 Ill. 2d at 204, 288 Ill.Dec. 153, 817 N.E.2d 511. To ensure that the requisite level of assistance is provided, Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes specific duties on postconviction counsel. If, after demonstrating compliance with Rule 651(c), appointed counsel determines that the pro se petition is frivolous or patently without merit, appointed counsel may-and should-move to withdraw from representation. Greer , 212 Ill. 2d at 209, 211-12, 288 Ill.Dec. 153, 817 N.E.2d 511. The court in Greer said:

"We are confident that the legislature did not intend to require appointed counsel to continue representation of a postconviction defendant after counsel determines that defendant's petition is frivolous and patently without merit. Nothing in the Act requires the attorney to do so, and the attorney is clearly prohibited from doing so by his or her ethical obligations." (Emphasis omitted.) Id. at 209, 288 Ill.Dec. 153, 817 N.E.2d 511.

¶ 34 Also at the second stage, the State is permitted to answer the petition or move to dismiss it. See 725 ILCS 5/122-5 (West 2010). To survive the second stage, the petition must make a substantial showing of a constitutional violation. Bailey , 2017 IL 121450, ¶ 18. The court must accept as true all well-pleaded facts that are not positively rebutted by the record. People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). Review of a second-stage dismissal is de novo . Id. Counsel's compliance with Rule 651(c) is also reviewed de novo . People v. Profit , 2012 IL App (1st) 101307, ¶ 17, 363 Ill.Dec. 16, 974 N.E.2d 813.

¶ 35 Defendant claims that it was error for the trial court to permit postconviction counsel to withdraw where counsel neither (1) addressed the potential merit of his ineffectiveness claim based on the amendment to the indictment nor (2) demonstrated compliance with Rule 651(c). As defendant recognizes, our review of an order permitting postconviction counsel to withdraw differs depending on whether the pro se petition advanced to the second stage because the trial court deemed it potentially meritorious or instead because the trial court took no action on the petition within 90 days of its filing. Under People v. Kuehner , 2015 IL 117695, ¶ 27, 392 Ill.Dec. 347, 32 N.E.3d 655, if the petition advanced because the trial court found potential merit, then "appointed counsel's motion to withdraw must contain at least some explanation as to why all of the claims set forth in that petition are so lacking in legal and factual support as to compel his or her withdrawal from the case." (Emphasis added.) The supreme court explained why it placed that burden on appointed counsel:

"[A] request for leave to withdraw as counsel after a first-stage judicial determination that the pro se petition is neither frivolous nor patently without merit is an extraordinary request. The reason for this is that, in making such a determination and advancing the petition to the second stage, the trial court is granting the pro se defendant the first form of relief afforded by the Act, namely, the appointment of counsel to represent the defendant's interests going forward ( 725 ILCS 5/122-4 (West 2008) ). A subsequent motion to withdraw is effectively an ex post request to deny the defendant that very relief, and it comes not from the State but from defendant's own counsel. Accordingly, we have no reservations about requiring appointed counsel to make the case in the motion to withdraw as to why the relief previously granted his or her client should be undone, and to make that case with respect to each and every pro se claim asserted." (Emphasis omitted.) Id. ¶ 22.

In Kuehner , the court found that appointed counsel's motion to withdraw was inadequate because it did not address the potential merit of all claims in the pro se petition. Id. ¶ 23. The court vacated the orders permitting counsel to withdraw and dismissing the petition, and the court remanded for appointment of new postconviction counsel. Id. ¶ 27.

¶ 36 The court in Kuehner contrasted the facts before it with the facts in Greer , where the pro se petition advanced to the second stage through the trial court's failure to act upon it within 90 days. In Greer , appointed counsel's motion to withdraw stated that the petition lacked merit because counsel was unable to " 'properly substantiate' " any of its claims. Greer , 212 Ill. 2d at 200, 288 Ill.Dec. 153, 817 N.E.2d 511. The trial court granted the motion to withdraw and dismissed the petition. The supreme court affirmed the trial court. The court disapproved of appointed counsel's terse assessment of the defendant's pro se claims, as "[a]n attorney moving to withdraw should make some effort to explain why defendant's claims are frivolous or patently without merit." (Emphasis in original.) Id. at 212, 288 Ill.Dec. 153, 817 N.E.2d 511. The court nonetheless affirmed the order permitting counsel to withdraw, because it "appear[ed] that counsel fulfilled his duties as prescribed by Rule 651(c), and the record * * * support[ed] counsel's assessment that the defendant's postconviction claims were frivolous and without merit." Id.

¶ 37 The court in Kuehner recognized that the language in Greer has engendered "some measure of confusion" in the appellate courts over whether appointed counsel's motion to withdraw is properly granted where the motion fails to provide some explanation as to why each of the claims in the pro se petition lacks potential merit. Kuehner , 2015 IL 117695, ¶ 16, 392 Ill.Dec. 347, 32 N.E.3d 655. The court in Kuehner declined to "resolv[e] that tension," however, because the facts before it were so different from the facts in Greer . Id. ¶ 18.

¶ 38 In People v. Komes , 2011 IL App (2d) 100014, 352 Ill.Dec. 440, 954 N.E.2d 300, this court took a side in the debate over how to interpret Greer . We read Greer to hold that, even where the petition advances to the second stage through the trial court's inaction, appointed counsel's motion to withdraw must address the potential merit of all claims in the pro se petition. Nonetheless, we acknowledged that, under Greer , judicial economy sometimes dictates affirming the grant of leave to withdraw even where the motion to withdraw is deficient:

"Although the Greer court specified that a motion to withdraw should address all of a petitioner's claims, it also recognized that, under proper circumstances, the futility of the representation is clear in spite of flaws in the motion. If the record shows that counsel did everything required of him or her under Rule 651(c) and that all the claims in the original petition were patently without merit, then it serves no purpose to reverse a grant of leave to withdraw simply because of insufficiencies in the motion." (Emphasis omitted.) Id. ¶ 30.

Komes properly construed Greer . Accordingly, where appointed counsel is allowed to withdraw from representation on a postconviction petition that advanced to the second stage automatically because of the trial court's inaction, we will uphold the withdrawal if (1) counsel complied with Rule 651(c) and (2) the record demonstrates that the claims in the pro se petition were frivolous or patently without merit.

¶ 39 In the present case, the petition advanced to second-stage review because the trial court did not act upon it within 90 days of its filing. The first order in the record relating to the October 2010 petition is the May 2012 order appointing counsel. Even if we can infer from the clerk's August 2011 letter to defendant that the petition was docketed for second-stage review as of August 2011, we cannot infer that it was docketed earlier than August 2011, which was still beyond the 90-day window.

¶ 40 Therefore, our review proceeds under Greer rather than Kuehner . We hold that the trial court erred in permitting counsel to withdraw, because counsel failed to demonstrate compliance with Rule 651(c). The Act entitles a postconviction petitioner to a " 'reasonable' " level of assistance by counsel. Greer , 212 Ill. 2d at 204, 288 Ill.Dec. 153, 817 N.E.2d 511. To ensure that the petitioner receives that level of assistance, Rule 651(c) provides that postconviction counsel must (1) "consult[ ] with petitioner * * * to ascertain his or her contentions of deprivation of constitutional rights," (2) "examine[ ] the record of the proceedings at the trial," and (3) "[make] any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner's contentions." Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Thus, "[o]ne of postconviction counsel's duties is to ascertain the petitioner's claims." Komes , 2011 IL App (2d) 100014, ¶ 32, 352 Ill.Dec. 440, 954 N.E.2d 300. Compliance with Rule 651(c) may be demonstrated though a certificate filed by counsel or through the record as a whole. People v. Lander , 215 Ill. 2d 577, 584, 294 Ill.Dec. 646, 831 N.E.2d 596 (2005).

¶ 41 The record indicates that appointed counsel failed to recognize defendant's amendment claim among the multiple claims in his pro se petition. In the Rule 651(c) certificate that counsel filed with her motion to withdraw, she stated that she (1) "reviewed [defendant's] pro se filings concerning [this] matter," (2) "examined the entire record to ascertain any errors or constitutional deprivations," and (3) "consulted with [defendant] in person concerning potential issues." In her motion to withdraw, counsel stated that she consulted with defendant on specific dates "to ascertain and discuss his contentions of deprivation of constitutional rights." She further stated that she "reviewed the entire record available to her * * * and * * * concluded that [defendant's] petition present[ed] no issue of merit upon which [defendant] could expect to obtain relief." Counsel then purported to state what, "[i]n short, the petition and its related documents allege." She set forth four individual claims and explained why they lacked potential merit. Several months later, counsel filed an "addendum" to the motion to withdraw. Counsel noted that the trial court had asked her to "address two additional points found in [the] post conviction petition," which counsel failed to address in her motion to withdraw. Counsel proceeded to address two additional claims and explain why they were not potentially viable. At the hearing on the motion to withdraw, counsel asserted that, in her motion, she "went through the issues and stated * * * positions and case law to address each one. " (Emphasis added.)

¶ 42 Thus, counsel confirmed at the hearing that her motion purported to recapitulate the claims of the petition as she understood them. However, in neither her original motion nor its addendum did counsel acknowledge the amendment claim. This was because, we infer, counsel did not discern the claim among the others. Counsel's oversight was perhaps understandable, given the length and density of the pro se petition, but counsel was not thereby excused from compliance with Rule 651(c)'s mandate that she "ascertain [defendant's] contentions of deprivation of constitutional rights." Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). "Unless the record shows that counsel has, in fact, ascertained the petitioner's claims, we cannot assume that the claims are in their final form, and deciding their frivolity is likely to be premature." Komes , 2011 IL App (2d) 100014, ¶ 32, 352 Ill.Dec. 440, 954 N.E.2d 300.

¶ 43 We recognize that a reviewing court has permission under Greer to affirm the grant of a motion to withdraw even where counsel has not explained why each of the petitioner's claims lacks potential merit. But Greer was unequivocal that the reviewing court cannot relieve counsel of his or her duty under Rule 651(c) to ascertain the petitioner's claims. Greer , 212 Ill. 2d at 212, 288 Ill.Dec. 153, 817 N.E.2d 511. Counsel in Greer at least understood what the pro se petition contained. Counsel "stated, as to each issue raised in defendant's pro se petition, that counsel could not 'properly substantiate' the claim." Id. at 195, 288 Ill.Dec. 153, 817 N.E.2d 511. Obviously, it is imperative that counsel ascertain what the pro se petition actually contains before asserting to a court that the petition lacks potential merit. We stress that we do not read Greer as prescribing any particular form for a motion to withdraw. Our holding is simply that here, though counsel attempted twice to state the claims in the pro se petition, we cannot conclude that counsel ascertained the claim that she failed to mention in those two tries.

¶ 44 Given counsel's apparent failure to discern the amendment claim, we cannot deem the claim to have been in its "final form" when the trial court evaluated its potential merit. It would likewise be premature for us, on review, to judge the claim's potential merit. See Suarez , 224 Ill. 2d at 52, 308 Ill.Dec. 774, 862 N.E.2d 977 (harmless-error analysis does not apply to Rule 651(c) violations, as "compliance must be shown regardless of whether the claims made in the pro se or amended petition are viable").

¶ 45 We therefore vacate the orders permitting counsel to withdraw and later dismissing the pro se petition. Given the particular circumstances of this case, we grant defendant's request for the appointment of new postconviction counsel. We provide the same direction that we did in Komes :

"On remand, the [trial] court should not grant any motion to withdraw unless counsel documents Rule 651(c) compliance. Further, any motion to withdraw that counsel files should demonstrate the frivolity of every claim of defendant's."
Komes , 2011 IL App (2d) 100014, ¶ 36, 352 Ill.Dec. 440, 954 N.E.2d 300.

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we vacate the orders permitting defendant's appointed counsel to withdraw and dismissing defendant's pro se postconviction petition. We remand for further proceedings as directed.

¶ 48 Vacated and remanded with directions.

Justices McLaren and Zenoff concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcial GUERRERO, Defendant-Appellant.
    No. 2-16-0920
    Appellate Court of Illinois, Second District.
    Opinion filed June 26, 2018
    Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State Appellate Defender's Office, of Chicago, for appellant.
    Eric C. Weis, State's Attorney, of Yorkville (Patrick Delfino, Lawrence M. Bauer, and Victoria E. Jozef, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 This is the third appeal brought by defendant, Marcial Guerrero. In 2006, he was charged by indictment with three counts of predatory criminal sexual assault of a child ( 720 ILCS 5/12-14.1(a)(1) (West 2004) ). All three counts alleged that he sexually penetrated the victim. The first count was based on contact between defendant's penis and the victim's mouth, the second count was based on defendant's placing his finger into the victim's vagina, and the third count was based on contact between defendant's penis and the victim's anus. Following a jury trial in 2007, defendant was convicted of all three counts and sentenced to three consecutive terms of 25 years' imprisonment. Defendant raised several issues on direct appeal, none of which involved the sufficiency of the evidence, and we affirmed his conviction and sentence. People v. Guerrero , No. 2-07-1183, 398 Ill.App.3d 1109, 370 Ill.Dec. 771, 988 N.E.2d 1127 (2010) (unpublished order under Illinois Supreme Court Rule 23 ) ( Guerrero I ).

¶ 2 Thereafter, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2010) ). The trial court summarily dismissed the petition and defendant appealed, arguing that his appellate counsel was ineffective on direct appeal for failing to challenge the sufficiency of the evidence with respect to the second count in the indictment. Specifically, defendant argued that there was nothing at trial to indicate that his finger ever intruded into the victim's vagina. We held that defendant's petition stated the gist of a constitutional claim, and, accordingly, we reversed the trial court's summary dismissal and remanded the matter for further proceedings. People v. Guerrero , 2013 IL App (2d) 111161-U, 2013 WL 1932680( Guerrero II ).

¶ 3 On remand, defendant's appointed postconviction counsel filed an amended petition and a second amended petition. Among the numerous issues raised in the second amended petition was the claim at the center of our holding in Guerrero II . However, the trial court granted the State's motion to dismiss the second amended petition, and defendant now appeals. As was the case in Guerrero II , defendant's sole contention in this appeal is that his appellate counsel was ineffective on direct appeal for failing to argue that the evidence at trial was insufficient to sustain a conviction on the second count in the indictment.

¶ 4 As we will explain, defendant has made a substantial showing of a constitutional violation, and we therefore reverse the trial court's dismissal of his second amended postconviction petition. However, the parties also dispute the relief that should be granted under these circumstances. We will address that issue following our discussion on the merits.

¶ 5 I. BACKGROUND

¶ 6 Before discussing the evidence adduced during defendant's trial, we first provide a brief overview of the legal issue that forms the basis of this appeal. To sustain defendant's convictions of predatory criminal sexual assault of a child, the State was generally required to prove that defendant committed acts of "sexual penetration" with the victim. 720 ILCS 5/12-14.1(a)(1) (West 2004). At the time of the alleged acts, "sexual penetration" was defined as follows:

" 'Sexual penetration' means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration." 720 ILCS 5/12-12(f) (West 2004).

¶ 7 In People v. Maggette , 195 Ill. 2d 336, 346-47, 254 Ill.Dec. 299, 747 N.E.2d 339 (2001), our supreme court noted that this definition of "sexual penetration" defines "two broad categories of conduct." First, the "contact" clause describes any contact with the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person. Second, the "intrusion" clause describes any intrusion of any part of the body of one person or of any animal or object into the sex organ or anus of another person. Id. at 347, 254 Ill.Dec. 299, 747 N.E.2d 339. The court determined that, as used in the intrusion clause, the word "object" was limited to "inanimate objects." Id. Hence, under principles of statutory construction, the word "object" in the contact clause was not intended to include parts of the body. Id. at 349-50, 254 Ill.Dec. 299, 747 N.E.2d 339.

¶ 8 Applying Maggette to the second count in this case, the State could not sustain a conviction based on evidence that defendant's finger merely came in contact with the victim's vagina. Rather, the State was required to prove that there was an intrusion, however slight, of defendant's finger into the victim's vagina. See 720 ILCS 5/12-12(f) (West 2004). With this in mind, we now turn to the evidence at defendant's trial.

¶ 9 A. Trial

¶ 10 The victim, P.G., was 11 years old at the time of the alleged criminal acts. Because she did not make her initial outcry until she was 13 years old, the State was unable to introduce her out-of-court statements at trial. See 725 ILCS 5/115-10(b)(3) (West 2006). P.G. was 15 years old at the time of trial. She was the State's first witness. Her testimony was conducted via a closed-circuit television system.

¶ 11 On direct examination, P.G. testified that her mother began dating defendant in January 2003. Shortly thereafter, defendant moved into an apartment shared by P.G. and her mother, along with P.G.'s younger sister and infant brother. P.G. described a pattern of conduct by defendant that took place over the course of approximately one month. According to P.G., when her mother was at work during the night, defendant would bring her into her mother's bedroom, remove her clothes, and begin touching her. When P.G. was asked to describe the first time that this happened, the following exchange took place:

"A. He-he put his thing-he put his d***-no, he put his d*** like by my-I don't know how to say it, but like he put it towards like the butt hole and everything.
[MR. REIDY (PROSECUTOR) ]: That was the first time you were with him?
A. Yeah.
Q. So we're clear what we're talking about, what body part are you referring to?
A. The boobs. He touched the boobs. And my vagina.
Q. Let's slow down 'cause I know it's taken-
A. Yeah.
Q. Let's take a deep breath. The first time your clothes were off, what, if anything, did he-did [defendant] do to you to start off with? You said he touched where?
A. My boobs. He started going down to the vagina.
Q. Where on your vagina did he touch you?
A. Like by the crack.
MR. REIDY: If the record could reflect she's indicated in between her fingers, it would be I guess the crevice or the crack of the fingers.
THE COURT: Yes, record may so reflect.
[MR. REIDY]: With what did he touch you there?
A. With his hands.
Q. How did that make you feel?
A. I thought he would do nothing like that, nothing like that."

¶ 12 The prosecutor asked P.G. how many times defendant's hand came "in contact" with her "vagina and crack," and she answered that this happened approximately 10 times. P.G. added that defendant placed his penis near her anus on at least three occasions, that he forced her to perform oral sex on him approximately five times, and that his penis came in contact with her vagina approximately two times. P.G. was also asked whether defendant did "anything else of a sexual nature with [her] other than sucking-having [her] suck his d***, penis against your butt hole." She answered, "I don't think so." When P.G. was asked whether defendant was able to "go inside" her vagina with his penis, she answered, "No. I screamed."

¶ 13 On cross-examination, when P.G. was asked whether defendant did anything other than use his hand to touch her breasts and vagina on the first night, she responded, "I think that's it. I don't remember." Defense counsel pressed the issue, referencing a statement that P.G. had purportedly made to investigators before the trial. The exchange went as follows:

"[MS. CHUFO (DEFENSE COUNSEL) ]: That was it? When you were interviewed by those two men that came to your apartment, isn't it true that you told them that he also put his fingers in your vagina that first night?
A. They were closed, yeah. Yeah.
Q. When you say they were closed-
A. Like this, like by the crack.
Q. Isn't it true that you said that his fingers went in a little bit?
A. No. That was like another night, he put his d*** almost in my vagina-or he tried to, but I screamed."

¶ 14 On redirect examination, the prosecutor did not question P.G. as to any instances of vaginal contact or intrusion.

¶ 15 The remaining witnesses offered little to elucidate the issue of whether defendant's finger intruded into P.G.'s vagina. P.G.'s sister testified that defendant would take P.G. into his bedroom at night when their mother was at work. P.G. would return crying, but she never explained why. P.G.'s mother testified that she learned of P.G.'s allegations for the first time in 2006, when investigators came to her apartment. She added, "[a]t this day I don't even know what's happening 'cause [P.G.] hasn't told me what [defendant] did to her." Tim Martin, an investigator with the Kane County Child Advocacy Center, testified that he interviewed P.G. in 2006, regarding a report that P.G. made to her school counselor. He testified that P.G. began crying when she was questioned about her allegations of sexual contact with defendant. Finally, P.G.'s former neighbor testified that, when she was 16 years old, she had sexual intercourse with defendant. This was reported to police in December 2003. Defendant was then arrested in January 2004, approximately one year after he moved in with P.G.'s family. He was convicted of aggravated criminal sexual abuse and sentenced to three years in prison. The trial court admitted a certified copy of that conviction into evidence, and the State rested its case.

¶ 16 Defendant's theory of the case was that P.G. made false allegations against him to prevent him from returning to live with her family after he completed his prison term for aggravated criminal sexual abuse. Defendant first presented Hollida Wakefield, an expert witness qualified in the field of psychology. She testified that, in addition to reviewing Martin's written report of his interview with P.G., she had also reviewed a recorded interview with P.G. The recorded interview, which was conducted by a different investigator, took place after Martin's interview. Wakefield noted that there were "significant contradictions" between Martin's report and the recorded interview. Wakefield explained that, because Martin's interview was not recorded, she could not be certain whether Martin had used suggestive questions or whether his approach impacted the subsequently recorded interview. On cross-examination, Wakefield confirmed that P.G. commented during her recorded interview that defendant "touched [her] boobs," but Wakefield was not asked about any statements involving an intrusion into P.G.'s vagina.

¶ 17 Defendant's remaining witnesses laid the foundation for his theory as to P.G.'s motive for making false allegations. Bryan Buck, the former principal at P.G.'s elementary school, testified that P.G.'s attendance improved while defendant was living with P.G.'s family. Rose Gossmeyer, an investigator with the Department of Children and Family Services, testified that she investigated P.G.'s family regarding a January 2004 report that defendant was striking the female children with a belt. Linda Ibarra, defendant's sister-in-law, testified that she lived on the same street as P.G.'s family when defendant's alleged criminal acts took place. Linda first learned of P.G.'s allegations soon before defendant was scheduled to be released from prison. After learning of the allegations, Linda asked P.G. what happened. Linda testified, "[P.G.] just said that [defendant] touched her." Although P.G. pointed to her lower region, she did not give Linda any more details.

¶ 18 Defendant testified on his own behalf. He explained that P.G. and her sister "had no discipline" when he first moved in with the family. Defendant began enforcing rules, such as making sure the girls went to school and preventing them from watching television until they completed their homework and chores. Defendant testified that the girls did not respond well to being grounded, so he eventually resorted to disciplining them physically. He acknowledged that he threatened them with the use of a belt and that he once used a belt to strike P.G.'s sister. However, defendant denied that he ever abused P.G. sexually. When asked whether P.G. ever cried during the night, defendant testified that there were several occasions when P.G. and her sister stayed up late watching scary movies. According to defendant, P.G.'s crying was the result of nightmares.

¶ 19 The State called P.G.'s sister on rebuttal. She denied that there was ever a time when P.G. cried because of nightmares.

¶ 20 During closing arguments, with respect to P.G.'s testimony, the prosecutor argued, "[w]hat did [P.G.] tell you? She told you that on different occasions he put his penis in her mouth. He rubbed his penis between her butt cheeks and touched her anus, her butt hole. And he ran his fingers over her vagina into the crack. That's what she told you." The prosecutor then read from the jury instruction defining "sexual penetration," which was a near-verbatim recitation of the statutory definition set forth above (see supra ¶ 7). Regarding the second charge in the indictment, the prosecutor argued in relevant part:

"To sustain the charge of predatory criminal sexual assault of a child, finger into the vagina, the State must prove the following propositions. * * *
First proposition, defendant knowingly committed an act of sexual penetration with [P.G.]. Remember, that prior sexual penetration instruction is any contact, however slight.
He rubbed his finger into her vagina. He didn't have to penetrate all the way. We've met our burden on that one folks."

¶ 21 Defense counsel's argument was focused on P.G.'s inconsistencies and motivation for lying. Although counsel briefly discussed P.G.'s allegation that defendant's hand "came in contact" with her vagina, there was no specific reference to the jury instruction defining "sexual penetration."

¶ 22 The jury deliberated and found defendant guilty of all three counts. Defendant was sentenced to a 25-year term of imprisonment on each count, to be served consecutively. On direct appeal, defendant contended that (1) the trial court erred in admitting his aggravated-criminal-sexual-abuse conviction (2) several comments made by the prosecution amounted to prosecutorial misconduct; and (3) the trial court abused its discretion in determining his sentence. In Guerrero I , we affirmed defendant's conviction and sentence.

¶ 23 B. Postconviction Proceedings

¶ 24 In June 2011, defendant filed a pro se petition for postconviction relief. One of the issues raised was whether his appellate counsel was ineffective on direct appeal for failing to challenge the sufficiency of the evidence. The trial court summarily dismissed defendant's petition, ruling that the issues raised were forfeited. Defendant filed a motion to reconsider, which the trial court denied, and defendant appealed.

¶ 25 In Guerrero II , defendant argued that his appellate counsel was ineffective on direct appeal for failing to challenge the sufficiency of the evidence, specifically with respect to the second count in the indictment. In response, the State first argued that defendant forfeited the issue, because his pro se petition did not specifically challenge the evidence of "sexual penetration." We rejected the State's forfeiture argument, holding that the specificity of defendant's claim "represent[ed] a 'borderline' question which, under a liberal construction, should be resolved in defendant's favor." Guerrero II , 2013 IL App (2d) 111161-U, ¶ 22 (citing People v. Hodges , 234 Ill. 2d 1, 21, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) ).

¶ 26 On the merits, the parties compared the evidence in this case to the evidence in People v. Bell , 234 Ill. App. 3d 631, 175 Ill.Dec. 659, 600 N.E.2d 902 (1992). See Guerrero II , 2013 IL App (2d) 111161-U, ¶¶ 25-28. Because in this appeal the parties are once again disputing the application of Bell , we will provide a brief summary of that case.

¶ 27 1. Bell

¶ 28 Bell involved crimes against two different victims. Applying the well-known standard of review for challenges to the sufficiency of the evidence, established in People v. Collins , 106 Ill. 2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985), the Bell court came to a different conclusion with respect to each victim. Regarding the first victim, the court found "ample evidence" to establish proof of "sexual penetration" where the victim testified that the defendant " 'handled' and 'rubbed' her vagina." Bell , 234 Ill. App. 3d at 636, 175 Ill.Dec. 659, 600 N.E.2d 902.

¶ 29 The second victim similarly testified that the defendant "rubbed" her vagina with his finger, and a police officer testified to the victim's statement that the defendant "felt" her vagina. The Bell court noted that, "[i]f these statements were the only evidence in the record concerning penetration, we would deem them sufficient to affirm the defendant's conviction under the Collins standard, in view of the fact that the jury is entitled to draw reasonable inferences from the evidence, including an inference of penetration." Id. However, unlike the first victim, the second victim was specifically asked, " 'did he rub you or put his finger in you? What exactly did he do?" The victim responded, " 'Rubbed it.' " The Bell court held in relevant part:

"While, as noted above, the jury is entitled to draw inferences from the evidence, such inferences must be reasonable. Although under other circumstances a jury might reasonably infer that an act of penetration occurred based on the testimony that defendant rubbed and felt [the second victim's] privates, such an inference is not reasonable where [the second victim's] answer to the specific question of whether any penetration took place was implicitly negative . We hold, therefore, that there was insufficient evidence of penetration of [the second victim] and [the defendant] was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault upon [the second victim]." (Emphasis added.) Id. at 637, 175 Ill.Dec. 659, 600 N.E.2d 902.

¶ 30 2. Guerrero II

¶ 31 Returning to this case, in Guerrero II , the State argued that P.G.'s testimony was analogous to that of the first victim in Bell , while defendant argued that P.G.'s testimony was closer to that of the second victim. Defendant pointed specifically to the exchange on cross-examination regarding the statements that P.G. had purportedly made to investigators before trial:

"[DEFENSE COUNSEL]: Isn't it true that you said that his fingers went in a little bit?
A. No. That was like another night, he put his d*** almost in my vagina-or he tried to, but I screamed."

We agreed with defendant, holding in pertinent part:

"Like Bell , while we recognize that a jury may reasonably infer penetration, such an inference is not reasonable when the victim's answer to a specific question regarding penetration was implicitly negative. [Citation.] Here, the victim's answer to defense counsel's question was implicitly negative in that, although defendant touched her 'by the crack' of her vagina, the victim testified that defendant did not penetrate her vagina with his finger." Guerrero II , 2013 IL App (2d) 111161-U, ¶ 28.

¶ 32 Accordingly, we held that defendant's pro se petition sufficiently alleged the gist of a constitutional claim. However, we expressed no opinion as to whether defendant's claim would ultimately prevail. We therefore reversed the trial court's summary dismissal and remanded the matter for second-stage postconviction proceedings. Id. ¶ 30.

¶ 33 3. Second-Stage Postconviction Proceedings

¶ 34 On remand, defendant's appointed postconviction counsel filed an amended petition and a second amended petition. Although the second amended petition raised numerous issues that were not discussed in Guerrero II , a significant portion was devoted to the issue of whether appellate counsel was ineffective for failing to challenge the sufficiency of the evidence with respect to the second count in the indictment. The State moved to dismiss the second amended petition, arguing that, "[u]pon review of the entire record, not just portions that are presented by [defendant], this claim should be dismissed as there is sufficient evidence to support the conviction as to Count II." Following a hearing, the trial court granted the State's motion to dismiss, holding as follows:

"In his petition, [defendant] asserts that appellate counsel failed to raise the issue of the sufficiency of the evidence. However, a review of the matter reveals that [defendant] has not established that he was prejudiced by the actions of his appellate counsel. Merely asserting that appellate counsel should have raised this issue does not establish prejudice. My review of the lengthy record of proceedings shows that there was sufficient evidence presented, even if some areas of the evidence were disputed. Thus, even if counsel had decided to raise that issue, there is no evidence that the outcome of these proceedings would have been any different."

¶ 35 Defendant now timely appeals.

¶ 36 II. ANALYSIS

¶ 37 As we have discussed, defendant's sole contention is that his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence with respect to the second count in the indictment. However, rather than remand the matter for further postconviction proceedings, defendant asserts that we should simply reverse the conviction and vacate the corresponding sentence. According to defendant, "[t]his outcome comports with the purely legal nature of the issue and serves the interest of judicial economy."

¶ 38 The State counters by arguing that, contrary to our holding in Guerrero II , P.G. did not implicitly reject a specific question as to whether there was a digital intrusion. Thus, the State maintains that the evidence was indeed sufficient to sustain a conviction on the second count. The State next argues that, even if we agree with defendant on the merits, the proper remedy is to remand the matter for further postconviction proceedings.

¶ 39 A. Merits

¶ 40 The Post-Conviction Hearing Act creates a three-stage process for the adjudication of postconviction petitions. People v. Harris , 224 Ill. 2d 115, 125, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007). At the first stage, the trial court must review the petition within 90 days of its filing and determine whether it is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012); see also People v. Allen , 2015 IL 113135, ¶ 24, 392 Ill.Dec. 307, 32 N.E.3d 615 (explaining that a first-stage dismissal is inappropriate if a petition alleges sufficient facts to state the "gist of a constitutional claim"). If the petition is not summarily dismissed at the first stage, it advances to the second stage, where an indigent petitioner is entitled to appointed counsel, the petition may be amended, and the State may answer or move to dismiss the petition. 725 ILCS 5/122-4 (West 2012). At the second stage, the petitioner bears the burden of making a "substantial showing of a constitutional violation." People v. Domagala , 2013 IL 113688, ¶ 35, 370 Ill.Dec. 1, 987 N.E.2d 767. In other words, the petitioner must show that he would be entitled to relief if his well-pleaded allegations of a constitutional violation are proved true. For purposes of second-stage proceedings, the petitioner's allegations are taken to be true unless they are affirmatively refuted by the record. Id. If the petition advances to the third stage, the trial court must conduct an evidentiary hearing and enter any appropriate orders with respect to the conviction or sentence in the former proceedings. 725 ILCS 5/122-6 (West 2012).

¶ 41 When a postconviction petition is dismissed without an evidentiary hearing, we apply the de novo standard of review. People v. Sanders , 2016 IL 118123, ¶ 31, 399 Ill.Dec. 732, 47 N.E.3d 237.

¶ 42 Here, we are reviewing the second-stage dismissal of defendant's claim that he received ineffective assistance of counsel on direct appeal. To prevail on such a claim, a defendant must satisfy the two-prong test established in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also People v. Easley , 192 Ill. 2d 307, 328, 249 Ill.Dec. 537, 736 N.E.2d 975 (2000) (applying Strickland to test the adequacy of appellate counsel). First, it must be shown that counsel's performance fell below an objective standard of reasonableness. Second, it must be shown that counsel's performance was prejudicial, meaning that there is a reasonable probability that the result of the proceeding would have been different absent counsel's deficient performance. Strickland , 466 U.S. at 691-94, 104 S.Ct. 2052.

¶ 43 "Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." Easley , 192 Ill. 2d at 329, 249 Ill.Dec. 537, 736 N.E.2d 975. Here, defendant argues that appellate counsel should have challenged the sufficiency of the evidence with respect to the second count in the indictment.

¶ 44 When a defendant challenges the sufficiency of the evidence, it is not the function of this court to retry him. Collins , 106 Ill. 2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (adopting Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). Rather, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Id. at 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). A reviewing court will not substitute its judgment for that of the fact finder on questions regarding the weight to be given a witness's testimony, the credibility of the witnesses, the resolution of inconsistencies and conflicts in the evidence, and the reasonable inferences to be drawn from the testimony. People v. Sutherland , 223 Ill. 2d 187, 242, 307 Ill.Dec. 524, 860 N.E.2d 178 (2006).

¶ 45 Applying these standards to the instant case, to survive the second stage of the postconviction proceedings, defendant needed to make a substantial showing that (1) his appellate counsel's failure to challenge the sufficiency of the evidence with respect to the second count in the indictment was objectively unreasonable and, (2) absent this failure, his conviction would have been reversed on direct appeal. See People v. Meeks , 2016 IL App (2d) 140509, ¶ 4, 402 Ill.Dec. 357, 51 N.E.3d 1109. We hold that defendant has satisfied both of these requirements.

¶ 46 At the crux of this appeal is our holding in Guerrero II , that P.G. gave an "implicitly negative" response to a "specific question regarding penetration." Guerrero II , 2013 IL App (2d) 111161-U, ¶ 28. We note that our holding in this respect was judicial dictum , not mere obiter dictum . Although it was not essential to our ruling that defendant's pro se petition stated the gist of a constitutional claim, it was nonetheless an expression of an opinion on an issue that was briefed by the parties and " 'deliberately passed upon' " by this court. See Lebron v. Gottlieb Memorial Hospital , 237 Ill. 2d 217, 236-37, 341 Ill.Dec. 381, 930 N.E.2d 895 (2010). The fact that Guerrero II involved the first-stage dismissal of defendant's pro se petition played no role in our determination that, pursuant to Bell , P.G. gave an "implicitly negative" response. That decision is therefore "entitled to much weight and should be followed unless found to be erroneous." Id. at 237, 341 Ill.Dec. 381, 930 N.E.2d 895.

¶ 47 The State maintains that our holding was incorrect, asserting that P.G. was asked only whether she had previously told investigators that defendant put his fingers in her vagina on the first night of the abuse . The State argues that, unlike the second victim in Bell , P.G. was never asked the specific question of whether there was, in fact, a digital intrusion into her vagina. As set forth above, the testimony in dispute appears in the record as follows:

"[MS. CHUFO (DEFENSE COUNSEL) ]: That was it? When you were interviewed by those two men that came to your apartment, isn't it true that you told them that he also put his fingers in your vagina that first night?
A. They were closed, yeah. Yeah.
Q. When you say they were closed-
A. Like this, like by the crack.
Q. Isn't it true that you said that his fingers went in a little bit?
A. No. That was like another night, he put his d*** almost in my vagina-or he tried to, but I screamed."

¶ 48 The State argues that, because of the way defense counsel's questions were phrased, P.G.'s answer is ambiguous and subject to three reasonable interpretations. First, as we concluded in Guerrero II , P.G. might have implicitly denied that there was a digital intrusion. Second, P.G. might have denied that she told investigators that there was a digital intrusion. Third, P.G. might have simply denied that there was a digital intrusion on the first night of the abuse. The State suggests that the third interpretation carries an additional inference-that there was, in fact, a digital intrusion on a different night. The State concludes by arguing that, after her initial "No," P.G.'s second sentence "appears to resolve the ambiguity in favor of the proposition that the digital intrusion did not occur during the first incident with [defendant]. Yet, the jury, who saw and heard [P.G.], was in the better position to determine the tone and manner of [P.G.] to best put her answer in appropriate context."

¶ 49 The State has not persuaded us that our holding in Guerrero II was incorrect. A reviewing court must allow all reasonable inferences from the record in favor of the prosecution, but it may not allow unreasonable inferences. People v. Cunningham , 212 Ill. 2d 274, 280, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). Thus, "if only one conclusion may reasonably be drawn from the record, a reviewing court must draw it even if it favors the defendant." Id. Here, regardless of how defense counsel's questions were phrased, it remains that P.G. was asked a specific question about a digital intrusion. The only reasonable inference to be taken from her response is that she implicitly denied that any such intrusion took place.

¶ 50 To begin, there is no merit to the State's suggestion that P.G. was implying that she had been digitally intruded on some night other than the first night of her abuse. Reading P.G.'s initial answer, "No," in isolation, it might be reasonable to conclude that P.G. was denying having told investigators that there was a digital intrusion, whether on the first night or some other night. However, by going on to state, "[t]hat was like another night, he put his d*** almost in my vagina-or he tried to, but I screamed," P.G. was clearly addressing defendant's actual conduct, not just what she had told investigators about defendant's conduct. We therefore follow our holding in Guerrero II , that P.G. gave an "implicitly negative" response to a "specific question regarding penetration." Guerrero II , 2013 IL App (2d) 111161-U, ¶ 28.

¶ 51 However, even if we were to conclude that P.G. did not implicitly deny having been digitally intruded, we agree with defendant that there was no other evidence to establish a digital intrusion. Arguing to the contrary, the State points to the following testimony from P.G. on direct examination, which was accompanied by a hand gesture:

"[MR. REIDY (PROSECUTOR) ]: Let's take a deep breath. The first time your clothes were off, what, if anything, did he-did [defendant] do to you to start off with? You said he touched where?
A. My boobs. He started going down to the vagina.
Q. Where on your vagina did he touch you?
A. Like by the crack.
MR. REIDY: If the record could reflect she's indicated in between her fingers, it would be I guess the crevice or the crack of the fingers.
THE COURT: Yes, record may so reflect."

¶ 52 The State argues that the jury was in the best position to interpret P.G.'s hand gesture and consider it in conjunction with her testimony that defendant touched her "by the crack." Defendant counters that P.G.'s testimony and accompanying gesture are subject only to one reasonable interpretation: that defendant's finger touched the "crevice" or "crack" of her vagina. Defendant argues that, under Maggette , this is not sufficient to establish an "intrusion" under the definition of "sexual penetration." We agree with defendant.

¶ 53 The victim in Maggette testified that she remembered telling a police officer that the defendant touched her "vaginal area" over her panties and jumpsuit. She then added, " 'I remember him caressing me through my-to my knowledge it was-my panties was still up but he was just rubbing and caressing me through-he got underneath my panties-and I felt underneath my panties and in my vagina area and through it just right through it and his fingers going underneath it.' " (Emphasis in original.)

Maggette , 195 Ill. 2d at 352, 254 Ill.Dec. 299, 747 N.E.2d 339. Our supreme court vacated the defendant's conviction of criminal sexual assault, holding that the victim's "brief and vague reference to her vaginal area" was not sufficient to prove an "intrusion." Id.

¶ 54 Here, P.G.'s testimony establishes only that defendant touched her in her vaginal area. The prosecutor described P.G.'s hand gesture by indicating that P.G. pointed to the "crevice" or "crack" that was "in between her fingers." Arguably, this could be viewed as describing an intrusion, however slight. However, the prosecutor's description came on the heels of his question as to where P.G. was touched "on" her vagina and P.G.'s response that she was touched "by the crack." Moreover, when P.G. used the same hand gesture during cross-examination, she reiterated that her fingers were "closed." Pursuant to Maggette , this evidence was insufficient to prove an "intrusion." See also People v. Garrett , 281 Ill. App. 3d 535, 545, 217 Ill.Dec. 337, 667 N.E.2d 130 (1996) (reversing the defendant's conviction of criminal sexual assault based on anal penetration, holding that "[t]he touching of the anus on the outside by a finger of a person is insufficient to support a conviction for criminal sexual assault").

¶ 55 We acknowledge that we must give due consideration to the fact that the jury was in the best position to consider P.G.'s testimony and accompanying hand gesture. See People v. Gharrett , 2016 IL App (4th) 140315, ¶ 25, 403 Ill.Dec. 278, 53 N.E.3d 332. However, we cannot overlook that the prosecutor misled the jury during closing arguments.

¶ 56 First, the prosecutor characterized P.G.'s testimony as though she had claimed that defendant "ran his fingers over her vagina into the crack" and "rubbed his finger into her vagina." However, our thorough review of the transcript reveals that P.G. never gave any such testimony. Rather, as we have explained, she testified that defendant's hand came "in contact" with her vagina and that he "touched" her "by" her "crack."

¶ 57 Second, compounding the mischaracterization of P.G.'s testimony, the prosecutor misstated the legal principle established in Maggette . As noted, the prosecutor read from the jury instruction defining "sexual penetration," which closely mirrored the statutory definition set forth above (see supra ¶¶ 7, 21). In arguing that the evidence was sufficient to prove that defendant placed his finger into P.G.'s vagina, the prosecutor told the jury, "[r]emember, that prior sexual penetration instruction is any contact, however slight. * * * We've met our burden on that one folks." This was an incorrect statement of the law, as the State was required to prove that there was an intrusion , however slight, of defendant's finger into P.G.'s vagina. See 720 ILCS 5/12-12(f) (West 2004); Maggette , 195 Ill. 2d at 349-50, 254 Ill.Dec. 299, 747 N.E.2d 339.

¶ 58 For all of these reasons, we hold that the State's evidence was insufficient to sustain a conviction of predatory criminal sexual assault of a child based on defendant's placing his finger into P.G.'s vagina. Thus, it follows that defendant's second amended postconviction petition made a substantial showing of a constitutional violation as to his appellate counsel's failure to raise the issue on direct appeal.

¶ 59 B. Relief

¶ 60 Having determined that the State's evidence was insufficient to establish the element of "sexual penetration" (finger into the vagina of P.G.), we must determine the proper relief. Defendant asks that we reverse his conviction on count II

or, in the alternative, remand for third-stage postconviction proceedings. The State, citing People v. Russell , 345 Ill. App. 3d 16, 22, 280 Ill.Dec. 32, 801 N.E.2d 977 (2003), argues that "the only appropriate remedy is for the cause to proceed in accordance with sections 122-5 and 122-6 of the [Post-Conviction Hearing] Act."

¶ 61 We disagree with both defendant and the State. The posture of this case is the same as it would have been on direct appeal had defendant challenged the sufficiency of the evidence. We have all the power granted to a reviewing court pursuant to Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967) (formerly codified at section 121-9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1965, ch. 38, ¶ 121-9). The State's reliance on Russell is misplaced. In Russell , the defendant claimed in his postconviction petition that his plea of guilty was involuntary because the trial court failed to admonish him that his sentence included a period of mandatory supervised release. The appellate court reversed the trial court's summary dismissal and concluded that the only appropriate remedy was to remand for docketing of the defendant's petition for second-stage proceedings. Russell , 345 Ill. App 3d at 22, 280 Ill.Dec. 32, 801 N.E.2d 977. The Russell court noted that a court has no authority to strike the mandatory supervised release period and that the State has no right to offer to withhold such period. Id.

¶ 62 In the instant case we have determined that the evidence was insufficient to sustain defendant's conviction on count II. Further hearing is unnecessary and would be a waste of judicial time and resources. See People v. Jimerson , 166 Ill. 2d 211, 230-31, 209 Ill.Dec. 738, 652 N.E.2d 278 (1995). Although the evidence was insufficient to prove the element of sexual penetration for predatory criminal sexual assault of a child ( 720 ILCS 5/12-14.1(a)(1) (West 2004) ), the evidence clearly established that defendant was guilty of the lesser-included offense of aggravated criminal sexual abuse (id. § 12-16(c)(1)(i) ). A person commits aggravated criminal sexual abuse if that person is 17 years of age or older and commits an act of sexual conduct with a person under the age of 13. Id. " 'Sexual conduct' means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused * * * for the purpose of sexual gratification * * * of the victim or the accused."Id. § 12-12(e). Our supreme court in People v. Kennebrew , 2013 IL 113998, ¶ 47, 371 Ill.Dec. 297, 990 N.E.2d 197, concluded that, under the charging-instrument approach, "the uncharged offense of aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault."

¶ 63 We recognize that neither party requested a lesser-included-offense instruction at trial and that neither party has suggested on appeal that we invoke our power to reduce the degree of the offense of which defendant has been convicted ( Ill. S. Ct. R. 615(b)(3) (eff. Jan. 1, 1967) ). However, forfeiture is not a concern, as the appellate court's power to reduce the degree of the offense is separate and apart from the power to reverse a conviction. Parties certainly have the right to request such relief, but reviewing courts have historically invoked the power sua sponte . See, e.g. , People v. Ellis , 107 Ill. App. 3d 603, 62 Ill.Dec. 882, 437 N.E.2d 409 (1982) (murder conviction reduced sua sponte to voluntary manslaughter); People v. Coleman , 78 Ill. App. 3d 989, 34 Ill.Dec. 510, 398 N.E.2d 185 (1979) (armed robbery conviction reduced sua sponte to robbery); People v. Clark , 70 Ill. App. 3d 698, 27 Ill.Dec. 144, 388 N.E.2d 1107 (1979) (aggravated battery conviction reduced sua sponte to battery); People v. O'Neil , 50 Ill. App. 3d 900, 8 Ill.Dec. 871, 365 N.E.2d 1333 (1977) (rape conviction reduced sua sponte to attempted rape where evidence was insufficient to prove penetration); People v. Goolsby , 45 Ill. App. 3d 441, 4 Ill.Dec. 38, 359 N.E.2d 871 (1977) (murder conviction reduced sua sponte to voluntary manslaughter); People v. Plewka , 27 Ill. App. 3d 553, 327 N.E.2d 457 (1975) (indecent-liberties-with-a-child conviction reduced sua sponte to contributing to the sexual delinquency of a child); People v. Borden , 84 Ill. App. 2d 442, 228 N.E.2d 248 (1967) (burglary conviction reduced sua sponte to attempted burglary); People v. Kurtz , 69 Ill. App. 2d 282, 216 N.E.2d 524 (1966) (conviction of theft of property exceeding $150 in value reduced sua sponte to conviction of theft of property not exceeding $150 in value), aff'd in par &, rev'd in part , 37 Ill. 2d 103, 224 N.E.2d 817 (1967).

¶ 64 In each of these cases, the appellate court, apparently without the request of either party, exercised the power provided by Rule 615(b)(3). In Kurtz , the supreme court noted that "[t]he authority of the appellate court to reduce the degree of the offense of which these defendants stood convicted is clear." Kurtz , 37 Ill. 2d at 111, 224 N.E.2d 817.

¶ 65 Notably, in Bell , 234 Ill. App. 3d at 637, 175 Ill.Dec. 659, 600 N.E.2d 902, one of the cases cited in defendant's own brief, the appellate court reduced the defendant's conviction sua sponte from aggravated criminal sexual assault to aggravated criminal sexual abuse, because the State had not proven penetration but had proven an act of sexual conduct.

¶ 66 Kennebrew is instructive here. There, this court found that the State had not proven sexual penetration and we reversed one of the defendant's convictions of predatory criminal sexual assault of a child. People v. Kennebrew , No. 2-09-0754 (2011) (unpublished order under Illinois Supreme Court Rule 23 ). The supreme court denied the State's petition for leave to appeal but issued a supervisory order directing this court "to consider whether the evidence was sufficient to sustain a conviction on the lesser-included offense of aggravated criminal sexual abuse." Kennebrew , 2013 IL 113998, ¶ 13, 371 Ill.Dec. 297, 990 N.E.2d 197. Following the supreme court's directive, though we found that the State had forfeited the argument, we considered the case on the merits. People v. Kennebrew , 2012 IL App (2d) 090754-U. Affirming our judgment, the supreme court noted: " '[S]tate and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of a judgment on a lesser-included offense.' " Kennebrew , 2013 IL 113998, ¶ 21, 371 Ill.Dec. 297, 990 N.E.2d 197 (quoting People v. Knaff , 196 Ill. 2d 460, 477-78, 256 Ill.Dec. 881, 752 N.E.2d 1123 (2001) ); see also Morris v. Mathews , 475 U.S. 237, 247, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) (appellate court may remedy violation of double jeopardy by modifying double-jeopardy-barred conviction to that of a lesser included offense that is not so barred).

¶ 67 At oral argument, we asked the parties why, if we were to agree with defendant that penetration had not been proven, we should not simply reduce defendant's conviction on count II to aggravated criminal sexual abuse. Defendant acknowledged that the evidence clearly established that he had touched P.G. on her vagina on approximately 10 occasions, but he argued that aggravated criminal sexual abuse has additional elements: "sexual gratification," "force or threat of force," and inability to "understand or consent." The State refused to concede that penetration had not been proven. Neither "force or threat of force," nor inability to "understand or consent," are elements of aggravated criminal sexual abuse based on the respective ages of the defendant and the victim. As our supreme court held in People v. Kolton , 219 Ill. 2d 353, 361-73, 302 Ill.Dec. 386, 848 N.E.2d 950 (2006), and Kennebrew , 2013 IL 113998, ¶¶ 33-36, 371 Ill.Dec. 297, 990 N.E.2d 197, the element of "sexual gratification or arousal" can reasonably be inferred where the indictment alleges "sexual penetration." In the instant case, as in Kolton and Kennebrew , there are no missing elements for purposes of modifying defendant's conviction on count II. Additional briefing is unnecessary.

¶ 68 In answer to the defendant's forfeiture argument in Kennebrew , the supreme court stated that "it would be unjust for the defendant to obtain an acquittal, after the jury found him guilty of the greater offense, merely because the trial court erred in failing to find the evidence insufficient to sustain a conviction of the greater offense." Kennebrew , 2013 IL 113998, ¶ 24, 371 Ill.Dec. 297, 990 N.E.2d 197.

¶ 69 The dissent contends that we are "disrupting the natural course of our adversarial system" by invoking our broad authority under Rule 615(b)(3)sua sponte. Infra ¶82. At oral argument, when questioned regarding relief, the State explained that it did not "brief this issue on a lesser included offense" because it found no authority "on a lesser included offense in a second stage denial on an ineffective assistance of counsel argument." The State then acknowledged our authority to reduce the degree of the offense under Rule 615(b)(3). The State explained that, if we found the evidence insufficient on count II, it would ask for that relief going forward. Certainly, the dissent's point that the State could have requested this alternative relief sooner is well taken. However, the State's failure to do so in no way limits our authority to "utilize Rule 615(b)(3) to reduce the degree of a defendant's conviction." Kennebrew , 2013 IL 113998, ¶ 25, 371 Ill.Dec. 297, 990 N.E.2d 197.

¶ 70 The dissent maintains that it should be left to the State to first request a conviction of the lesser included offense, in a petition for leave to appeal to our supreme court. Where it is clear that the State's evidence proved all of the elements of the lesser offense, we see no useful purpose in requiring that step. It would be a waste of time and judicial resources. The dissent also takes issue with our observation that reviewing courts have historically invoked Rule 615(b)(3)sua sponte , suggesting that we are speculating. We noted just a few cases where a reviewing court reduced the degree of an offense even though neither party requested that relief. Supra ¶64. We reach this conclusion because those courts did not set out in their analyses that Rule 615(b)(3) relief was requested. Typically, when such relief is requested, a reviewing court says as much. See People v. Lipscomb , 2013 IL App (1st) 120530, ¶ 10, 375 Ill.Dec. 621, 997 N.E.2d 932 ; People v. Rowell , 229 Ill. 2d 82, 99, 321 Ill.Dec. 765, 890 N.E.2d 487 (2008) ; People v. Hudson , 71 Ill. App. 3d 504, 506, 28 Ill.Dec. 23, 390 N.E.2d 5 (1979) ; People v. Falkner , 61 Ill. App. 3d 84, 85, 18 Ill.Dec. 339, 377 N.E.2d 824 (1978) ; People v. Oliver , 38 Ill. App. 3d 166, 170, 347 N.E.2d 865 (1976). Fairly recently, this court invoked Rule 615(b)(3) to reduce a residential burglary conviction to burglary because the State failed to prove that the building the defendant entered was a " 'dwelling.' " People v. Roberts , 2013 IL App (2d) 110524, ¶ 10, 368 Ill.Dec. 126, 983 N.E.2d 539. We simply stated that " '[i]n its discretion, a reviewing court "may reduce the degree of an offense to a lesser[-]included offense when the evidence fails to prove the defendant guilty beyond a reasonable doubt of the greater offense." ' " Id. (quoting People v. Alsup , 373 Ill. App. 3d 745, 749, 311 Ill.Dec. 483, 869 N.E.2d 157 (2007), quoting People v. Thomas , 266 Ill. App. 3d 914, 926, 204 Ill.Dec. 437, 641 N.E.2d 867 (1994) ). We trust that our colleagues would have mentioned in their analysis whether the State or the defendant had requested Rule 615(b)(3) relief. As our supreme court stated in Kurtz , 37 Ill. 2d at 111, 224 N.E.2d 817, "[t]he authority of the appellate court to reduce the degree of the offense * * * is clear." The authority to reduce the degree of an offense under Rule 615(b)(3) serves the rights and interests of both parties, while also preserving the integrity of a jury verdict.

¶ 71 This case presents one of those situations in which a reviewing court is justified in addressing an issue not raised in the trial court, where the proper result is beyond any doubt and where an injustice might otherwise result. Given the unique facts of this case and the compelling evidence that defendant is guilty of the lesser included offense of aggravated criminal sexual abuse ( 720 ILCS 5/12-16(c)(1)(i) (West 2004) ), we modify defendant's present conviction to that lesser included offense. Also, because the trial court is in a better position than the court of review to impose appropriate punishment, we remand for sentencing on the modified conviction. See Kurtz , 37 Ill. 2d at 111-12, 224 N.E.2d 817.

¶ 72 III. CONCLUSION

¶ 73 For the reasons stated, we reverse the dismissal of defendant's postconviction petition. We hold that defendant was not proven guilty of predatory criminal sexual assault of a child as alleged in count II but was proven guilty of aggravated criminal sexual abuse, and his conviction is so modified. The case is remanded for resentencing on count II.

¶ 74 As defendant was successful in this appeal, we decline the State's request for costs associated with this appeal. See 55 ILCS 5/4-2002 (West 2016).

¶ 75 Reversed; judgment affirmed as modified.

¶ 76 Cause remanded with directions.

Justice Jorgensen specially concurred, with opinion.

Justice Hutchinson concurred in part and dissented in part, with opinion.

¶ 78 I concur that the evidence did not support a finding of predatory criminal sexual assault of a child on count II. I also, reluctantly, extend my concurrence to the decision to enter a conviction on the lesser included offense of aggravated criminal sexual abuse ( 720 ILCS 5/12-16(c)(1)(i) (West 2004) ) despite the absence of any such request from the State . Indeed, the State never charged defendant with the lesser included offense, submitted a lesser-included-offense jury instruction, or argued for entry of a lesser-included-offense conviction in this appeal. Yet, having reversed the conviction of the greater offense here, the proper remedy is charted by the majority decision in Kennebrew . I agree that we must follow those dictates and, so, I concur. I write separately simply to point out that the points raised by Justice Theis in her Kennebrew dissent, and echoed by my colleague Justice Hutchinson in her dissent here, still ring true.

¶ 80 I dissent only because I would not enter a conviction of a lesser included offense absent a request from the State. I would grant defendant's requested relief and place the onus on the State to raise the issue for the first time in a petition for leave to appeal to our supreme court. There is no dispute that we have the authority to reduce the degree of a criminal conviction under Rule 615(b)(3). However, by invoking this authority sua sponte , the majority has taken it upon itself to correct the State's oversight. By contrast, I am hard-pressed to think of a case where a reviewing court has been so charitable toward a criminal defendant.

¶ 81 Despite multiple opportunities, the State has never once argued-or even suggested-that defendant should be convicted of aggravated criminal sexual abuse. At trial, P.G.'s testimony on the subject of digital penetration called into question the State's ability to sustain a conviction of predatory criminal sexual assault of a child. This should have prompted the State to request a jury instruction on the lesser included offense, but the State elected to stand on the greater offense charged in the indictment. On appeal in Guerrero II , given that defendant was essentially challenging the sufficiency of the evidence, the State could have made an alternative argument that the evidence was sufficient to sustain a conviction of the lesser included offense. Instead, the State simply argued that we should affirm the trial court's summary dismissal of defendant's postconviction petition. The State has now balked for a third time in this appeal, ignoring the possibility of a conviction of a lesser included offense and instead making an underwhelming argument that the only relief available to defendant is to have the matter remanded for a third-stage evidentiary hearing. And for all of this, the State is rewarded with a conviction of an offense that it repeatedly failed to recognize.

¶ 82 The majority no doubt objects to my characterization of the issue. According to the majority, the State is not being rewarded, but rather justice is being served. "This case," according to the majority, "presents one of those situations in which a reviewing court is justified in addressing an issue not raised in the trial court, where the proper result is beyond any doubt and where an injustice might otherwise result." Supra ¶71.

¶ 83 I respectfully disagree that the majority has reached the "proper result" or prevented an "injustice." If the jury had properly applied the law in this case, it would have acquitted defendant on the second count of the indictment and double-jeopardy principles would have applied to bar any conviction of a lesser-included offense. See People v. Henry , 204 Ill. 2d 267, 289, 273 Ill.Dec. 374, 789 N.E.2d 274 (2003). If justice does not require judicial intervention in that instance, then why should it be any different here? The demands of justice are not altered because the jury convicted defendant based on insufficient evidence.

¶ 84 The majority cites several cases to support its assertion that reviewing courts "have historically invoked the power [to reduce the degree of a criminal conviction] sua sponte ." Supra ¶63. The majority states that, "[i]n each of these cases, the appellate court, apparently without the request of either party, exercised the power provided by Rule 615(b)(3)." Supra ¶64.

¶ 85 These statements are somewhat misleading. While it is true that in each instance the reviewing court reduced the degree of the criminal conviction, and in each instance there was no discussion of whether the State made such a request, not once was it made clear that the degree of the conviction was being reduced despite the absence of any such request. The majority is therefore speculating that these courts were acting sua sponte . Moreover, unlike in the present case, it is evident that in certain instances the lesser included offense was an issue at trial. See, e.g. , Ellis , 107 Ill. App. 3d at 612, 62 Ill.Dec. 882, 437 N.E.2d 409 (defendant was charged with lesser included offense of voluntary manslaughter); Goolsby , 70 Ill. App. 3d at 834, 26 Ill.Dec. 893, 388 N.E.2d 894 (jury was instructed on lesser included offense of voluntary manslaughter); Plewka , 27 Ill. App. 3d at 554, 327 N.E.2d 457 (jury convicted defendants of lesser included offense of contributing to sexual delinquency of child).

¶ 86 But these distinctions are beside the point. There might be a case out there where a reviewing court has truly invoked its power to reduce the degree of a criminal conviction sua sponte . The purpose of my dissent is to illustrate why we should refrain from taking such action. The majority believes that it has prevented an injustice. I disagree. "Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." Castro v. United States , 540 U.S. 375, 386, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (Scalia, J., concurring in part and concurring in judgment). I fail to see how the majority has prevented an injustice in this case by disrupting the natural course of our adversarial system.

¶ 87 The majority reasons that its ruling is justified by the outcome in Kennebrew . There, "the State did not charge the defendant with aggravated criminal sexual abuse for the conduct [involving alleged sexual penetration], did not request a lesser-included offense instruction for that conduct, did not mention a possible lesser-included offense for that conduct in its response brief before the appellate court, and waited nearly a year and a half after the jury's verdicts to raise that issue in its petition for leave to appeal." Kennebrew , 2013 IL 113998, ¶ 58, 371 Ill.Dec. 297, 990 N.E.2d 197 (Theis, J., dissenting). Our supreme court's majority looked past these shortcomings and disregarded the ordinary rules of forfeiture, noting that it was within its authority to enter a supervisory order directing us to consider utilizing Rule 615(b)(3), which "provides the appellate court with broad authority to reduce the degree of a defendant's conviction." Id. ¶ 25 (majority opinion).

¶ 88 I realize that this case and Kennebrew involve the same offenses and a similar evidentiary issue, but these coincidences are irrelevant. Respectfully, I disagree with Justice Jorgensen's conclusion that Kennebrew included any dictates or that our supreme court charted the proper remedy under these circumstances. Nothing in Kennebrew suggests that a reviewing court should exercise its authority under Rule 615(b)(3)sua sponte . The lesser included offense would not have been considered in Kennebrew if the State had not raised the issue in its petition for leave to appeal from our judgment reversing the defendant's conviction. There is no indication that we risked an injustice by failing to act in the absence of the State's request.

¶ 89 It is baffling that the State would overlook the same issue in this case that it overlooked in Kennebrew . In my view, if the State wants a conviction of the lesser included offense in this case, it should resort to the same tactic it utilized in Kennebrew . The State should raise the issue for the first time in a petition for leave to appeal to our supreme court. Perhaps the outcome would be the same as in Kennebrew . Perhaps then we would receive some guidance as to whether we should be doling out justice when the State overlooks the possibility of convictions of lesser included offenses. Then again, Kennebrew involved a "very specific set of facts" ( id. ), and our supreme court might not be so generous a second time. Either way, justice requires that defendant's convictions are sought and obtained by the State.

¶ 90 In closing, I remind my colleagues that "courts are essentially passive instruments of government. We do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties." United States v. Samuels , 808 F.2d 1298, 1301 (8th Cir. 1987) (R. Arnold, J., concurring in denial of rehearing en banc ). By ignoring these precepts, the majority has relieved the State of any potentially adverse consequences that might otherwise result from its repeated oversight. Respectfully, disrupting our adversarial system for the sake of preventing a perceived injustice is not the function of this court, nor should it be.