People v. Zareski, 2017 IL App (1st) 150836

Background

Brandon Zareski was convicted of first-degree murder for shooting Jonathan Nieves; jury found him guilty and he was sentenced to 24 years. Defense evidence included a semiautomatic handgun (inoperable) found next to the victim and eyewitness IDs of Zareski by Crespo and Krystle LaBombard. Trial counsel declined a second-degree murder instruction after consulting with Zareski.
Zareski retained Scott Frankel as posttrial and direct-appeal counsel; the appellate court affirmed the conviction on direct appeal, rejecting ineffective-assistance claims on the merits (including impeachment with gang photographs).
Frankel later filed a postconviction petition on Zareski’s behalf alleging various ineffective-assistance claims (failure to suppress lineups, failure to secure second-degree instruction, failure to investigate a witness, failure to impeach with gang photos) and an actual-innocence theory based on a newly discovered eyewitness affidavit (Mandujano).
The trial court dismissed the petition at the second stage: held the gang-photo claim barred by res judicata; no valid basis to suppress lineup IDs; second-degree-instruction issue was strategic; Mandujano affidavit insufficient to make a substantial showing of actual innocence; and actual-innocence claim was not freestanding.
On appeal, Zareski argued (1) Frankel labored under a per se conflict by representing him on both direct appeal and postconviction proceedings (and alternatively an actual conflict), and (2) Frankel provided unreasonable assistance as postconviction counsel. The appellate court affirmed.

Issues

Issue	Zareski's Argument	State's Argument	Held
Whether Frankel’s dual role (direct appeal and postconviction counsel) created a per se conflict	Frankel had a per se conflict (arguing his own ineffectiveness) requiring automatic reversal	Per se conflicts are limited to three categories; no automatic reversal here	No per se conflict; analyzed as an actual conflict claim instead
Whether there was an actual conflict of interest adversely affecting representation	Frankel failed to argue certain claims (including arguing his own ineffectiveness) due to conflict	Must show a specific defect attributable to conflict; examine merits of omitted claims	No specific defect shown; omitted claims lacked merit or would not have succeeded
Whether retained postconviction counsel’s performance must be judged under Rule 651 or a different standard	Suarez interpreted to require remand regardless of merit when Rule 651 compliance is unclear	Rule 651 applies to counsel retained/appointed at the second stage; retained counsel who files initial petition is not entitled to automatic remand	Use a Strickland-like prejudice inquiry for retained postconviction counsel; no automatic-remand rule applies here
Whether Frankel provided unreasonable assistance by omitting or poorly presenting claims (e.g., suppression, impeachment, Mandujano affidavit, second-degree waiver)	Frankel failed to raise meritorious claims or choose a freestanding actual-innocence claim	Evaluate each claim’s merits and prejudice under a Strickland-like standard; many claims barred by res judicata or nonconclusive	Frankel’s performance did not prejudice Zareski under the Strickland-like standard; Mandujano affidavit not sufficiently conclusive; second-degree instruction was counsel’s strategic decision and defendant had no personal right to demand it

Key Cases Cited

People v. Pendleton, 223 Ill. 2d 458 (standard of review for second-stage dismissal) (discusses postconviction stages)
People v. Hardin, 217 Ill. 2d 289 (right to conflict-free representation in postconviction proceedings)
People v. Hernandez, 231 Ill. 2d 134 (definition and limits of per se conflicts)
People v. Taylor, 237 Ill. 2d 356 (actual-conflict analysis and requirement to show specific defect)
People v. Spreitzer, 123 Ill. 2d 1 (actual-conflict test — show specific defect attributable to conflict)