People v. Gordon ( 2023 )

2023 IL App (1st) 211608-UNo. 1-21-1608
Order filed June 30, 2023
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 09 CR 22250
)
SAMMY GORDON, ) Honorable
) Michael J. Kane,
Defendant-Appellant. ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court.
Presiding Justice Mikva and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: Defendant has not rebutted the presumption that postconviction counsel provided
reasonable assistance where he has not shown that counsel could have successfully
amended his pro se petition.
¶2 Defendant Sammy Gordon appeals from the circuit court’s second-stage dismissal of his
petition for relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2018)). He argues that appointed postconviction counsel failed to provide reasonable
assistance under Supreme Court Rule 651(c) (eff. July 1, 2017) by not amending his pro se petition.
No. 1-21-1608
Specifically, he claims that postconviction counsel should have amended his pro se claim that trial
counsel was ineffective for failing to impeach a police officer’s testimony about the location of his
arrest into a claim that trial counsel was ineffective for not timely disclosing to the State that
defendant intended to raise an alibi defense. For the following reasons, we affirm.
¶3 Following a 2013 jury trial, defendant was convicted of armed robbery and sentenced to
37 years’ imprisonment, which included a 15-year firearm enhancement.
¶4 Before trial, trial counsel moved to suppress statements by defendant. In support, defendant
submitted an affidavit averring that he was arrested by a male police officer on November 13,
2009, while walking east on 87th Street. The police ignored his requests for an attorney, beat him,
stated they had evidence that would “put [him] at the scene of the crime,” and coerced him into
signing papers by threatening he would spend his life in prison. The affidavit was unsworn, but
during a hearing on the motion to suppress, defendant swore that the facts alleged in the affidavit
were true and accurate. During the hearing, Chicago police officer Ranita Mitchell testified that
she saw three men, including defendant, jump a fence after a robbery at a Family Dollar store. She
pursued them and apprehended defendant in an alley. The State presented additional witnesses
who denied defendant’s allegations about the inducement of his statements. The court denied the
motion.
¶5 Before jury selection, defense counsel indicated that defendant would be the defense’s only
witness, if he chose to testify. During opening statements at trial, defense counsel told the jury that
defendant would testify regarding “where he was that night and what he was doing that night, and
he will also tell you why he gave that confession.” The State requested a sidebar and objected that
the opening statement signaled defendant would present an undisclosed alibi defense. Counsel
-2-
No. 1-21-1608
responded that defendant would testify that he was on 87th, approximately two blocks from the
scene of the robbery, when a “policeman” approached and arrested him. Counsel asserted that he
previously explained to the State that was what defendant would testify, and it was consistent with
defendant’s affidavit. The State argued that defendant’s assertion in the affidavit that he had been
arrested on 87th was different than asserting he was not at the scene of the robbery. The court
stated that any testimony that defendant was coming from somewhere besides the scene of the
robbery when he was arrested would be an undisclosed alibi defense, which was “improper” and
“sanctionable.” The court directed the parties to provide case law on the issue. Counsel stated that
defendant first alerted him to his proposed testimony several days previously.
¶6 The cause then proceeded directly to the State’s case-in-chief. As we detailed the trial
evidence in our opinion from defendant’s direct appeal (People v. Gordon, 2016 IL App (1st)
134004), we repeat the facts here only as necessary to resolve the issue in this appeal.
¶7 The State’s evidence included two witnesses, Jerome Frazier and Tiyanna Mays, who
identified defendant in court as one of three men who committed a robbery at a Family Dollar store
on the evening of November 13, 2009. Frazier, a former police officer who lived across the street
from the store, testified that he saw defendant approach the store with a surgical mask around his
neck, and later saw defendant inside the store with a firearm. Frazier further testified that he had
parked his GMC Yukon behind the store in an attempt to block the store’s back door, but the
robbers exited the back door, hopped over his vehicle, and climbed over a fence. An expert in
latent fingerprints testified that a palm print taken from a Yukon matched defendant’s. Mays, an
employee of the store, testified that defendant entered the store wearing a surgical mask and
-3-
No. 1-21-1608
holding a firearm, and identified defendant on the store’s surveillance footage. 1 Mays and Frazier
identified defendant in a showup in the store parking lot as one of the robbers, as did Mattie Graves,
a customer who was in the store and testified that she identified defendant in the showup as the
man who wore a surgical mask. Several other employees and customers who were in the store
testified to the events of the robbery but did not identify defendant as one of the robbers.
¶8 Mitchell testified that she and her partner responded to the robbery. In the alley behind the
store, she saw three men, including defendant, jump a fence. Defendant held a firearm and had a
surgical mask around or hanging from his face. She pursued on foot, was right behind him as he
turned between two garages, and apprehended defendant in the backyard of an address on the 8600
block of South Calumet Avenue. She had never lost sight of him. He still held the firearm and the
mask hung from his face. She ordered him to drop his weapon and get on the ground, and he
complied. Mitchell and her partner returned defendant to the Family Dollar for the showup.
¶9 A police sergeant testified that, after the showup, he spoke with defendant, who admitted
he had run out the back of the store, jumped over a vehicle and a fence, and was caught in an alley
with a firearm. An assistant state’s attorney (ASA) testified that, the next day, defendant gave a
written statement admitting to the robbery. The statement included that defendant exited the back
of the store and jumped a gate. Defendant ran “about two houses down,” then encountered a female
police officer, dropped his firearm, and fell. In a still image from the store’s surveillance footage,
1
The video was included in the record for defendant’s direct appeal (Gordon, 2016 IL App (1st)
134004, ¶ 8 n.2) but is not included in the record for the instant appeal.
-4-
No. 1-21-1608
defendant identified himself as wearing a surgical mask and holding a firearm. The State published
a photograph of defendant holding the written statement. 2
¶ 10 During a lunch break, the court and the parties continued discussing the alibi issue. Defense
counsel did not believe defendant’s testimony would constitute an alibi, but counsel did not know
the exact content and stated that defendant “seem[ed] to be changing his mind.” The court warned
that defendant may not be allowed to testify. The State noted it had submitted case law indicating
a defendant could not raise an alibi at trial without having notified the State. Defense counsel
argued that defendant’s affidavit indicated where he was arrested. The court instructed counsel to
proffer defendant’s expected testimony in writing, then explained to defendant that the State
sought to bar him from testifying because his alleged alibi had not been disclosed. Defendant noted
he had written an affidavit and asked how he could defend himself without testifying. The court
said he could discuss that with counsel, and defendant confirmed he understood the court could
bar him from testifying.
¶ 11 Following the lunch break, defense counsel noted he had submitted the proffer the court
had requested, in the form of an amended answer to the State’s motion for discovery. The
document is included in the record on appeal and provides that defendant might present an alibi
defense by testifying that he did not participate in the robbery and was arrested while walking east
on 87th, from a restaurant to someone’s house. However, counsel then stated that defendant would
not testify and that counsel had filed the proffer in case defendant changed his mind. The court
confirmed that defendant understood it was his choice whether to testify, and that defendant had
2
The photograph is not included in the record for the instant appeal, but we noted on direct appeal
that a photograph taken at the police station showed defendant wearing the same clothing as depicted in the
surveillance video. Gordon, 2016 IL App (1st) 134004, ¶ 47.
-5-
No. 1-21-1608
reviewed the “affidavit” with counsel and was aware of the facts therein. Defendant confirmed he
had to speak to counsel about whether to testify, and that he did not plan to testify.
¶ 12 After the State rested and the court denied the defense’s motion for a directed finding, the
court asked defendant what he wished to do. Defendant stated he did not wish to testify. The
defense rested without presenting evidence. Following closing arguments, the jury found
defendant guilty of armed robbery.
¶ 13 At the sentencing hearing, defense counsel noted that defendant’s co-offenders had pled
guilty and been sentenced to 21 and 25 years’ imprisonment, respectively. Counsel asked the court
not to punish defendant for electing trial and to impose the minimum sentence. The court sentenced
defendant to a total of 37 years’ imprisonment, comprising 22 years for armed robbery plus a
mandatory 15-year enhancement for being armed with a firearm.
¶ 14 On direct appeal, defendant argued that trial counsel provided ineffective assistance by
promising the jury that defendant would testify but failing to call him as a witness. Gordon, 2016
IL App (1st) 134004, ¶¶ 1, 38. He also argued that his sentence was excessive given his difficult
upbringing, education, and lack of criminal history, and noted the lighter sentences of his co-
offenders. Id. ¶¶ 49, 58.
¶ 15 In affirming defendant’s conviction, we concluded that defendant did not show counsel
acted deficiently as defendant decided not to testify. Id. ¶¶ 41-43. Defendant asserted that he
decided not to testify because counsel failed to disclose his alibi defense to the State. Id. ¶ 44.
However, the record was unclear as to (1) when counsel actually knew of defendant’s intent to
testify that he was arrested on 87th Street, and (2) whether the court would have barred defendant
from testifying given that counsel submitted the alibi proffer. Id. We explained that defendant’s
-6-
No. 1-21-1608
claim required a finding that counsel knew, early enough to avoid sanctions, that defendant
intended to present an alibi defense. Id. ¶ 45. We therefore stated that, to the extent defendant’s
argument relied on off-the-record discussions with counsel, the issue was better suited for
postconviction proceedings than direct appeal. Id.¶ 16 We also concluded that defendant was not prejudiced by counsel’s failure to call him to
testify. Id. ¶¶ 46-47. His only claim of prejudice was that his testimony would have rebutted
Mitchell’s testimony regarding where he was arrested, which “was but a small portion” of the
“overwhelming” evidence against him. Id. We noted that Frazier and Mays identified defendant in
court as one of the robbers and testified he had a surgical mask and a firearm. Id. ¶ 47. The store’s
surveillance footage showed him entering the store wearing a surgical mask and brandishing a
firearm. Id. Frazier testified defendant hopped over Frazier’s Yukon and a palm print from a Yukon
matched defendant’s. Id. Frazier, Mays, and Graves identified him in the store parking lot as one
of the robbers. Id. He made an inculpatory statement to the sergeant and the following day
confessed to an ASA in a written statement. Id. While confessing, he identified himself in a photo
from the surveillance footage as the person wearing a surgical mask and pointing a firearm, and a
picture of him at the police station depicted him wearing the same clothing as in the surveillance
footage. Id. Accordingly, the outcome of his trial would not have differed but for counsel’s promise
that he would testify. Id.¶ 17 Regarding defendant’s sentencing argument, the majority affirmed (id. ¶ 61), with one
justice dissenting from that portion of the opinion. The majority noted that the record only
contained the sentencing proceedings of one of defendant’s co-offenders, but because the co-
offenders reached plea agreements with the State, their sentences could not be compared to
-7-
No. 1-21-1608
defendant’s. Id. ¶ 59. The dissent concluded that defendant’s sentence was disproportionate to
those of his co-offenders and appeared to be a punishment for exercising his right to trial. Id. ¶¶ 65-
80 (Hyman, J., concurring in part and dissenting in part).
¶ 18 In December 2016, defendant filed a pro se petition for relief under the Act. He argued that
trial counsel was ineffective for failing to impeach Mitchell. He noted that Mitchell testified at
trial that she arrested him in the backyard of the address on the 8600 block of South Calumet after
chasing him through an alley and between two garages, but had testified at the suppression hearing
that she apprehended him in an alley after a brief foot pursuit. He claimed that counsel’s failure to
impeach Mitchell was “crucial” given his affidavit averring that he was arrested by a male officer,
rather than Mitchell, and not in an alley. He attached his affidavit from the pretrial suppression
hearing, which had been notarized in November 2016.
¶ 19 Defendant also raised two other claims. First, defendant argued that trial counsel was
ineffective for failing to raise mitigating factors from his presentence investigation report (PSI) at
the sentencing hearing. Second, defendant argued that counsel on direct appeal was ineffective for
failing to argue that his sentence was a “trial tax” given the lighter sentences his co-offenders
received despite their more serious criminal histories, citing the partial dissent from our opinion
on direct appeal.
¶ 20 In April 2017, the circuit court summarily dismissed the petition, finding that defendant’s
claims were frivolous and patently without merit. In an agreed order, we reversed as the dismissal
occurred more than 90 days after the petition’s filing. People v. Gordon, No. 1-17-1666 (2019)
(dispositional order).
-8-
No. 1-21-1608
¶ 21 On remand, the court appointed postconviction counsel. On February 4, 2021, counsel filed
a certificate pursuant to Supreme Court Rule 651(c) (eff. July 1, 2017), stating that he consulted
with defendant by mail and telephone to ascertain defendant’s contentions, examined the record
and report of proceedings from defendant’s trial, and “conducted additional investigation in this
case as it pertains to [defendant’s] post-conviction petition.” The certificate further noted that
postconviction counsel was supplementing defendant’s petition with transcripts of his co-
offenders’ sentencing hearings to support defendant’s trial tax argument. The certificate lastly
explained that postconviction counsel did not prepare a supplemental petition as defendant’s pro se
petition and the supplemental exhibits adequately stated defendant’s claims. Along with the
certificate, counsel filed the supplemental exhibits, a copy of our opinion on direct appeal, and the
transcript of defendant’s sentencing hearing.
¶ 22 The State filed a motion to dismiss. The State argued that defendant forfeited his claim that
trial counsel was ineffective for failing to impeach Mitchell as he presented no evidence outside
the record to support the claim. Moreover, as her testimony about where she arrested defendant
did not relate to the elements of his offense, he could not establish that trial counsel acted
deficiently or that any deficiency prejudiced him. The State further argued that his claim regarding
his PSI was forfeited and he could not establish deficiency or prejudice as the trial court stated it
read the PSI before imposing sentence. Lastly, the State contended that defendant’s trial tax claim
was barred by res judicata as counsel on direct appeal argued that his sentence was disparate to
his co-offenders’, and defendant could not show prejudice as he could not show the trial court
abused its discretion when imposing sentence.
-9-
No. 1-21-1608
¶ 23 Postconviction counsel filed a response. Counsel argued that defendant’s trial tax claim
was not forfeited or barred by res judicata as defendant’s counsel on direct appeal only provided
this court with the transcript of one of defendant’s co-offenders’ sentencing hearings. Given the
opinion on direct appeal, counsel argued that the court should advance defendant’s trial tax claim
to the third-stage to determine whether we may have reached a different result on direct appeal
had we been able to review both transcripts of his co-offenders’ sentencing hearings. Regarding
defendant’s claims that trial counsel was ineffective, counsel stated that defendant “relies on those
claims as alleged in the post-conviction petition and attached affidavit.” Postconviction counsel
also filed a “substitute” of the supplemental exhibits counsel had previously filed, comprising the
same documents previously submitted.
¶ 24 On July 9, 2021, the court heard argument on the State’s motion. The State repeated the
arguments from its motion. Postconviction counsel argued that the record did not show what
weight the sentencing court gave defendant’s PSI, his trial tax claim was not barred by forfeiture
or res judicata, and the court should advance that claim now that he had supplied the transcript of
both co-offenders’ sentencing hearings. Regarding the claim about impeaching Mitchell,
postconviction counsel stated defendant would stand on the petition and counsel would not discuss
it.
¶ 25 On December 10, 2021, the circuit court granted the State’s motion and dismissed the
petition. In a written order, the court found that defendant’s claim about impeaching Mitchell was
forfeited and that impeaching her would not have changed the outcome of his trial. His PSI claim
was also forfeited, and the trial court stated at sentencing that it had considered the PSI. Counsel
on direct appeal raised the trial tax issue, this court decided it, and his sentence was appropriate.
- 10 -
No. 1-21-1608
The circuit court thus concluded that defendant failed to make a substantial showing of a
constitutional violation.
¶ 26 Defendant now appeals. In this court, he does not challenge the circuit court’s ruling that
his petition failed to make a substantial showing of a constitutional violation. Rather, he argues
that postconviction counsel failed to provide reasonable assistance under Rule 651(c). He contends
that postconviction counsel should have amended his pro se claim that trial counsel was ineffective
for failing to impeach Mitchell into a claim that trial counsel was ineffective for failing to timely
disclose to the State that defendant intended to testify to an alibi defense. Failing to do so,
according to defendant, was a failure to adequately investigate and present his claim.
¶ 27 The Act provides a three-stage mechanism for a defendant to claim a violation of his
constitutional rights. People v. Knapp, 2020 IL 124992, ¶ 43. At the first stage, within 90 days
after a defendant files a petition under the Act, the circuit court shall summarily dismiss the petition
if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Knapp, 2020 IL
124992, ¶ 43. If the court does not rule on the petition within 90 days of the petition’s filing, the
petition automatically advances to the second stage. People v. Brewer, 2021 IL App (1st) 182638,
¶ 21. There, the defendant must make a substantial showing of a constitutional violation. People
v. Domagala, 2013 IL 113688, ¶ 35.
¶ 28 At the second stage, the Act affords indigent defendants a right to counsel. 725 ILCS 5/122-
4 (West 2018); People v. Smith, 2022 IL 126940, ¶ 13. The Act does not entitle defendants to the
effective level of assistance mandated by our state and federal constitutions, but only a “reasonable
level” of assistance, a “significantly lower” standard. (Internal quotation marks omitted.) People
v. Custer, 2019 IL 123339, ¶ 30. Rule 651(c) limits the duties of postconviction counsel. Id. ¶ 32.
- 11 -
No. 1-21-1608
Under Rule 651(c), the record must show that postconviction counsel has (1) “consulted with
petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of
deprivation of constitutional rights”; (2) “examined the record of the proceedings at the trial”; and
(3) “made any amendments to the petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
¶ 29 Postconviction counsel may create a presumption that he provided reasonable assistance
by certifying that he complied with Rule 651(c). Custer, 2019 IL 123339, ¶ 32. The defendant
bears the burden of overcoming the presumption by demonstrating his attorney failed to
substantially comply with Rule 651(c)’s duties. People v. Landa, 2020 IL App (1st) 170851, ¶ 46.
He may do so by demonstrating that postconviction counsel did not make necessary amendments
to the pro se petition. People v. Addison, 2023 IL 127119, ¶ 21. We review de novo whether a Rule
651(c) certificate sufficed to invoke the presumption of reasonable assistance and whether counsel
provided reasonable assistance. Landa, 2020 IL App (1st) 170851, ¶ 43.
¶ 30 Here, counsel filed a Rule 651(c) certificate providing that he (1) consulted with defendant
by mail and phone to ascertain his contentions; (2) examined the record on appeal, including the
report of proceedings; (3) “conducted additional investigation” pertaining to the petition; and (4)
filed supplemental exhibits supporting one of defendant’s claims. Counsel explained in the
certificate that he did not prepare a supplemental postconviction petition as defendant’s pro se
petition and the supplemental exhibits adequately set forth defendant’s claims. The certificate
complied with the form provided in Rule 651(c), and defendant makes no argument otherwise.
Thus, defendant must rebut a presumption that counsel provided reasonable assistance. Id. ¶ 46.
- 12 -
No. 1-21-1608
¶ 31 According to defendant, his pro se claim that trial counsel should have impeached
Mitchell’s testimony about his arrest indicated that he wished trial counsel had asserted his version
of events at trial. However, the claim was in improper legal form, as Mitchell could not have been
impeached through defendant’s affidavit given that the rules of evidence allow only for
impeachment with a witness’s own prior inconsistent statement. See Ill. R. Evid. 613(b) (eff. Sept.
17, 2019) (discussing admissibility of a witness’s prior inconsistent statement). Moreover,
according to defendant, our opinion on direct appeal offered an “express invitation” to investigate
and challenge trial counsel’s performance regarding the alibi defense. We stated it was unclear
when trial counsel learned defendant intended to testify and present an alibi defense and that to the
extent the issue involved off-the-record discussions between defendant and trial counsel, it was
better suited to postconviction proceedings. See Gordon, 2016 IL App (1st) 134004, ¶ 45.
Therefore, according to defendant, postconviction counsel should have investigated trial counsel’s
performance and amended defendant’s pro se claim about impeaching Mitchell into a claim that
trial counsel was ineffective for failing to timely disclose that defendant would present an alibi
defense.
¶ 32 The State responds that postconviction counsel was not unreasonable for not raising that
claim as it was absent from defendant’s pro se petition. The State further argues that we did not
“invite” the alibi claim on direct appeal, noting that we found that it was defendant’s decision not
to testify and his alibi testimony would only have impeached Mitchell, whose testimony was a
small portion of the “overwhelming” evidence against him. Id. ¶¶ 43-47. Therefore, we held that
the outcome of defendant’s trial would not have been different had trial counsel not told the jury
defendant would testify. Id. ¶ 47.
- 13 -
No. 1-21-1608
¶ 33 Defendant argues that, at this point, whether the amended claim would have succeeded is
irrelevant, as remand is required whenever counsel fails to adequately comply with Rule 651(c),
regardless of a claim’s merit. People v. Suarez, 224 Ill. 2d 37, 47 (2007); see also People v.
Johnson, 154 Ill. 2d 227, 246 (1993) (reviewing court cannot presume that circuit court would
have dismissed petition without evidentiary hearing if counsel had adequately performed his
duties). However, we find that counsel was not unreasonable for declining to amend defendant’s
pro se claim as it was patently without merit and he has not shown counsel could have successfully
amended it.
¶ 34 Defendant is correct that, where postconviction counsel fails to provide reasonable
assistance, a defendant need not show he was prejudiced because his claims had merit. Addison,
2023 IL 127119, ¶¶ 33-38. That does not mean, however, that postconviction counsel performs
unreasonably by failing to advance a nonmeritorious claim. Rather, Rule 651(c)’s requirement that
postconviction counsel make amendments necessary to adequately present the defendant’s
contentions does not require counsel to advance “frivolous or spurious claims.” People v. Greer,
212 Ill. 2d 192, 205 (2004). If an amendment would only further a frivolous or patently
nonmeritorious claim, the amendment is not necessary under Rule 651(c). Id. Thus, counsel need
not pursue claims from a pro se petition that counsel believes lack merit. See People v. Pendleton,
223 Ill. 2d 458, 474-75 (2006) (if counsel did not include a claim from the pro se petition in an
amended petition, one may infer that counsel chose not to pursue it); People v. Bass, 2018 IL App
(1st) 152650, ¶ 16 (“not every petition can be amended to state a substantial constitutional claim”);
People v. Johnson, 232 Ill. App. 3d 674, 678 (1992) (failure to amend a petition does not establish
unreasonable assistance without showing that petition could have been successfully amended).
- 14 -
No. 1-21-1608
¶ 35 This is especially so where a petition advances to the second stage because the circuit court
failed to make a timely first-stage determination. See Addison, 2023 IL 127119, ¶ 26 (finding
counsel provided unreasonable assistance where circuit court advanced petition on its merits and
counsel pursued pro se claims but failed to properly shape them, and distinguishing Greer, where
petition advanced under 90-day rule and counsel determined it was nonmeritorious (citing Greer,
212 Ill. 2d at 200-05)); see also Bass, 2018 IL App (1st) 152650, ¶ 19 (where pro se petition
escapes first-stage review, counsel may determine a petition is frivolous or patently without merit
(citing Greer, 212 Ill. 2d at 206)). Even where a petition is not frivolous or patently without merit,
counsel may nevertheless determine it has an uncurable defect and decline to amend it without
providing unreasonable assistance. Bass, 2018 IL App (1st) 152650, ¶ 19.
¶ 36 Here, defendant filed his pro se petition under the Act in December 2016. The circuit court
summarily dismissed it as frivolous or patently without merit in April 2017, more than 90 days
after defendant filed the petition. Accordingly, we reversed the dismissal and the circuit court
docketed defendant’s petition for second-stage proceedings and appointed postconviction counsel.
Gordon, No. 1-17-1666 (dispositional order). Thus, counsel could evaluate defendant’s pro se
claims and decline to make amendments that counsel determined would not cure a claim’s defects.
Bass, 2018 IL App (1st) 152650, ¶ 19. The record suggests that is what counsel did. Although he
did not file an amended petition and elected to stand on the pro se claim about impeaching Mitchell
without amending or arguing it, he (1) submitted exhibits to support one of defendant’s claims, (2)
filed a response to the State’s motion to dismiss which argued that claim was meritorious and not
procedurally defaulted, and (3) at a hearing on the State’s motion, argued about both of defendant’s
other claims.
- 15 -
No. 1-21-1608
¶ 37 Thus, to show that postconviction counsel failed to comply with Rule 651(c) by not
amending defendant’s pro se claim that trial counsel was ineffective for failing to impeach
Mitchell, defendant must show that counsel could have successfully amended the claim. Johnson,
232 Ill. App. 3d at 678 (failure to amend a petition does not establish unreasonable assistance
without showing that petition could have been successfully amended). We find that defendant has
not made such a showing.
¶ 38 To establish ineffective of assistance of counsel, a defendant must show that counsel
performed deficiently and he was prejudiced such that there is a reasonable probability that, absent
the deficiency, the outcome of his trial would have been different. See People v. Pingelton, 2022
IL 127680, ¶ 53. We find that defendant has not shown that postconviction counsel could establish
he suffered prejudice for any failure by trial counsel to impeach Mitchell or notify the State about
defendant’s alibi defense.
¶ 39 As discussed on direct appeal, the evidence against defendant was overwhelming. Gordon,
2016 IL App (1st) 134004, ¶ 47. He was identified in court and on video as one of the robbers, a
photograph of him at the police station depicted him wearing the same clothes as the video, he
gave detailed inculpatory statements, and his palm print was on a vehicle that the robbers jumped
over in an attempt to escape from the store. Given that overwhelming evidence, the outcome of
defendant’s trial would not have changed had trial counsel impeached Mitchell’s testimony that
she saw defendant hop a fence behind the store with a firearm and a surgical mask, pursued on
foot, and apprehended defendant behind the address on the 8600 block of Calumet. Consequently,
defendant’s pro se claim was without merit and Rule 651(c) did not require postconviction counsel
- 16 -
No. 1-21-1608
to advance that claim. Greer, 212 Ill. 2d at 205 (counsel need not advance frivolous or spurious
claims).
¶ 40 Moreover, defendant has not shown that counsel could have successfully amended his pro
se claim into a claim that trial counsel was ineffective for failing to timely disclose to the State that
defendant would testify to an alibi defense. Defendant maintains that, although he decided not to
testify, he only did so because of counsel’s deficiency in failing to alert the State to the alibi
defense, which opened the possibility that the court would bar him from testifying. However, trial
counsel indicated that if defendant chose to testify he would be the defense’s only witness.
Defendant makes no argument as to how his uncorroborated alibi testimony would have affected
the outcome of his trial given the overwhelming evidence against him, which included video and
forensic evidence. Thus, he has not shown that postconviction counsel could have successfully
amended his petition to state a claim that trial counsel was ineffective regarding the alibi defense.
See Pingelton, 2022 IL 127680, ¶ 53 (ineffective assistance requires showing that there is a
reasonable probability the result of the proceeding would have been different but for counsel’s
error); Johnson, 232 Ill. App. 3d at 678 (failure to amend a petition does not establish unreasonable
assistance without showing that petition could have been successfully amended).
¶ 41 Nor does the record establish that postconviction counsel could have established that trial
counsel performed deficiently regarding the alibi defense, or failed to investigate whether trial
counsel performed deficiently. Defendant contends that the record does not indicate that
postconviction counsel spoke with him about trial counsel’s failure to timely disclose the alibi
defense. He further argues that it is unlikely that trial counsel only learned of defendant’s intent to
- 17 -
No. 1-21-1608
testify to that information a few days before trial began, as trial counsel litigated a pretrial motion
to suppress based on defendant’s affidavit that he was arrested while walking on 87th.
¶ 42 However, defendant’s arguments on this point disregard Rule 651(c)’s presumption of
reasonable assistance. Postconviction counsel averred in the Rule 651(c) certificate that he
investigated defendant’s pro se petition, and the record suggests he was aware of our opinion from
defendant’s direct appeal. We noted there that the record (1) was unclear as to when trial counsel
actually knew defendant intended to testify at trial that he was arrested while walking on 87th, and
(2) suggested that defendant kept trial counsel “in the dark” as to whether he would testify and
what his testimony would be. Gordon, 2016 IL App (1st) 134004, ¶¶ 43, 45.
¶ 43 Defendant’s pro se petition shed no further light on when trial counsel learned of his intent
to testify at trial, and defendant did not prepare an affidavit providing that information. Therefore,
the record does not negate the possibility that postconviction counsel investigated that question
and learned that there was no factual basis upon which to argue trial counsel performed deficiently.
See People v. Turner, 2023 IL App (1st) 191503, ¶¶ 37-38, 43-45 (rejecting arguments that counsel
should have provided evidence supporting claims where counsel filed Rule 651(c) certificate and
record did not negate possibility that counsel determined there was no evidence to support the
claims); see also Johnson, 154 Ill. 2d at 241 (where petition is not supported by affidavits courts
may ordinarily presume that counsel unsuccessfully attempted to obtain supporting affidavits).
Further, counsel was not required to explain why he decided to stand on defendant’s pro se claim
as such an explanation may have been contrary to defendant’s interests. See Turner, 2023 IL App
(1st) 191503, ¶¶ 59-61 (postconviction counsel may stand on pro se petition without explanation
- 18 -
No. 1-21-1608
where counsel determines petition lacks merit, as such an explanation could harm defendant’s
interests).
¶ 44 Accordingly, defendant has not shown that postconviction counsel failed to comply with
Rule 651(c) by providing an unreasonable level of assistance. Postconviction counsel is entitled to
a presumption that he provided reasonable assistance. Defendant’s pro se claim that trial counsel
was ineffective for failing to impeach Mitchell was without merit, and defendant has not shown
that claim could have been successfully amended or that postconviction counsel failed to
investigate whether trial counsel performed deficiently regarding the alibi defense. Consequently,
defendant has failed to rebut the presumption that counsel provided reasonable assistance. We
therefore affirm the circuit court’s judgment.
¶ 45 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 46 Affirmed.
- 19 -