People v. Creater , 2022 IL App (4th) 200431-U ( 2022 )

NOTICE 2022 IL App (4th) 200431-U FILED
This Order was filed under February 24, 2022
Supreme Court Rule 23 and is NO. 4-20-0431 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
ANTWONE LAMONT CREATER, ) No. 17CF970
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed
the trial court’s judgment.
¶2 Defendant, Antwone Lamont Creater, appeals the trial court’s first-stage dismissal
of his pro se postconviction petition. On appeal, the Office of the State Appellate Defender
(OSAD) was appointed to represent defendant. OSAD has filed a motion to withdraw as
defendant’s appellate counsel, asserting defendant’s appeal presents no potentially meritorious
issues for review. We grant OSAD’s motion and affirm the trial court’s dismissal of defendant’s
postconviction petition.
¶3 I. BACKGROUND
¶4 In September 2017, the State charged defendant by information with two counts
of unlawful delivery of a controlled substance (720 ILCS 570/407(b)(2) (West 2016); 720 ILCS
570/401(d)(i) (West 2016)). Before trial, the State dismissed count I and proceeded solely on
count II.
¶5 A. Jury Trial
¶6 1. Motion for a Continuance
¶7 On the morning defendant’s jury trial was scheduled to begin, defense counsel
approached the court, stating, “I don’t know if this is the time to raise this issue or not, but the
defendant is asking to move to continue the trial for a couple of reasons.” Counsel explained
defendant sought three witnesses, Ameer Taylor, Bryant McClelland, and Eddie Creater, to
testify on defendant’s behalf. (We note the record and defendant’s postconviction petition refer
to Bryant McClelland and also Brian McCullen. For consistency, we will refer to this individual
as “McClelland.”) Taylor was under subpoena, but he had an unrelated warrant for his arrest.
McClelland and Creater had not been disclosed to the State as potential witnesses.
¶8 Defense counsel conferred with the State off the record, and the State agreed to
waive any objections to the late disclosures. Counsel stated he was “optimistic” McClelland
would willingly come to testify the following day but thought it was unlikely Taylor would
appear. Counsel informed the court Creater was in custody and would be available to testify.
Counsel believed Taylor’s trial testimony would be cumulative of McClelland’s testimony, as
the purpose of the testimony was to contradict expected testimony from State witnesses Casey
Wheeler and Dorian Parker that Wheeler and Parker were not previously acquainted. Counsel
stated, “[I]f we could get [McClelland’s] testimony, I think that could substitute for Taylor.”
Therefore, counsel believed a continuance was not necessary, as McClelland was available if
needed.
¶9 2. Trial
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¶ 10 The State’s first witness, Casey Wheeler, testified about her role as a paid
confidential source with the Bloomington Police Department and, specifically, her purchase of
heroin from defendant in September 2017. After recounting her past substance abuse struggles
and her criminal record, Wheeler relayed the details of her interaction with defendant to purchase
heroin. She testified defendant, via phone calls and text messages, instructed her to go to several
different locations in Bloomington before eventually directing her to a bus stop, where the
transaction took place. Defendant’s cousin, Dorian Parker, arrived at the bus stop, and Wheeler
and Parker engaged in the drug transaction. Wheeler stated she gave Parker $140 of the
prerecorded currency provided by the police and Parker gave her one packet of heroin and a
methadone bottle she had left at McClelland’s house. She confirmed defendant arrived at the bus
stop after the transaction and she spoke with him. The State introduced text messages between
Wheeler and defendant where defendant expressed concern about the police watching him and
Wheeler “setting him up.” The text messages also alluded to defendant sending someone to meet
Wheeler. Regarding her pending unrelated felony, she said she was hoping for leniency, but she
indicated no promises were made. She testified she decided to become a confidential source
because she wanted to stop using drugs and because she “knew that if [defendant] was off the
streets I couldn’t—I couldn’t go there. I couldn’t go to him.”
¶ 11 Dorian Parker testified that in exchange for his testimony, the State would dismiss
two of his nonprobationable felony counts arising from this incident and allow him to plead
guilty to an amended probationable count. However, there was no agreement as to sentence.
Parker said he had been a heroin addict for eight years, and he and his wife came to Bloomington
from Harvey, Illinois, to visit his wife’s cousin (defendant) over the Labor Day weekend. Parker
stated he met with defendant on September 5, 2017, and agreed to deliver drugs for defendant.
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Defendant instructed Parker to deliver an empty methadone bottle and two packs of heroin to
Wheeler at a bus stop, and defendant would provide a bag of heroin to Parker as payment in
exchange for agreeing to the delivery. Parker testified after Wheeler provided him with $140, he
provided her with two bags of heroin. After the drug transaction between Parker and Wheeler,
defendant arrived. Parker testified “not even 30 seconds” later, police stopped Parker and
defendant as they were walking away from the bus stop. Parker still had the recorded currency
from the drug transaction in his pocket at the time of his arrest.
¶ 12 Parker admitted signing an affidavit while in the McLean County jail, taking sole
responsibility for the drug transaction and exonerating defendant. However, he said the body of
the affidavit was not his handwriting, he did not know what it contained, and he signed it
because he “felt pressured and *** was still coming off withdrawals from the drugs.” He said
defendant and defendant’s brother (who was also incarcerated in the McLean County jail)
pressured him daily to sign the affidavit.
¶ 13 The State called several police officers involved in the planning and execution of
the drug transaction between Wheeler and defendant. The testimony revealed officers observed
Wheeler at the bus stop. An individual (later identified as Parker) approached and sat next to
Wheeler on a bench. Police witnessed a hand-to-hand transaction as Wheeler put money on the
bench, and Parker handed her something while picking up the money. Wheeler and Parker were
engaged in conversation when another individual (later identified as defendant) approached the
bus stop. Parker and defendant began walking away when other officers arrived and arrested
them. Defendant had over $1700 in his pockets along with a cellular phone, which officers
confirmed was the phone used to set up the drug transaction with Wheeler. Police also searched
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Parker, who had $261 on his person, $140 of which was the “buy money” Wheeler used to
purchase the heroin.
¶ 14 Todd Walcott, the lead detective on the case, testified concerning the benefits of
using confidential sources in drug cases and explained the details involved in controlled-buy
transactions. Wheeler contacted Walcott wanting to work as a confidential source and purchase
heroin from defendant. On the day of the controlled-buy transaction, Walcott drove Wheeler to
various locations to meet defendant and searched Wheeler before and after the drug transaction.
After the transaction, Walcott met Wheeler at a nearby restaurant where she informed him the
drug transaction was completed and provided him with a bag of heroin. A recorded interview of
defendant was played before the jury. In the recording, defendant stated he directed Parker to
give Wheeler her empty methadone bottle, but defendant did not direct Parker to deliver drugs to
Wheeler. Defendant confirmed his cell phone number was the same one Wheeler used to set up
the drug transaction but stated she contacted defendant regarding the return of her methadone
bottle. A stipulation was read attesting to the proper foundational requirements for the drugs and
testing by an Illinois State Police forensic scientist. Testing confirmed the substance was heroin
weighing 0.1 gram.
¶ 15 Defendant elected not to testify or present any other evidence on his behalf. The
jury found defendant guilty of unlawful delivery of a controlled substance.
¶ 16 B. Krankel Hearing and Motion for Judgment Notwithstanding the Verdict
¶ 17 After trial, defendant filed a letter and a pro se “Motion for a New Trial or
Judgment N.O.V.” In the letter, defendant alleged counsel was ineffective for failing to request a
continuance to secure the testimony of Taylor and McClelland.
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¶ 18 Shortly after defendant filed his pro se motion, counsel filed a “Motion for
Judgment Notwithstanding the Verdict or for a New Trial.” In the motion, counsel argued the
State failed to prove the elements of the offense beyond a reasonable doubt and the finding of the
jury was against the manifest weight of the evidence.
¶ 19 In January 2018, the trial court held a hearing on the motions. First, the court
addressed defendant’s letter claiming ineffective assistance. Defendant asserted if defense
counsel had called McClelland, he would have testified Wheeler and Parker knew one another
and McClelland was present when Wheeler called defendant. Defendant agreed Taylor was
unavailable to testify because of his outstanding warrant, but he argued counsel should have
requested a continuance to secure Taylor’s testimony. Counsel explained McClelland was not
called as a witness “as a matter of trial strategy.” McClelland’s testimony that Wheeler called
defendant seeking to purchase drugs would have been counterproductive to defendant’s claims
Wheeler called only to request her prescription methadone bottle. McClelland was interviewed
by police after he was disclosed as a witness and made statements contrary to his proposed
testimony, which would have been used to “thoroughly impeach” McClelland’s testimony at
trial. As to Taylor, counsel explained Taylor did not appear despite being under subpoena, he
could not contact Taylor, and his testimony would have been largely cumulative. Counsel stated
during the hearing that defendant “did not ask me to continue this trial. *** And given [Taylor’s]
unavailability or his unwillingness to respond to the subpoena, and I think the defendant was
anxious to go to trial, I did not ask to continue it.” The court determined “no basis exist[ed] for
ineffective assistance of counsel at this time,” but defendant had preserved his claim for appeal.
¶ 20 The court then addressed counsel’s motion for a judgment n.o.v., in which he
claimed the State failed to prove the elements of the offense beyond a reasonable doubt and the
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finding of the jury was against the manifest weight of the evidence. The court denied the motion
for judgment n.o.v.
¶ 21 C. Sentencing
¶ 22 The court proceeded to sentencing. The State offered, as a demonstrative exhibit,
a list of dates identifying when defendant had been in custody since 1997. Defense counsel
offered an acceptance letter defendant received from Midwest Technical Institute and
defendant’s payroll records from his employment in 2017.
¶ 23 During argument, the State detailed defendant’s drug-related convictions starting
in 1988. The State argued the substance delivered in this case, heroin, was a highly toxic
substance and defendant committed the offense while on parole. The State argued a 20-year
sentence was (1) necessary to deter defendant and others and (2) appropriate “because the only
thing the defendant has learned through his numerous terms in the Department [of Corrections] is
just different ways of trying to evade detection.” The State noted the instant conviction was
defendant’s seventh delivery charge. Defendant had violated parole “every single time for
another delivery charge.”
¶ 24 Defense counsel argued the evidence at trial placed responsibility for the
transaction on Parker. Counsel asserted Parker “was the primary drug deliverer and dealer in this
case and, by his own testimony, was feeding his own drug habit.” Counsel also asserted
defendant was battling a drug addiction and anxiety disorder, which helped explain why he has
been in and out of prison. Defense counsel recommended the court impose a 10-year sentence
based on the “very small” quantity of drugs and defendant’s limited involvement in “a crime of
opportunity.” Following the recommendations, defendant made a lengthy statement in allocution
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professing his innocence. Defendant claimed he was used by Wheeler and Parker and
characterized the jury’s verdict as a “grave mistake.”
¶ 25 Based upon its consideration of the information contained in the PSI, the
recommendations, the statement in allocution, and the statutory factors in aggravation and in
mitigation, the trial court sentenced defendant to 15 years in the Illinois Department of
Corrections.
¶ 26 In January 2018, defendant filed a motion to reconsider his sentence, claiming
“[t]hat given all the circumstances, the sentence imposed is excessive.” In February 2018, the
trial court held a hearing on defendant’s motion and, after identifying the factors it considered
when imposing the sentence originally, denied the motion.
¶ 27 D. Direct Appeal
¶ 28 On direct appeal, defendant argued only that his sentence was excessive. This
court affirmed defendant’s conviction and sentence. People v. Creater, 2020 IL App (4th)
180126-U, ¶ 30.
¶ 29 E. Postconviction Petition
¶ 30 On July 16, 2020, while his direct appeal was pending, defendant filed a
postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2018)). Including exhibits and various attachments, defendant’s petition was
approximately 80 pages. Defendant made multiple claims, including the following: (1) the
evidence was insufficient to sustain a conviction and the jury’s verdict was against the manifest
weight of the evidence; (2) the State knowingly used perjured testimony; (3) the State engaged in
prosecutorial misconduct; (4) actual innocence; (5) ineffective assistance of counsel where
counsel (a) allowed the State to use the perjured testimony of Wheeler and Parker, (b) failed to
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seek a continuance to secure the testimony of Taylor and McClelland, (c) failed to call Johnathan
Jamerson, who wrote the affidavit Parker signed, (d) failed to bar Parker’s testimony prior to trial
for being false and based on a “sweetheart plea deal,” (e) misrepresented what Taylor and
McClelland’s testimony would have been, and (f) failed to introduce defendant’s paystubs;
(6) malicious prosecution; (7) violations of his fourth amendment rights; (8) fellow inmate
Michael Powell would have testified on defendant’s behalf; and (9) phone records “may” have
exonerated defendant.
¶ 31 Defendant attached to his petition (1) nonsequential portions of official transcripts
with handwritten comments, (2) pages 2 through 10 and page 15 from his appellant’s brief on
direct appeal, (3) Parker’s affidavit, (4) a Bing search definition of “methadone,” (5) defendant’s
acceptance letter from Midwest Technical Institute, and (6) photocopies of paystubs.
¶ 32 On August 20, 2020, the trial court entered a detailed nine-page written order. The
court noted the length of defendant’s petition (“approximately 75 pages”) and its disorganization
had “hampered” the court’s review. Nevertheless, the court addressed each of defendant’s claims
and ultimately determined defendant’s petition was frivolous and patently without merit.
¶ 33 This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 On appeal, OSAD has filed a motion to withdraw as counsel and has included a
supporting memorandum. The record shows proof of service on defendant. This court granted
defendant leave to file a response on or by August 18, 2021, and with an extension of time,
defendant has done so. The State also filed a brief contending OSAD’s motion to withdraw as
counsel should be granted. Based on our examination of the record, we conclude, as has OSAD,
an appeal in this case would be without arguable merit.
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¶ 36 “The Post-Conviction Hearing Act provides a procedural mechanism through
which criminal defendants can assert that their federal or state constitutional rights were
substantially violated in their original trials or sentencing hearings.” People v. Buffer, 2019 IL
122327, ¶ 12, 137 N.E.3d 763 (citing 725 ILCS 5/122-1(a) (West 2014)). “A postconviction
proceeding is not a substitute for a direct appeal but rather is a collateral attack on a prior
conviction and sentence. The purpose of the proceeding is to allow inquiry into constitutional
issues involved in the original conviction and sentence that have not been, and could not have
been, adjudicated previously on direct appeal.” Buffer, 2019 IL 122327, ¶ 12 (citing People v.
Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966 (2007)).
¶ 37 Once filed, a postconviction petition is subject to a three-stage adjudicatory
process. Harris, 224 Ill. 2d at 125. At the first stage, section 122-2.1 of the Act directs the trial
court to independently assess the substantive merit of the petition. Harris, 224 Ill. 2d at 125-26
(citing 725 ILCS 5/122-2.1 (West 2002)). If the court finds the petition is “frivolous” or
“patently without merit,” the Act requires that the court dismiss it, and this dismissal is a final
order. 725 ILCS 5/122-2.1(a)(2) (West 2018). A petition is frivolous or patently without merit
when its allegations, taken as true and liberally construed, fail to present the gist of a
constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). A
petition may be dismissed as frivolous or patently without merit “only if the petition has no
arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 12, 912 N.E.2d 1204,
1209 (2009). “A petition lacks an arguable basis in law when it is grounded in ‘an indisputably
meritless legal theory,’ for example, a legal theory which is completely contradicted by the
record.” People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010) (quoting Hodges,
234 Ill. 2d at 16). A petition “lacks an arguable basis in fact when it is based on a ‘fanciful
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factual allegation,’ which includes allegations that are ‘fantastic or delusional’ or belied by the
record.” Morris, 236 Ill. 2d at 354 (quoting Hodges, 234 Ill. 2d at 16-17). Our review of a first-
stage dismissal of a postconviction petition is de novo (Buffer, 2019 IL 122327, ¶ 12), affording
no deference to the trial court’s judgment or reasoning. People v. Walker, 2018 IL App (1st)
160509, ¶ 22, 128 N.E.3d 978.
¶ 38 In its memorandum, OSAD details the claims raised by defendant in his
postconviction petition, as well as identifying and addressing a separate procedural issue.
¶ 39 A. Ineffective Assistance of Counsel
¶ 40 Defendant claimed his trial counsel provided ineffective assistance on several
bases. A defendant’s claim of ineffective assistance of counsel is analyzed under the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017
IL 120649, ¶ 29, 89 N.E.3d 366. To prevail, “a defendant must show both that counsel’s
performance was deficient and that the deficient performance prejudiced the defendant.” People
v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish deficient
performance, the defendant must show “counsel’s performance ‘fell below an objective standard
of reasonableness.’ ” People v. Valdez, 2016 IL 119860, ¶ 14, 67 N.E.3d 233 (quoting
Strickland, 466 U.S. at 688). Prejudice is established when a reasonable probability exists that,
but for counsel’s unprofessional error, the result of the proceeding would have been different.
People v. Evans, 209 Ill. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004) (citing Strickland, 466
U.S. at 694). A defendant must satisfy both prongs of the Strickland standard, and the failure to
satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Clendenin,
238 Ill. 2d 302, 317-18, 939 N.E.2d 310, 319 (2010). “ ‘Effective assistance of counsel refers to
competent, not perfect representation.’ ” Evans, 209 Ill. 2d at 220 (quoting People v. Stewart,
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104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or tactics do
not necessarily render counsel’s representation defective. See People v. Hanson, 238 Ill. 2d 74,
107, 939 N.E.2d 238, 258 (2010) (finding defense counsel’s decision not to file a motion
in limine instead of objecting at trial was not objectively unreasonable).
¶ 41 1. Failure to Request a Continuance and Failure to Call Witnesses
¶ 42 Defendant alleged in his petition his trial counsel was ineffective for failing to ask
for a continuance on the day his trial was scheduled to begin so that he could procure three
additional witnesses. This claim is positively rebutted by the record. On the morning defendant’s
jury trial was scheduled to begin, counsel stated to the court, “I don’t know if this is the time to
raise this issue or not, but the defendant is asking to move to continue the trial for a couple of
reasons.” Counsel explained the status of the witnesses defendant hoped to procure and stated,
“So given that, Judge, we don’t have confirmation as to the one witness, Mr. Taylor, who’s
under subpoena, and we have reason to believe he’s not going to appear because of his active
warrant, and the late disclosure of two other potential witnesses, we move to continue.” Counsel
conferred with the State off the record, and the State agreed to waive any objection to the late
disclosures. Other than Taylor, who was unlikely to appear given his outstanding warrant, the
court determined in its discussion with the parties, due to the State’s acceptance of the late
disclosed witnesses and the possibility some of the testimony sought may prove to be cumulative
at best, defense counsel was in a position to determine if the witnesses’ testimony would be
needed without a continuance.
¶ 43 As to whether defense counsel was ineffective for not calling the witnesses
defendant sought with his request for a continuance, “the decision whether to call a certain
witness for the defense is a matter of trial strategy, left to the discretion of counsel after
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consultation with the defendant.” People v. Peterson, 2017 IL 120331, ¶ 80, 106 N.E.3d 944. As
a result, such decisions will not ordinarily support a claim for ineffective assistance of counsel
and even “a mistake in trial strategy” will not, by itself, render representation constitutionally
defective. Peterson, 2017 IL 120331, ¶ 80.
¶ 44 Defendant identified two potential witnesses. Taylor was under subpoena, but he
had an unrelated warrant for his arrest and could not be contacted. As counsel explained during
the Krankel hearing, Taylor was unwilling to respond to the subpoena and could not be located.
It was reasonable for counsel to conclude a continuance would not increase the likelihood Taylor
would appear to testify at trial when he was avoiding a warrant for his arrest.
¶ 45 Defendant does not explain in his petition what McClelland’s proposed testimony
would have been, only that it would have been “different.” At the Krankel hearing, defendant
asserted McClelland would have testified Wheeler and Parker were previously acquainted and
that McClelland was with defendant when Wheeler contacted him seeking drugs. Counsel stated
during the Krankel hearing McClelland’s testimony would have been counterproductive to
defendant’s claims Wheeler only requested the return of her prescription methadone bottle.
Further, Parker admitted on cross-examination he was staying at McClelland’s house when
defendant and Wheeler were present. Wheeler similarly admitted on cross-examination that
Parker seemed familiar, and she had “probably” used drugs with him before. Defense counsel’s
decision not to call McClelland as a witness was a matter of trial strategy, and, in light of the
other testimony at trial, a reasonable one. Thus, there is no arguable merit to the claim counsel
provided ineffective assistance.
¶ 46 2. Failure to Object to Perjured Testimony and Hearsay
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¶ 47 Defendant alleged counsel was ineffective for “allowing [the] State to use
perjured testimony” from Wheeler and Parker. “[T]he State’s knowing use of perjured testimony
to obtain a criminal conviction constitutes a violation of due process of law.” People v. Olinger,
176 Ill. 2d 326, 345, 680 N.E.2d 321, 331 (1997). “A conviction obtained by the knowing use of
perjured testimony must be set aside if there is any reasonable likelihood that the false testimony
could have affected the jury’s verdict.” Olinger, 176 Ill. 2d at 345. “ ‘Where a criminal defendant
seeks to overturn his conviction on the basis of perjured testimony, the defendant must not
merely allege perjury by State’s witnesses, but must present clear, factual allegations of perjury
and not mere conclusions or opinions.’ ” People v. Moore, 2012 IL App (4th) 100939, ¶ 28, 975
N.E.2d 1083 (quoting People v. Thomas, 364 Ill. App. 3d 91, 104, 845 N.E.2d 842, 855 (2006)).
¶ 48 In his postconviction petition, defendant’s claims of perjured testimony are
largely conclusory and are unsupported by the record or attachments to the petition. Defendant’s
assertion that Wheeler and Parker were “not being truthful or trustworthy” during their testimony
does not amount to proof they committed perjury. Trial counsel thoroughly cross-examined both
witnesses, highlighting inconsistencies in their testimony. However, “[m]ere inconsistencies in
testimony do not establish perjury or that the State knowingly used perjured evidence.” People v.
Amos, 204 Ill. App. 3d 75, 85, 561 N.E.2d 1107, 1115 (1990). The jury had the opportunity to
consider the impeachment evidence and inconsistencies in the witnesses’ testimony, and it is
their duty to resolve those inconsistencies. See Evans, 209 Ill. 2d at 211 (“It is the function of the
trier of fact to assess the credibility of the witnesses, to determine the appropriate weight of the
testimony, and to resolve conflicts or inconsistencies in the evidence.”). Defendant’s conclusory
allegation trial counsel was ineffective for “allowing” the claimed perjured testimony, therefore,
lacks arguable merit.
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¶ 49 Defendant also contended counsel was ineffective for not objecting to hearsay
statements from Parker, referring specifically to Parker’s testimony as to his understanding of his
plea agreement. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid.
801(c) (eff. Oct. 15, 2015). “ ‘Hearsay *** is generally inadmissible due to its lack of reliability
unless it falls within an exception to the hearsay rule.’ ” People v. Tenney, 205 Ill. 2d 411, 432-
33, 793 N.E.2d 571, 584-85 (2002) (quoting Olinger, 176 Ill. 2d at 357). Attorneys provide
ineffective assistance when they allow the factfinder to consider improper hearsay. People v.
Jura, 352 Ill. App. 3d 1080, 1093, 817 N.E.2d 968, 981 (2004). Parker recounted his
understanding of the plea agreement he made with the State; his personal understanding and
recollection is not hearsay. See People v. Prather, 2012 IL App (2d) 111104, ¶ 11, 979 N.E.2d
540 (stating evidence offered to show a person’s knowledge or awareness of a circumstance and
not to establish the truth of the circumstance is not hearsay). Therefore, there is no arguable merit
to defendant’s claim trial counsel should have objected to the testimony as hearsay.
¶ 50 3. Failure to Introduce Paystubs
¶ 51 Defendant alleged his counsel was also ineffective for failing to introduce
defendant’s paystubs. According to defendant, this evidence would have rebutted testimony from
police that the $1702 found in defendant’s possession was related to drug transactions.
“[D]ecisions as to *** what evidence to present are viewed as matters of trial strategy and
‘generally immune from claims of ineffective assistance of counsel.’ ” People v. Brown, 2018 IL
App (4th) 160288, ¶ 47, 115 N.E.3d 408 (quoting People v. West, 187 Ill. 2d 418, 432, 719
N.E.2d 664, 673 (1999)). Even if defendant’s paystubs were admissible, the fact that defendant
had a legitimate job would not negate the possibility he also secured income from selling heroin.
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In addition, defendant, who elected not to testify and raises no claim he was otherwise prevented
from doing so, fails to explain how, absent his testimony, the jury would have been able to hear
an alternate explanation for the large amount of currency found on his person. Defendant
claimed he provided counsel with (1) a letter from Midwest Technical Institute showing he had
been accepted for a welding program and (2) seven months of pay stubs. Defendant asserted, “I
gave this two [sic] Mr. McEldowney and beg [sic] him to please present this to jury at my trial to
show them that the money I had was not drug money and let them know that money was for
school equipment for welding.” Absent defendant’s testimony, this was not possible. Further,
introducing such evidence would have opened up an opportunity for the State to rebut the
evidence with defendant’s financial affidavit, in which he claimed he was unemployed and had
an income of $196 per month. A decision not to introduce defendant’s paystubs was sound trial
strategy and therefore not subject to an ineffective assistance claim. See Brown, 2018 IL App
(4th) 160288, ¶ 47.
¶ 52 B. Insufficient Evidence
¶ 53 Defendant also alleged in his petition the evidence was insufficient to support his
conviction beyond a reasonable doubt. “Questions as to the sufficiency of the evidence have
been held not to present a constitutional question and therefore are not properly considered in
post-conviction proceedings.” People v. Dunn, 52 Ill. 2d 400, 402, 288 N.E.2d 463, 464 (1972);
see also People v. Izquierdo, 262 Ill. App. 3d 558, 560, 634 N.E.2d 1266, 1268 (1994)
(“Reasonable doubt of a defendant’s guilt is not a proper issue for a post-conviction
proceeding.”). Thus, there is no meritorious argument postconviction relief could be granted to
defendant based upon a challenge to the sufficiency of the evidence.
¶ 54 C. Prosecutorial Misconduct
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¶ 55 Defendant also alleged prosecutorial misconduct on multiple grounds:
(1) knowing use of perjured testimony, (2) improper arguments, and (3) malicious prosecution.
¶ 56 The United States and Illinois Constitutions guarantee the right of all criminal
defendants to a fair and impartial trial. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. This
includes the right to a trial free from “pervasive prosecutorial misconduct that deliberately
undermines the process by which we determine a defendant’s guilt or innocence.” (Internal
quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 122, 871 N.E.2d 728, 744 (2007).
¶ 57 1. Knowing Use of Perjured Testimony
¶ 58 As discussed above (see supra ¶¶ 47-48), defendant offered no evidence the
witnesses arguably committed perjury. Therefore, there is no arguable merit to defendant’s claim
the prosecution could have knowingly used perjured testimony.
¶ 59 2. Improper Argument
¶ 60 An opening statement should inform “the jury of what each party expects the
evidence to prove,” and it “may include a discussion of the expected evidence and reasonable
inferences from the evidence.” People v. Kliner, 185 Ill. 2d 81, 127, 705 N.E.2d 850, 874 (1998).
Similarly, “[t]he prosecutor may comment during closing argument on the evidence and on any
fair and reasonable inference the evidence may yield, even if the suggested inference reflects
negatively on the defendant.” People v. Perry, 224 Ill. 2d 312, 347, 864 N.E.2d 196, 217-18
(2007). “[C]omments that exceed the bounds of proper argument require reversal [citation], only
if the comments engender substantial prejudice against a defendant such that it is impossible to
say whether or not a verdict of guilt resulted from them.” (Internal quotation marks omitted.)
People v. Jones, 2016 IL App (1st) 141008, ¶ 23, 69 N.E.3d 226.
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¶ 61 Defendant expressly points to a single remark by the State during opening
statements. The State began its opening remarks by stating, “This case is about two things:
Money and addiction. On September 5th of 2017, the defendant took advantage of two addicts
for his own monetary gain.” This comment is based on the evidence the State expected to be
presented and reasonable inferences from that expected evidence, namely that defendant directed
Parker, a confessed addict, to deliver heroin to Wheeler, another confessed addict. The comment
was supported by the testimony presented at trial. The prosecutor’s comment does not arguably
rise to the level of prosecutorial misconduct.
¶ 62 3. Malicious Prosecution
¶ 63 Defendant alleged he was maliciously prosecuted by the State. Malicious
prosecution is a tort action, in which a plaintiff must demonstrate: “(1) that defendants began or
continued the original criminal proceeding; (2) plaintiff received a favorable termination;
(3) probable cause did not exist; (4) malice was present; and (5) plaintiff suffered damages.”
Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 96, 887 N.E.2d 656, 662 (2008). As a defendant
filing a postconviction petition cannot have received a “favorable termination” on the charges he
was convicted of, malicious prosecution is not a violation of constitutional rights appropriate for
postconviction proceedings.
¶ 64 Insofar as defendant suggested the State’s plea negotiations with Parker were
improper, defendant provides no basis in the record and no supporting documentation that the
State negotiated in bad faith to secure Parker’s testimony against defendant. See West, 187 Ill. 2d
at 425-26 (“[N]onfactual and nonspecific assertions which merely amount to conclusions are not
sufficient to require a hearing under the Act.”).
¶ 65 D. Actual Innocence
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¶ 66 Defendant next asserted a claim of actual innocence. He alleged the testimony of
Jamerson would demonstrate Parker did read the affidavit and was not pressured to sign it. The
Illinois Supreme Court has recently described how actual innocence claims are evaluated:
“To establish actual innocence, the supporting evidence must be (1) newly
discovered, (2) material and not cumulative, and (3) of such conclusive character
that it would probably change the result on retrial. [Citations.] Newly discovered
evidence is evidence that was discovered after trial and that the petitioner could
not have discovered earlier through the exercise of due diligence. [Citation.]
Evidence is material if it is relevant and probative of the petitioner’s innocence.
[Citation.] Noncumulative evidence adds to the information that the fact finder
heard at trial. [Citation.] Lastly, the conclusive character element refers to
evidence that, when considered along with the trial evidence, would probably lead
to a different result.” People v. Robinson, 2020 IL 123849, ¶ 47.
Defendant did not explain in his petition how Parker’s affidavit or Jamerson’s testimony was
newly discovered and could not have been discovered sooner through due diligence. Parker’s
affidavit was well known to defendant at trial, as it was introduced as evidence to impeach
Parker’s testimony. Defendant’s claim of actual innocence is conclusory, and therefore has no
arguable merit.
¶ 67 E. Other Claims
¶ 68 Defendant made several other claims in his postconviction petition, including:
(1) his fourth amendment rights were violated, (2) Michael Powell, a fellow inmate, would have
testified on defendant’s behalf, and (3) phone records “may” have exonerated defendant. We
agree with OSAD’s observation that defendant does not explain these claims. Defendant does not
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explain how his fourth amendment rights were violated, makes no mention of what Powell’s
testimony would have been, and does not expand on what the phone records would have
revealed. “[N]onfactual and nonspecific assertions which merely amount to conclusions are not
sufficient to require a hearing under the Act.” West, 187 Ill. 2d at 426.
¶ 69 F. The Trial Court’s First-Stage Dismissal
¶ 70 OSAD has also included in its memorandum an assessment as to whether the trial
court’s dismissal was procedurally proper. Defendant filed his pro se postconviction petition on
July 10, 2020, and the court denied the petition on August 20, 2020. Therefore, the dismissal met
the requirement of section 122-2.1(a)(2) (725 ILCS 5/122-2.1(a)(2) (West 2018)) of the Act, that
the trial court act within 90 days if it dismisses the petition at the first stage. Further, the record
reflects a detailed written order as required by section 122-2.1(a)(2) and reveals no
impermissible input by the State. See People v. Bailey, 2017 IL 121450, ¶ 20, 102 N.E.2d 114.
Any claim the trial court did not follow proper procedure in entering its first-stage dismissal
order would also be without merit.
¶ 71 G. Defendant’s Claims in His Response to Counsel’s Motion to Withdraw
¶ 72 In his response to OSAD’s motion to withdraw as appellate counsel, and in his
reply to the State’s brief, defendant makes several new claims of constitutional violations.
Defendant claims his fifth and fourteenth amendment rights were violated, his arrest violated
Bloomington police department “procedure,” and his sentence was contrary to the proportionate
penalties clause (see Ill. Const. 1970, art. I, § 11). None of these claims appear in defendant’s
postconviction petition, and therefore he cannot raise them for the first time on appeal. People v.
Jones, 213 Ill. 2d 498, 505, 821 N.E.2d 1093, 1097 (2004).
¶ 73 H. Ineffective Assistance of Appellate Counsel
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¶ 74 Finally, in his response to OSAD’s motion to withdraw as counsel on appeal,
defendant asserts appellate counsel has provided ineffective assistance by not advancing his
claims on appeal. “Claims of ineffective assistance of appellate counsel are measured against the
same standard as those dealing with ineffective assistance of trial counsel.” People v. Childress,
191 Ill. 2d 168, 175, 730 N.E.2d 32, 36 (2000). To prevail on a claim of ineffective assistance of
counsel, a defendant must show (1) counsel’s performance fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at
687.
¶ 75 Here, for the reasons stated above, the record fails to disclose a single issue which
is arguably meritorious. Further, defendant does not provide in his response any further legal
authority or information to support his original claims. Accordingly, we reject defendant’s claim
of ineffective assistance of appellate counsel.
¶ 76 III. CONCLUSION
¶ 77 For the reasons stated, we grant OSAD’s motion to withdraw as appellate counsel
and affirm the trial court’s judgment.
¶ 78 Affirmed.
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