People v. Wilborn , 2011 IL App (1st) 92802 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Wilborn, 2011 IL App (1st) 092802Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSEPH WILBORN, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-09-2802
Opinion filed September 23, 2011
Modified upon denial
of rehearing February 24, 2012
Held In a prosecution for first-degree murder, defendant’s pro se
(Note: This syllabus postconviction petition alleging that his trial counsel was ineffective in
constitutes no part of failing to present the exculpatory testimony of his codefendant and that
the opinion of the court his appellate counsel was ineffective in failing to raise that issue on
but has been prepared appeal was properly dismissed as frivolous and patently without merit,
by the Reporter of the decision not to call codefendant was a product of sound trial strategy
Decisions for the based on the determination that calling codefendant would not be in
convenience of the defendant’s interest.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-22104 (02);
Review the Hon. John J. Moran, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Alan D. Goldberg, both of State Appellate
Appeal Defender’s Office, and David T. Harris, Assistant Public Defender, both
of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Douglas P. Harvath, and Sheilah C. O’Grady, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
with opinion.
Justice Palmer1 concurred in the judgment and opinion.
Justice Garcia specially concurred, with opinion.
OPINION
¶1 Following a jury trial, defendant Joseph Wilborn2 was convicted of first-degree murder.
720 ILCS 5/9-1(a)(1) (West 2000). After hearing aggravation and mitigation, defendant was
sentenced to 55 years in the Illinois Department of Corrections, 30 years for the first-degree
murder and 25 years as a firearm enhancement. Defendant’s conviction was affirmed on
direct appeal (People v. Wilbourn, No. 1-06-2088 (2008) (unpublished order under Supreme
Court Rule 23)). Defendant then filed a petition for postconviction relief in which he claimed
ineffective assistance of trial and appellate counsel. The trial court dismissed defendant’s
postconviction petition at the first stage of the proceedings, finding that: (1) the issues
presented in the petition are barred by the doctrine of res judicata; (2) defendant’s allegations
were conclusory and the petition lacked supporting documentation; and (3) the petition is
frivolous and patently without merit. Defendant now appeals, and we affirm. See People v.
Jones, 399 Ill. App. 3d 341, 359 (2010) (we may affirm the decision of the trial court on any
grounds substantiated by the record, regardless of the trial court’s reasoning).
1
Justice Robert Cahill originally sat on the panel of this appeal and participated in its
disposition. Justice Cahill passed away on December 4, 2011. Therefore, Justice Palmer will serve
in his stead and has read the briefs, record and the decision, which is the subject of the petition for
rehearing.
2
Defendant’s direct appeal records use the spelling “Wilbourn” for his last name. However,
his postconviction records, as well as his signature on his postconviction filings, use the spelling
“Wilborn” for his last name. In this decision we will use the spelling of defendant’s last name found
on his postconviction petition and records.
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¶2 I. BACKGROUND
¶3 Defendant and codefendant, Cedrick Jenkins, were arrested and charged by indictment
with the first-degree murder of Emmit Hill (victim). The trial court granted defendant’s
motion for severance and defendant’s jury trial commenced on June 12, 2006.
¶4 During opening statements, defense counsel told the jury that “you’ll see and hear from
Jenkins.” He stated that the victim had “problems” with defendant and Jenkins, and that
Jenkins “will talk to you about [their] relationship with [the victim].” He also told the jury
that the victim had approached defendant and Jenkins on the day of the shooting, accused
Jenkins of “being out and looking for him with [a] gun,” and told Jenkins that “I’ll have this
neighborhood flooded and you won’t get out.” Defense counsel further stated as follows:
“[Jenkins] will tell you what happened inside that gangway [where the victim was found
shot]. It won’t be the same story that you here from [another witness] but the facts of who
pursued, who wouldn’t let this go, who having seen what he regards as suspicious,
disregards it and it follows him through that gangway anyway ***.”
¶5 Following opening statements, the State called eight witnesses: (1) Frederick Sanders;
(2) Clarence Morgan; (3) David Parker; (4) Chicago police detective Mike Qualls; (5) Stacey
Daniels; (6) Chicago police officer Andre Bedford; (7) forensic investigator John Kaput; and
(8) Cook County medical examiner Dr. Valerie Arangelovich.
¶6 A. Frederick Sanders’s Testimony
¶7 Sanders testified that, at approximately 11:30 p.m. on July 28, 2004, he exited his
apartment building located on the 6200 block of South Michigan Avenue and walked to his
automobile where his friend, Randy Griffin, was waiting in the passenger seat. Sanders
testified that Griffin told him that he had heard “a couple of gunshots” while he was waiting.
Sanders then drove his vehicle westbound on 63rd Street to Wabash. Sanders testified that
when he turned north, he observed a person he knew by the nickname of “Moochie,” whose
real name is Samuel Richards, standing over a body lying in a gangway located near the
northeast corner of 63rd Street and Wabash. Sanders testified that he then stopped his
vehicle, exited it, and telephoned the police with his cellular telephone. While he waited for
the police to arrive, he did not observe anyone in the area with a gun, nor did he observe
Richards remove a handgun from the body. He did not observe defendant or Jenkins in the
area.
¶8 Sanders also testified that he was not friends with defendant, the victim or Jenkins. He
testified that he knew defendant because he observed him “being around the [apartment]
building.” In addition, he testified that he “knew [the victim] from the neighborhood” and
knew Jenkins because Jenkins previously resided at the apartment building.
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¶9 B. Clarence Morgan’s Testimony
¶ 10 Morgan testified that on July 28, 2004, at 11 p.m., he was standing on the South
Michigan Avenue side of Sanders’s apartment building, drinking liquor with the victim, who
was a friend of his, and with “other people,” which included Richards and a man named
David Parker. He testified that defendant, Jenkins, and a man known as “Chub” were
standing “in front” of the apartment building. He testified that he had known defendant and
Jenkins for approximately 10 years because, at one time, they both lived in the same
apartment building as him.
¶ 11 Morgan testified that “Chub” handed a hooded sweatshirt to Jenkins and the victim then
made a “smart comment” to “Chub.” Morgan testified that the victim said to “Chub,” “was
he on bullshit,” which he understood to mean, he was “up to no good at the time.” Morgan
testified that he did not hear the victim threaten defendant or Jenkins at any time on the night
of the shooting. Morgan further testified that prior to the shooting he was unaware of any
animosity between defendant, Jenkins, and the victim.
¶ 12 Morgan also testified that, after the victim made the comment to “Chub,” he observed
defendant and Jenkins walk in a westerly direction across South Michigan Avenue and
through a gangway toward Wabash. He testified that the victim followed them into the
gangway, but then he lost sight of the victim. He testified that he did not observe a handgun
on the victim. Morgan testified that, approximately one minute later, he heard five gunshots
coming from the direction of the gangway. When the victim did not return, Morgan decided
to walk to Wabash to determine if the victim had arrived at the other side of the gangway.
He testified that he walked south to 63rd Street then west to Wabash to avoid walking
through the gangway. When he arrived at the corner of 63rd Street and Wabash, he observed
the victim lying on the ground in the gangway. He also observed several people, including
Richards and Parker, standing near the victim’s body, but he did not observe defendant or
Jenkins in the area.
¶ 13 On cross-examination, Morgan testified that defendant, Jenkins, and “Chub” were
members of the “Insane Gangster Disciples” gang, while he was a member of the “Black
Gangster Disciples,” a rival gang. He testified that his gang “controlled” Sanders’s apartment
building, but after a series of arrests of Black Gangster Disciple members, defendant and
Jenkins started “hanging around” the apartment building. He further testified that the victim
had a confrontation with defendant, Jenkins, and “Chub” two weeks before the shooting
because they were trying to take over the drug sales at the building.
¶ 14 C. David Parker’s Testimony
¶ 15 Parker testified that he was a friend of the victim and that Jenkins had a “beef” with the
victim because the victim had been discussing Jenkins and Jenkins’s “parent” in the presence
of others. He testified that two days before the shooting, defendant asked Parker to tell the
victim to stop talking about Jenkins.
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¶ 16 Parker testified that at 11 p.m. on the evening of July 28, 2004, he was visiting with the
victim, Richards, Morgan, and a man by the name of Keith Wright. He testified that they
were drinking liquor and standing on the South Michigan Avenue side of Sanders’s
apartment building. He testified that defendant, Jenkins and “Chub” walked passed them.
Parker observed “Chub” remove his hooded sweatshirt and hand it to Jenkins. Parker
testified that he thought it was unusual for a person to wear a hooded sweatshirt because the
evening was “cool, but it wasn’t cool enough for a [hooded sweatshirt].” Parker denied that
he heard the victim say anything to defendant, Jenkins or “Chub” at that time.
¶ 17 Parker testified that two people began arguing across the street from the apartment
building, and he walked toward the couple to stop the argument. He testified that he then
heard seven gunshots and observed the gangway “lighting up from sparks.” Parker testified
that he noticed that the victim was no longer in the area and Morgan told him that “I think
[the victim] just followed [defendant] and [Jenkins] to the gas station.” Parker testified that
he told the group that they should run to 63rd and Wabash to find out if anyone had been
shot. He testified that when they arrived at Wabash, he observed the victim on the ground
in the gangway. Parker testified that he and Morgan then ran to the victim’s residence to
inform his family of the shooting. He testified that he did not observe a gun on the victim that
evening. Parker testified that Richards searched the victim’s pockets to ensure there were no
drugs on the victim.
¶ 18 D. Chicago Police Detective Mike Qualls’s Testimony
¶ 19 Detective Qualls testified that when he arrived at the scene at approximately 12:30 a.m.,
he did not locate a weapon near the body. He testified that he spoke with Parker the
following day, who told him that just before he heard the gunshots, he heard the victim ask
Jenkins, “What you all bitches doing with those hoodies?” He testified that after he and other
officers interviewed witnesses, an investigative alert was issued for defendant, Jenkins, and
“Chub.” Detective Qualls testified that he and other detectives were initially unable to locate
the three men.
¶ 20 E. Stacey Daniels’s Testimony
¶ 21 Daniels testified that he had been a friend of defendant’s for more than four years. He
testified that two weeks after the shooting, on August 12, 2004, he was with defendant at a
mutual friend’s home when defendant told Daniels that he “got into some problems” and that
he was in “some serious shit.” Daniels testified that defendant did not immediately explain
this remark. Daniels, defendant and Jenkins then departed from their friend’s home and
walked to Daniels’s apartment, which he shared with a man named Xavier Woolard. Daniels
testified that when they arrived at his apartment, Woolard was in the apartment along with
his girlfriend, named LaKiesha.
¶ 22 Daniels testified that he was standing on a rear porch of his apartment with defendant and
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Jenkins when defendant explained to him that he “got into it with some dude,” that there was
a shooting, and that he “had to give it to [the] n***er.” According to Daniels, defendant
explained that he was walking through a gangway and observed that the “dude was following
him.” He told Daniels that he “didn’t know what dude had or something and he thought dude
was fittin’ to do something to him” and that defendant said that he “turned around busting,”
which Daniels understood to mean shooting. Daniels testified that defendant then told him
he needed to obtain money to leave town and that he might try to “hit a lick or something like
that,” which Daniels understood to mean “come up on some money” or to commit a robbery.
¶ 23 After his conversation with defendant, Daniels testified that he went to a party with
Woolard, while defendant, Jenkins, and LaKeisha stayed at Daniels’s and Woolard’s
apartment. Woolard was arrested at the party for an unrelated battery offense and Daniels
then returned to his apartment.
¶ 24 F. Chicago Police Officer Andre Bedford’s Testimony
¶ 25 Officer Bedford testified that he arrested Woolard at the party. Following the arrest,
Woolard told him that there were two people, nicknamed “Little Joe and Ced,” who were at
his apartment and were wanted on murder charges. Woolard then consented to a search of
his apartment. Officer Bedford performed a police computer search of the nicknames and
discovered that “Little Joe” was a nickname for defendant and that “Ced” was a nickname
for Jenkins. Officer Bedford observed that there was an investigative alert for defendant and
Jenkins in relation to the July 28 shooting.
¶ 26 Officer Bedford testified that, at 5 a.m. the following day, he and two other police
officers conducted a search of Daniels’s and Woolard’s apartment, where they found four
individuals, defendant, Jenkins, Daniels and LaKeisha. During the search, the officers found
a 9-millimeter Glock brand handgun, loaded with two bullets, and an additional 28 bullets
in Woolard’s bedroom. The officers also searched defendant, who had one Wolf brand Luger
bullet and four “hollow point” Luger bullets in his pocket; and Jenkins, who had a 9-
millimeter High Point handgun, loaded with seven bullets, on his person.
¶ 27 G. Forensic Investigator Kaput’s Testimony
¶ 28 Forensic investigator Kaput testified that he arrived at the crime scene at approximately
10 minutes after midnight on July 29, 2004. He testified that he conducted a walk-through
of the crime scene, where he found five fired Wolf brand 9-millimeter Luger cartridge
casings and a 9-millimeter fired bullet. Kaput placed the cartridge casings and fired bullet
into individual envelopes and submitted the envelopes to the Illinois State Police crime lab.
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¶ 29 H. Assistant Cook County Medical Examiner
Dr. Valerie Arangelovich’s Testimony
¶ 30 Dr. Arangelovich testified that she performed an autopsy on the victim. She observed that
the victim had seven bullet entrance wounds and five exit wounds. She recovered two bullets
from the victim’s body and a third bullet “hanging loose in his clothes.” Dr. Arangelovich
placed the bullets into individual envelopes and submitted the envelopes to the Illinois State
Police crime lab. She concluded that the victim died from multiple gunshot wounds.
¶ 31 I. Stipulations
¶ 32 The parties stipulated that four of the five fired cartridge casings Kaput found at the
crime scene were fired from the same handgun, but not by either the Glock handgun that was
found in Woolard’s bedroom, or the High Point handgun, which was found on Jenkins,
during the search of Woolard’s apartment. However, the fifth fired cartridge casing found
at the crime scene was fired from the Glock handgun.
¶ 33 The parties further stipulated to the following: (1) the fired bullet found at the crime
scene by Kaput was not fired by the High Point handgun, but the forensic test on the bullet
was inconclusive as to whether the bullet was fired from the Glock handgun; (2) the three
bullets recovered by Dr. Arangelovich were fired from the same handgun, but not from the
Glock or High Point handgun; and (3) the fired bullet recovered by Kaput from the crime
scene was not fired by the same handgun as the three bullets recovered by Dr. Arangelovich
from the victim’s body and clothes.
¶ 34 After the State rested, defense counsel moved for a directed verdict, which was denied.
During a recess before defense counsel presented the defense, the following colloquy took
place:
“THE COURT: [Defendant], your attorney informed me that he has your co-
defendant, [Jenkins], present. And he is available. He has been interviewed. Based on
that interview, your attorney has decided that he thinks it is to your best interest not to
call this witness. He also explained to me [that] he discussed that with you. Is that
correct?
DEFENDANT: Yes, sir.
THE COURT: Do you agree with that?
DEFENDANT: Yes, sir.”
¶ 35 The defense did not call Jenkins as a witness, and defendant did not testify on his own
behalf. Defense counsel called one witness, Sergeant Cherry3, who testified that he responded
to the crime scene at midnight on July 28, 2004. He testified that when he arrived at the
3
Sergeant Cherry’s first name does not appear in the record.
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scene two men flagged him down. He observed two other men kneeling next to the victim
and that approximately 60 other people were in the area near the victim. He testified that he
asked several people, including Richards, to stay to speak with detectives. He testified that
when the detectives arrived, Richards had left the area.
¶ 36 As noted, the jury found defendant guilty of first-degree murder. The trial court sentenced
defendant to 30 years in the Illinois Department of Corrections plus 25 years for personally
discharging a firearm. Defendant appealed his conviction, which did not include a claim of
ineffective assistance of counsel. Defendant’s conviction was affirmed on direct appeal.
¶ 37 J. Defendant’s Pro Se Postconviction Petition
¶ 38 On June 16, 2009, defendant filed a pro se petition for postconviction relief, in which he
argued, inter alia, that his trial counsel was ineffective for failing to present the exculpatory
testimony of Jenkins, which would have fulfilled a promise made to the jury in defense
counsel’s opening statements that Jenkins would “tell [them] what happened inside that
gangway.” Defendant also claims that appellate counsel was ineffective for not raising the
issue on direct appeal.
¶ 39 In support of his petition, defendant attached a signed affidavit from Jenkins. Above
Jenkins’s signature is written: “Pursuant to *** 735 ILCS 5/1-109, I declare, under penalty
of perjury, that everything contained herein is true and accurate to the best of my knowledge
and belief.” The affidavit is not notarized. In his petition, defendant alleged that Jenkins’s
affidavit is “not notarized [because the] Menard Correctional Center law library refused to
do so.”
¶ 40 Jenkins stated in his affidavit that he was willing to testify at defendant’s trial and that
he would have testified that the victim followed him and defendant into the gangway and
then said to them, “G.K.D. yall some bitches” with his hand in his pocket. Jenkins stated that
he told the victim to “go about his business,” and turned to “catch up” with defendant. He
stated that the victim continued to follow them and that the victim was “talking crazy with
his hand in his pocket.”
¶ 41 Jenkins stated that he turned around “a second time” and told the victim “to go about his
business.” Jenkins stated that the victim then “acted like he was about to pull a gun out of
his pocket.” Jenkins stated that he then “pulled out” a handgun and shot at the victim once.
He stated that defendant did not know that he was armed and fled when he heard the shot.
Jenkins stated that he shot the victim two more times and then his handgun jammed. He then
“pulled out” a second handgun and fired four more shots at the victim. Jenkins stated that he
was arrested with one of the handguns that he used in the shooting and that he told police he
had discarded the second handgun. He also stated that he told an arresting police officer that
he alone shot the victim.
¶ 42 A hearing was held on defendant’s petition. On September 10, 2009, the trial court
dismissed defendant’s postconviction petition in a written order, finding that: (1) the issues
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raised in the petition were also raised on direct appeal and therefore barred by the doctrine
of res judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked
required supporting documents “such as affidavit or other sworn statements”; and (3)
defendant’s petition was frivolous and patently without merit.
¶ 43 This appeal follows.
¶ 44 II. ANALYSIS
¶ 45 Although defendant’s postconviction petition raises 15 claims of ineffective assistance
of trial and appellate counsel, we consider only those claims that defendant has raised in this
appeal. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008).
¶ 46 On appeal, defendant claims that the trial court erred in dismissing his postconviction
petition at the first stage because: (1) he raised the “non-frivolous constitutional claim[s]”
that trial counsel was ineffective for “making an unfulfilled promise to the jury to present
exonerating testimony of co-defendant Jenkins,” and that appellate counsel was ineffective
for failing to raise this issue on direct appeal; and (2) the trial court “overlook[ed] Jenkins’s
affidavit,” which supported defendant’s petition.
¶ 47 A. Standard of Review
¶ 48 A trial court’s dismissal of a postconviction petition at the first stage is reviewed de novo.
People v. Hodges, 234 Ill. 2d 1, 9 (2009); People v. Torres, 228 Ill. 2d 382, 394 (2008);
People v. Edwards, 197 Ill. 2d 239, 247 (2001); People v. Coleman, 183 Ill. 2d 366, 388-89
(1998). “A de novo review entails performing the same analysis a trial court would perform”;
in other words, we accept all well-pleaded facts in the complaint as true while disregarding
legal or factual conclusions unsupported by allegations of fact. Khan v. BDO Seidman, LLP,
408 Ill. App. 3d 564, 578 (2011).
¶ 49 B. Post-Conviction Hearing Act
¶ 50 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) provides that
a defendant may challenge his or her conviction or sentence for violations of federal or state
constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v.
Whitfield, 217 Ill. 2d 177, 183 (2005)). In a postconviction proceeding, a petitioner is not
entitled to an evidentiary hearing as a matter of right. People v. Simms, 192 Ill. 2d 348, 359
(2000). To be entitled to postconviction relief, a defendant bears the burden of showing that
he or she suffered a substantial deprivation of his or her federal or state constitutional rights
in the proceedings. 725 ILCS 5/122-1(a) (West 2008); Pendleton, 223 Ill. 2d at 471 (citing
Whitfield, 217 Ill. 2d at 183); People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Lacy, 407
Ill. App. 3d 442, 455 (2010).
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¶ 51 1. A Summary Dismissal Is Proper When Barred by Res Judicata or Forfeiture
¶ 52 A proceeding under the Act is a collateral proceeding, not an appeal from the underlying
judgment. People v. Coleman, 206 Ill. 2d 261, 277 (2002) (citing People v. Williams, 186 Ill.
2d 55, 62 (1999)); Evans, 186 Ill. 2d at 89. The purpose of the proceeding is to allow inquiry
into constitutional issues relating to the conviction or sentence that were not, and could not
have been, determined on direct appeal. Whitfield, 217 Ill. 2d at 183; Coleman, 206 Ill. 2d
at 277. Thus, all issues decided on direct appeal are barred by the doctrine of res judicata,
and all issues that could have been raised in the original proceeding, but were not, are
procedurally forfeited. People v. Taylor, 237 Ill. 2d 356, 372 (2010).
¶ 53 2. A Summary Dismissal Is Proper When a Petition
Violates Section 122-2 of the Act
¶ 54 The petition cannot consist of nonfactual and nonspecific assertions that merely amount
to conclusions that errors occurred at trial. People v. Simms, 192 Ill. 2d 348, 359 (2000)
(citing People v. Kitchen, 189 Ill. 2d 424, 433 (1999)). Rather, a petition filed under the Act
must “clearly set forth the respects in which petitioner’s constitutional rights were violated.”
725 ILCS 5/122-2 (West 2008).
¶ 55 While a pro se postconviction petition is not expected to set forth a complete and detailed
factual recitation, the petition “ ‘must set forth some facts which can be corroborated and are
objective in nature or contain some explanation as to why those facts are absent.’ ” Hodges,
234 Ill. 2d at 10 (quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)); 725 ILCS 5/122-
2 (West 2008) (a petition must have attached “affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached”). The purpose of the
“affidavits, records, or other evidence” requirement in section 122-2 of the Act (725 ILCS
5/122-2 (West 2008)) is to establish that a petition’s allegations are capable of “ ‘objective
or independent corroboration.’ ” Delton, 227 Ill. 2d at 254 (quoting People v. Hall, 217 Ill.
2d 324, 333 (2005), citing People v. Collins, 202 Ill. 2d 59, 67 (2002)). Thus, a trial court
may summarily dismiss a petition if the defendant fails to attach the required “affidavits,
records, or other evidence” or fails to explain their absence from his or her postconviction
petition. Delton, 227 Ill. 2d at 255 (“failure to either attach the necessary ‘affidavits, records,
or other evidence’ or explain their absence is ‘fatal’ to a post-conviction petition [citation]
and by itself justifies the petition’s summary dismissal” (internal quotation marks omitted)
(quoting Collins, 202 Ill. 2d at 66, citing People v. Coleman, 183 Ill. 2d 366, 380 (1998),
quoting People v. Jennings, 411 Ill. 21, 26 (1952))).
¶ 56 3. Three Stage Process for Adjudicating a Postconviction Petition
¶ 57 In noncapital cases, the Act provides a three-stage process for adjudicating a petition for
postconviction relief. 725 ILCS 5/122-1 et seq. (West 2008); Pendleton, 223 Ill. 2d at 471-
72. At the first stage, the trial court examines the petition independently and without any
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further pleadings from the defendant or any motions or responsive pleadings from the State.
People v. Brown, 236 Ill. 2d 175, 184 (2010) (citing People v. Gaultney, 174 Ill. 2d 410, 418
(1996)). The allegations in the petition, taken as true and liberally construed, need to present
the “ ‘gist of a constitutional claim.’ ” Delton, 227 Ill. 2d at 254 (quoting Gaultney, 174 Ill.
2d at 418); People v. Porter, 122 Ill. 2d 64, 74 (1988) (in order to avoid dismissal, defendant
need only present the “gist” of a constitutional claim that would provide relief under the Act).
This “gist” standard is a low threshold which requires the defendant to present only a limited
amount of detail, not the claim in its entirety or legal argument or citation to legal authority.
Hodges, 234 Ill. 2d at 9 (“[b]ecause most petitions are drafted at this stage by defendants
with little legal knowledge or training, this court views the threshold for survival as low”).
¶ 58 In considering the petition at the first stage, the trial court may examine “the trial record,
the court file of the proceeding in which the defendant was convicted, any action taken by
an appellate court in such a proceeding, any transcripts of such proceedings, and affidavits
or records attached to the petition.” People v. Diehl, 335 Ill. App. 3d 693, 700 (2002) (citing
725 ILCS 5/122-2.1(c) (West 1998)). The trial court may summarily dismiss the petition if
the allegations in the petition are positively rebutted in the record. See Coleman, 183 Ill. 2d
at 381-82 (“this court has consistently upheld the dismissal of a post-conviction petition
when the allegations are contradicted by the record from the original trial proceedings”
(citing People v. Gaines, 105 Ill. 2d 79, 91-92 (1984), and People v. Arbuckle, 42 Ill. 2d 177,
182 (1969)); see, e.g., People v. Williams, 364 Ill. App. 3d 1017, 1025 (2006) (concluding
that defendant failed to state the gist of a constitutional claim that he was unfit to plead guilty
when the record “clearly show[ed] that defendant understood the nature and purpose of the
proceedings,” informed the trial court that he understood the charges against him, did not
exhibit “irrational” behavior in court, and actively participated in the proceedings and
conferred with trial counsel).
¶ 59 4. A Summary Dismissal Is Proper When Petition Is Considered
“Frivolous or Patently Without Merit”
¶ 60 The trial court must dismiss the petition in a written order if the court finds that the
petition is “frivolous or *** patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2008).
Neither “frivolous” nor “patently without merit” is defined in the Act. However, the Illinois
Supreme Court has held that a postconviction petition is considered frivolous or patently
without merit only if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d
at 16. A petition lacking an arguable basis in law or fact is one “based on an indisputably
meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill. 2d at 16. A claim
completely contradicted by the record is an example of an indisputably meritless legal theory.
Hodges, 234 Ill. 2d at 16. Fanciful factual allegations include those that are fantastic or
delusional. Hodges, 234 Ill. 2d at 17.
¶ 61 If the trial court does not dismiss the petition as frivolous or patently without merit, then
the petition advances to the second stage. If the petition advances to the second stage, the
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trial court may appoint counsel for an indigent defendant and counsel will have an
opportunity to amend the petition. 725 ILCS 5/122-4 (West 2008). The State can file a
motion to dismiss or an answer to the petition and the trial court must then determine
whether the petition and any accompanying documentation make a substantial showing of
a constitutional violation. 725 ILCS 5/122-5 (West 2008); Edwards, 197 Ill. 2d at 246 (citing
Coleman, 183 Ill. 2d at 381). If no such showing is made, the petition is dismissed. If,
however, a substantial showing of a constitutional violation is made, the petition is advanced
to the third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6
(West 2008); Edwards, 197 Ill. 2d at 246.
¶ 62 In the case at bar, the trial court dismissed defendant’s postconviction petition at the first
stage and provided in its written order three reasons for the dismissal: (1) the issues raised
in the petition were also raised on direct appeal and therefore barred by the doctrine of res
judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked
required supporting documents such as affidavits or other sworn statements as required under
section 122-2 of the Act; and (3) defendant’s petition was frivolous and patently without
merit. However, the trial court did not specify which issues were dismissed for which reason.
Thus, we consider each of the trial court’s reasons as it applies to defendant’s claims on
appeal.
¶ 63 C. Whether Defendant’s Claims Are Barred by Res Judicata
¶ 64 First, defendant claims that the trial court erred in summarily dismissing his
postconviction petition when it found that the issues raised in the petition were barred by res
judicata.
¶ 65 In the context of a postconviction petition, res judicata bars consideration of claims that
were previously raised and decided on direct appeal. People v. Blair, 215 Ill. 2d 427, 443
(2005). Defendant’s claims of ineffective assistance of counsel were not raised on direct
appeal and, thus, cannot be barred by res judicata. Accordingly, res judicata does not bar
consideration of defendant’s claims of ineffective assistance of trial and appellate counsel.
¶ 66 D. Whether Defendant’s Petition “Lacked Supporting Documents”
¶ 67 Second, defendant claims that the trial court erred in finding that the petition “lack[ed]
supporting documentation.” The pleading requirements of the Act are found in section 122-2
(see Hodges, 234 Ill. 2d at 9), which requires that the petition “clearly set forth the respects
in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2008).
Section 122-2 also requires that “[t]he petition shall have attached thereto affidavits, records,
or other evidence supporting its allegations or shall state why the same are not attached.” 725
ILCS 5/122-2 (West 2008). As noted, defendant attached Jenkins’s affidavit, which was
signed but not notarized.
¶ 68 The State argues that although defendant attached Jenkins’s affidavit to the petition, the
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affidavit is not valid because it is not notarized. Thus, the State concludes, the trial court was
not required to consider Jenkins’s affidavit and the court properly dismissed defendant’s
postconviction petition because it lacked supporting documentation. We disagree.
¶ 69 To be considered a valid affidavit, our supreme court has held that an affidavit must be
notarized unless otherwise provided for by a specific supreme court rule or statutory
authorization. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 496 (2002). In
Roth, our supreme court explained that “ ‘[a]n affidavit is simply a declaration, on oath, in
writing, sworn to *** before some person who has authority under the law to administer
oaths.’ ” Roth, 202 Ill. 2d at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). Thus, the
supreme court concluded, statements in writing that have not been sworn to before an
authorized person cannot be considered as affidavits. Roth, 202 Ill. 2d at 494.
¶ 70 In determining the validity of Jenkins’s proposed affidavit, we find instructive a case
from the Second District of the Appellate Court, People v. Niezgoda, 337 Ill. App. 3d 593(2003). In Niezgoda, the defendant filed a pro se postconviction petition alleging ineffective
assistance of counsel and attached his own affidavit and section 122-2 supporting affidavits
from three other potential witnesses. Niezgoda, 337 Ill. App. 3d at 595. None of the affidavits
were notarized. Niezgoda, 337 Ill. App. 3d at 595. The Second District, following Roth,
found that affidavits filed pursuant to the Act must be notarized to be valid. Niezgoda, 337
Ill. App. 3d at 597. The Niezgoda court then found that “the affidavits the defendant filed had
no legal effect” because the affidavits were not notarized or sworn before a person who had
the authority to administer oaths, and, as a result, the trial court properly dismissed the
petition. Niezgoda, 337 Ill. App. 3d at 597 (citing People v. Johnson, 183 Ill. 2d 176, 191
(1998)).
¶ 71 Here, similar to the defendant’s petition in Niezgoda, Jenkins’s affidavit is not notarized
and, thus, not a valid affidavit on its face. However, in Niezgoda, the defendant appealed
from a second-stage dismissal of his petition. To support a claim of failure to present a
witness, a defendant must tender a valid affidavit from the individual who would have
testified. People v. Enis, 194 Ill. 2d 361, 380 (2000) (citing People v. Johnson, 183 Ill. 2d
176, 192 (1998), and People v. Thompkins, 161 Ill. 2d 148, 163 (1994)). Without a valid
affidavit, a reviewing court cannot determine whether the proposed witness could have
provided information or testimony favorable to the defendant. Johnson, 183 Ill. 2d at 192
(citing People v. Guest, 166 Ill. 2d 381, 402 (1995), and People v. Ashford, 121 Ill. 2d 55,
77 (1988)). After this case was initially filed, the Second District decided People v. Carr, 407
Ill. App. 3d 513 (2011). In Carr, the defendant appealed from the summary dismissal of his
pro se postconviction petition at the first stage. Carr, 407 Ill. App. 3d at 515. Relying on
Niezgoda, the Second District held that because the defendant’s section 122-1 affidavit was
not notarized, it was not valid. Carr, 407 Ill. App. 3d at 515. The court also declined to
distinguish affidavits filed pursuant to section 122-1 from the section 122-2 affidavit at issue
in Niezgoda because Niezgoda held that the notarization requirement for affidavits applies
to the entire Act. Carr, 407 Ill. App. 3d at 515. Accordingly, the court did not consider the
differing purposes of the two affidavit requirements. The court found that because the
defendant’s section 122-1 affidavit was not notarized, it was not valid and he was not entitled
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to relief. Carr, 407 Ill. App. 3d at 516.
¶ 72 Recently, in People v. Henderson, 2011 IL App (1st) 090923, Justice Lavin authored an
opinion analyzing the case based on a defendant’s failure to obtain notarization of a verifying
affidavit where defendant was imprisoned and there was no guarantee that a defendant would
be afforded the services of a notary public. Henderson, 2011 IL App (1st) 090923, ¶ 36. The
court in Henderson found that “the purposes of the Act and section 122-2.1 would be
hindered by preventing petitions which are neither frivolous nor patently without merit from
proceeding to the second stage due to the technicality at issue.” Henderson, 2011 IL App
(1st), 090923, ¶ 35. The Henderson court further found that “[a]t the second stage, the State
will have the opportunity to object to the lack of notarization” and that “appointed counsel
can assist in arranging for the notarization of the verification affidavit.” Henderson, 2011 IL
App (1st), 090923, ¶ 35. Henderson declined to follow Carr as we do.
¶ 73 E. Whether Defendant’s Petition Is Frivolous and Patently Without Merit
¶ 74 Third, defendant claims that the trial court erred when it summarily dismissed his petition
as frivolous and patently without merit. Specifically, defendant argues that he presented a
non-frivolous constitutional claim that his trial counsel was ineffective for failing to fulfill
his promise to the jury to present Jenkins’s exculpatory testimony and that appellate counsel
was ineffective for failing to raise the issue on appeal.
¶ 75 A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8. The Illinois Supreme Court has held that, to
determine whether a defendant was denied his or her right to effective assistance of counsel,
an appellate court must apply the two-prong test set forth in Strickland v. Washington, 466
U.S. 668 (1984), which the Illinois Supreme Court adopted in People v. Albanese, 102 Ill.
2d 54 (1984).
¶ 76 Under Strickland, a defendant must prove both that: (1) his attorney’s actions or inactions
constituted error(s) so serious as to fall below an objective standard of reasonableness “under
prevailing professional norms” (People v. Colon, 225 Ill. 2d 125, 135 (2007); People v.
Evans, 209 Ill. 2d 194, 220 (2004)); and (2) defense counsel’s deficient performance
prejudiced the defendant. People v. Hodges, 234 Ill. 2d at 17 (citing Strickland, 466 U.S. at
687-88). “At the first stage of postconviction proceedings under the Act, a petition alleging
ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s
performance fell below an objective standard of reasonableness and (ii) it is arguable that the
defendant was prejudiced.” Hodges, 234 Ill. 2d at 17. The failure to satisfy either the
deficiency prong or the prejudice prong of the Strickland test precludes a finding of
ineffective assistance of counsel. Strickland, 466 U.S. at 697; People v. Patterson, 192 Ill.
2d 93, 107 (2000).
¶ 77 Ineffective assistance of appellate counsel is determined under the same standard as a
claim of ineffective assistance of trial counsel. People v. Edwards, 195 Ill. 2d 142, 163
(2001) (citing People v. West, 187 Ill. 2d 418, 435 (1999)). Appellate counsel is not required
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to raise every conceivable issue on appeal, and it is not incompetence for counsel to refrain
from raising issues that counsel believes are without merit. Edwards, 195 Ill. 2d at 163-64
(citing People v. Johnson, 154 Ill. 2d 227, 236 (1993)). Accordingly, unless the underlying
issue has merit, there is no prejudice from appellate counsel’s failure to raise an issue on
appeal. Edwards, 195 Ill. 2d at 164 (citing People v. Childress, 191 Ill. 2d 168, 175 (2000)).
¶ 78 Defendant claims that it is arguable that trial counsel’s performance fell below an
objective standard of reasonableness because counsel promised the jury during his opening
statement that Jenkins would provide exculpatory testimony on defendant’s behalf, and then
failed to provide the promised testimony during trial.
¶ 79 A defendant is entitled to reasonable, not perfect, representation. People v. Fuller, 205
Ill. 2d 308, 330 (2002) (citing People v. Palmer, 162 Ill. 2d 465, 476 (1994)); West, 187 Ill.
2d at 432 (citing People v. Stewart, 104 Ill. 2d 463, 492 (1984)). Decisions concerning which
witnesses to call at trial and what evidence to present on defendant’s behalf ultimately rest
with trial counsel. People v. Munson, 206 Ill. 2d 104, 139-40 (2002); West, 187 Ill. 2d at 432
(citing People v. Ramey, 152 Ill. 2d 41, 53-55 (1992)). It is well established that these types
of decisions are considered matters of trial strategy and are generally immune from claims
of ineffective assistance of counsel. People v. Smith, 195 Ill. 2d 179, 188 (2000); West, 187
Ill. 2d at 432. “In recognition of the variety of factors that go into any determination of trial
strategy, *** claims of ineffective assistance of counsel must be judged on a circumstance-
specific basis, viewed not in hindsight, but from the time of counsel’s conduct, and with
great deference accorded counsel’s decisions on review.” People v. Fuller, 205 Ill. 2d 308,
330-31 (2002) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), and Strickland, 466
U.S. at 689). Thus, “[m]istakes in trial strategy or tactics or in judgment do not of themselves
render the representation incompetent.” (Internal quotation marks omitted.) People v.
Hillenbrand, 121 Ill. 2d 537, 548 (1988).
¶ 80 A defense counsel’s failure to provide testimony promised during opening statements is
not ineffective assistance of counsel per se. People v. Manning, 334 Ill. App. 3d 882, 892
(2002). We agree with defendant that counsel’s assistance may be ineffective if he or she
promises that a particular witness will testify during opening statements, but does not provide
the promised testimony during trial. See generally People v. Briones, 352 Ill. App. 3d 913(2009). However, we have also recognized that counsel’s decision to abandon a trial strategy
during trial may be reasonable under the circumstances and that the decision not to provide
promised testimony may be warranted by unexpected events. People v. Ligon, 365 Ill. App.
3d 109, 120 (2006). In either case, a defendant must overcome a strong presumption that the
challenged action or inaction of defense counsel may have been the product of sound trial
strategy. Evans, 186 Ill. 2d at 93; People v. Coleman, 183 Ill. 2d 366, 397 (1998); People v.
Griffin, 178 Ill. 2d 65, 73-74 (1997); see also People v. Gacy, 125 Ill. 2d 117, 126 (1988)
(“The burden of *** overcoming the presumption that an attorney’s decision is the product
of ‘sound trial strategy’ rests upon the defendant ***.”).
¶ 81 A defendant may overcome the strong presumption that defense counsel’s choice of
strategy was “sound if counsel’s decision appears so irrational and unreasonable that no
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reasonably effective defense attorney, facing similar circumstances, would pursue such a
strategy.” (Emphasis in original.) People v. King, 316 Ill. App. 3d 901, 916 (2000) (citing
People v. Faulkner, 292 Ill. App. 3d 391, 394 (1997)). “[Sound trial strategy] embraces the
use of established rules of evidence and procedure to avoid, when possible, the admission
of incriminating statements, harmful opinions, and prejudicial facts.” People v. Moore, 279
Ill. App. 3d 152, 159 (1996).
¶ 82 Here, we cannot say that defense counsel’s decision not to call Jenkins as a witness was
outside the realm of sound trial strategy. The record shows that defense counsel contemplated
calling Jenkins as a witness. However, after interviewing him, defense counsel determined
that Jenkins’s testimony would not be in defendant’s “best interest.” Defense counsel then
informed defendant and the trial judge of his decision not to call Jenkins as a witness. The
trial court discussed the matter with defendant and his counsel in open court and defendant
informed the court that he agreed with his counsel’s decision. Based on the record, defense
counsel’s decision to not call Jenkins as a witness appears to be the product of sound trial
strategy, a strategy that the defendant agreed with. See People v. Flores, 128 Ill. 2d 66, 106
(1989) (“defense counsel need not call a witness if he reasonably believes that under the
circumstances the individual’s testimony is unreliable or would likely have been harmful to
the defendant”).
¶ 83 Considering Jenkins’ affidavit in addition to the record, we still conclude that defendant
did not overcome the strong presumption that defense counsel’s decision was the product of
sound trial strategy at the time that he interviewed Jenkins.
¶ 84 The record also shows that two of the State’s witnesses, Morgan and Parker, testified that
there was animosity between defendant and Jenkins and the victim, which supported the
defense counsel’s self-defense theory. Specifically, Morgan testified that the victim was in
a gang rival to defendant’s and Jenkins’s gang. He further testified that the victim had a
confrontation with defendant and Jenkins two weeks prior to the shooting. Parker testified
that the victim had a “beef” with Jenkins. Both Morgan and Parker testified that the victim
pursued defendant and Jenkins as they were walking into the gangway. Jenkins’s purported
testimony now, as stated in his affidavit, would have not supported defendant’s theory that
he acted in self-defense. According to Jenkins’s affidavit, Jenkins would have testified that
defendant had nothing to do with the shooting and that he alone shot the victim. This was not
the theory that was presented by the defense at trial.
¶ 85 Moreover, Jenkins was a codefendant and his testimony may have been harmful to
defendant. The chance of such harm is even more likely considering that defendant
successfully moved for severed trials on the grounds that Jenkins had made statements
which, if introduced at trial, would be prejudicial to defendant. In People v. Ashford, 121 Ill.
2d 55, 75 (1988), our supreme court rejected the defendant’s postconviction petition claim
that his counsel was ineffective for not subpoenaing his codefendant to testify. The supreme
court found that subpoenaing his codefendant
“would surely have been an incomprehensible, if not utterly egregious, trial tactic ***.
Having successfully moved for severed trials on the ground that [his codefendant] had
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made statements which, if introduced at trial, would be prejudicial to him, we cannot
understand how the defendant can now fault counsel for failing to subpoena [his
codefendant].” Ashford, 121 Ill. 2d at 75.
¶ 86 In his motion for severance, defendant alleged that Jenkins “has made written and/or oral
statements implicating [him].” He further alleged that he believed that Jenkins’s defense “is
in conflict and antagonistic toward [him] and he cannot obtain a fair and impartial trial
because of the prejudice created by the inconsistent, conflicting, and antagonistic defenses.”
¶ 87 Accordingly, we cannot say that defense counsel’s decision not to call Jenkins was so
irrational or unreasonable that his performance fell below an objective standard of
reasonableness when, before trial, defendant sought to sever Jenkins’s trial from his own, and
when, during trial, defense counsel determined after interviewing Jenkins that his testimony
would not be in defendant’s best interest.
¶ 88 We find the case at bar distinguishable from the cases defendant cites where defense
counsel’s performance was deficient for failing to fulfill his promise to the jury to present
exculpatory testimony from witnesses. Defendant cites People v. Bryant, 391 Ill. App. 3d 228(2009), and People v. Briones, 352 Ill. App. 3d 913 (2004).
¶ 89 In Bryant, the Fifth District found that defense counsel was ineffective in the defendants’
joint murder case for failing to call any witnesses, who were available to testify at trial, in
support of the defense theory proffered in opening statements to the jury that the murder was
committed by others. Bryant, 391 Ill. App. 3d at 229. On review, the Bryant court found that
defense counsel’s performance was deficient because trial counsel attempted to present his
defense entirely through cross-examination of the State’s witnesses, but his questions were
repeatedly and successfully challenged by “beyond the scope” objections from the State.
Bryant, 391 Ill. App. 3d at 239. The court found that, although counsel’s decision not to call
any witnesses was a matter of trial strategy, said strategy was not reasonable, and the
resulting prejudice was not harmless, as it “appears that counsel concluded that rather than
support the defense theory with evidence that the jury might reject, it was better to not
support the theory at all.” Bryant, 391 Ill. App. 3d at 241.
¶ 90 In the case at bar, there is no indication in the record, and defendant does not argue, that
defense counsel entirely failed to support his theory of self-defense similar to the defense
counsel in Bryant. Rather, our examination of the record in this case shows that defense
counsel’s performance was not deficient because counsel exhibited an understanding of the
fundamental rules of criminal procedure, subjected the State’s witnesses to meaningful
adversarial testing, and presented a trial strategy without flawed legal arguments. People v.
Schlager, 247 Ill. App. 3d 921, 932 (1993).
¶ 91 In Briones, the Fifth District of the Appellate Court found that defense counsel’s
performance was deficient after counsel reneged on a promise to the jury during opening
statements that the defendant would testify. Briones, 352 Ill. App. 3d at 919. During trial the
defendant informed the trial court that he decided, after speaking to his trial counsel, that he
would not testify on his own behalf. Briones, 352 Ill. App. 3d at 916. On appeal, defendant
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claimed that his defense counsel’s decision for him not to testify was unsound trial strategy
and the appellate court agreed. Briones, 352 Ill. App. 3d at 918.
¶ 92 In deciding whether defense counsel’s decision constituted deficient performance, the
court recognized that it was trial counsel’s “responsibility to evidence in the record that [her
performance] was not deficient, i.e., that the determination [that defendant would not testify]
was a result of the defendant’s fickleness or of counsel’s sound trial strategy due to
unexpected events.” Briones, 352 Ill. App. 3d at 919. In its review, the court found that
defense counsel “failed to show in the record that the defendant inexplicably changed his
decision to testify or that, because of unexpected events, sound trial strategy required her to
break her promise that the defendant would testify.” Briones, 352 Ill. App. 3d at 919. As a
result, the appellate court declined to presume that defense counsel’s decision not to present
the defendant’s testimony, after promising to do so in opening statements, was the result of
sound trial strategy and thus concluded that counsel’s performance was deficient. Briones,
352 Ill. App. 3d at 919. See also People v. Tate, 305 Ill. App. 3d 607, 612 (1999) (unable to
determine “as a matter of law” whether defense counsel’s decision to not call certain
witnesses was a “professionally reasonable tactical decision” because the record did not
reflect counsel’s reasoning for the decision).
¶ 93 Here, unlike Briones and Tate, the record shows that defense counsel had a reason for not
calling Jenkins to testify–he reasonably believed that, after interviewing Jenkins, the
testimony Jenkins would provide would not be in defendant’s best interest. Defense counsel
interviewed Jenkins before presenting the testimony and, as a result of that interview,
determined that his testimony would not be in the best interest of the defendant. Defense
counsel then informed the trial court and defendant of his decision, and defendant informed
the court that he agreed with his counsel’s decision.
¶ 94 Defendant also argues that defense counsel’s “failure to present Jenkins’s exculpatory
testimony to support defendant’s otherwise uncorroborated defense amounts to ineffective
representation.” Defendant cites People v. King, 316 Ill. App. 3d 901 (2000), but we find that
case also distinguishable to the case at bar.
¶ 95 In King, the defendant was convicted of aggravated criminal sexual assault and
aggravated kidnaping for the abduction and rape of a 17-year-old passenger on the
defendant’s school bus route. King, 316 Ill. App. 3d at 903-04. Defendant maintained that
he did not rape the passenger and was never alone with her on the bus. Defendant provided
his defense counsel with the name of an alibi witness who worked as a bus attendant on
defendant’s bus and who was working on the bus on the day of the alleged rape. King, 316
Ill. App. 3d at 904. The defendant alleged that his trial counsel never interviewed the bus
attendant in preparation for trial and never called her as a witness, although she was present
at court and available to testify on the trial date. King, 316 Ill. App. 3d at 904. The bus
attendant’s affidavit stated that she was on the bus the entire time the students were riding
home and that the 17-year-old passenger was never alone on the bus with the defendant.
King, 316 Ill. App. 3d at 904.
¶ 96 This court held that defense counsel’s performance was deficient because defense
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counsel was aware of the alibi witness but failed to interview the witness at any time before
or during trial and failed to provide an explanation for failing to call or even interview the
exculpatory witness. King, 316 Ill. App. 3d at 916. We could not conceive of any sound trial
strategy for failing to do so. King, 316 Ill. App. 3d at 916.
¶ 97 Here, on the other hand, defendant does not claim in his postconviction petition that
defense counsel failed to interview Jenkins before trial commenced, nor did Jenkins state in
his affidavit that defense counsel failed to interview him prior to trial. There is no dispute
that defense counsel did interview Jenkins before presenting his defense. As a result of that
interview, defense counsel presented defendant and the trial judge with a reason for deciding
not to call Jenkins as a witness–namely, that after interviewing the witness during a recess,
he determined that calling Jenkins was not in defendant’s best interest.
¶ 98 Defendant further argues that defense counsel’s performance was deficient for failing to
interview Jenkins, a known witness, before opening statements. However, we do not find any
factual support for this argument. Defendant does not allege in his postconviction petition
that his defense counsel did not interview Jenkins before opening statements. Jenkins, in his
affidavit, also did not allege that he was not interviewed before opening statements. We also
do not find any indication in the record that Jenkins was not interviewed before opening
statements. Normally witnesses are interviewed well in advance of trial. It is also possible
for a witness to change his testimony from the time he or she was first interviewed to the
time he or she is called as a witness. However, a codefendant in a criminal trial may not
agree to an interview until his trial has been concluded. We do not know, nor does the
petition state, when Jenkins was first interviewed or what attempts were made to interview
Jenkins prior to trial.
¶ 99 The record shows that defendant’s decision not to call Jenkins as a witness, even after
promising to call him as a witness during opening statements, appears to be the product of
sound trial strategy. Considering Jenkins’s affidavit in addition to the record, we cannot say
that defendant overcame the presumption that his defense counsel’s decision not to call
Jenkins was the product of reasonable trial strategy. Since we are unable to conclude that
defense counsel’s performance arguably fell below objective standards, defendant’s claim
of ineffective assistance of trial counsel and appellate counsel must fail. Patterson, 192 Ill.
2d at 107. Accordingly, we cannot say that the trial court’s summary dismissal of defendant’s
postconviction petition as frivolous and patently without merit was not proper.
¶ 100 III. CONCLUSION
¶ 101 We affirm the trial court’s summary dismissal of defendant’s pro se postconviction
petition as frivolous and patently without merit.
¶ 102 Affirmed.
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¶ 103 JUSTICE GARCIA, specially concurring:
¶ 104 I do not subscribe to the majority’s rejection of People v. Carr, 407 Ill. App. 3d 513(2011), which held that an unsigned affidavit is not valid, for being at odds with this court’s
decision in People v Henderson, 2011 IL App (1st) 090923. Supra ¶ 72. Specifically, I
disagree with the implicit suggestion by the majority that because a first-stage postconviction
petition should not necessarily be dismissed for lack of supporting documentation based on
an unsworn “affidavit” from a postconviction defendant under Henderson, the same result
should obtain when the unsworn “affidavit” purports to be from a codefendant on behalf of
a postconviction defendant. I agree with the observation in Henderson, “We need not address
the result in Wilborn, as that case did not present an issue identical to the one before us.”
Henderson, 2011 IL App (1st) 090923, ¶ 36.
¶ 105 In this case, the defendant offers the excuse that Jenkins’s efforts to notarize his
statement were rebuffed by the Illinois Department of Corrections. It is fair to say that the
defendant’s assertion cannot be based on his own knowledge. There may be another equally
plausible reason for Jenkins’s statement not being notarized. In any event, I am not persuaded
that an unsigned “affidavit” from a postconviction petitioner and an unsigned “affidavit”
from a purported witness should be treated alike.
¶ 106 However, I agree with the majority’s conclusion that upon de novo review the
postconviction petition, with its supporting documentation, meets the legal standard of
frivolous and patently without merit to warrant dismissal at the first stage, which after all is
the true holding of this case and is the same result we reached as to the postconviction
petition we reviewed in Henderson.
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