People v. Smith ( 2024 )

2024 IL App (1st) 221823-UTHIRD DIVISION
May 1, 2024
No. 1-22-1823
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 08 CR 0424901
)
JAMES SMITH, )
) Honorable Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
JUSTICE D.B. WALKER delivered the judgment of the court.
Presiding Justice Reyes and Justice Van Tine concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in dismissing defendant’s successive postconviction
petition at the second stage because he failed to make a substantial showing of
actual innocence. Defendant’s postconviction counsel provided him with
reasonable assistance. Affirmed.
¶2 Following a bench trial, defendant James Smith was found guilty of two counts of
attempted murder and was sentenced to consecutive terms of 26 years’ and 35 years’
imprisonment. Following dismissal of his direct appeal and denial of his initial postconviction
petition, defendant filed a pro se successive postconviction petition. The trial court advanced the
successive petition to the second stage and appointed counsel to represent defendant. The trial
No. 1-22-1823
court subsequently granted the State’s motion to dismiss. On appeal from that dismissal, defendant
contends that he made a substantial showing of actual innocence or in the alternative, he was
denied the reasonable assistance of postconviction counsel. We affirm.
¶3 BACKGROUND
¶4 Defendant was charged with four counts of attempted first degree murder, two counts of
aggravated battery with a firearm, four counts of aggravated discharge of a firearm, and five counts
of aggravated battery, in connection with the shooting of Mary and Bryant1 Solomon on December
26, 2007. The following evidence was adduced at trial.
¶5 Mary Solomon
¶6 Mary Solomon testified that she lived in an apartment at 3234 West Madison Street in
Chicago and had five children ranging in age from two to fourteen. On Christmas Day in 2007,
she had invited family and friends over for dinner. At around 1 a.m. on December 26, people
started leaving, but her younger brother (Bryant) remained at her apartment along with Pamela
Herron and Shandrika Dixon. In addition, Mary’s other friends, Crystal Moore and Winter Parker,
arrived at around 1:30 a.m. and 2 a.m., respectively. Moore, who was the mother of defendant’s
child, lived in the apartment building across from Mary’s.
¶7 Soon after Moore arrived, Mary saw Moore and Bryant go into the bathroom together, but
Mary “put them out” of the bathroom because they were “trying to do sexual things.” Bryant and
Moore then went into the hallway outside of Mary’s apartment, after which Mary could hear them
“trying to have sex.”
1
Although Bryant testified at trial that he also goes by the name of “Brian Solomon,” the
signature at the bottom of the complaint in this case was signed “Bryant Solomon.” We therefore
will refer to this victim as “Bryant.”
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¶8 Around ten minutes after Bryant and Moore went into the hallway, Mary heard “hollering
and screaming,” and when she went to the hallway, she saw defendant (whom she identified in
court) and Bryant fighting. Mary pulled them apart, and then defendant left the building while
Bryant went back into Mary’s apartment.
¶9 According to Mary, a little after 2 a.m., she walked with her brother out to a car driven by
her “God brother,” Leonard Bunch, whom she also knew as “Bird.” When Bryant got into the car,
defendant “came from nowhere” and slapped her on the left side of her face with his hand. Herron,
who was standing next to Mary, began running away, and defendant started chasing her.
¶ 10 Bryant then got out of the car, and he and defendant began fighting again. Eventually,
defendant got into a car, and “just start[ed] trying to run everybody over.” Mary said that defendant
hit Bryant with the car—specifically, the front bumper of the car struck the bottom of Bryant’s
leg. Defendant then drove off with two other people in the car. Mary, Bryant, Herron, and Parker
then went back to Mary’s apartment.
¶ 11 Back at the apartment, the group sat down in the front room and discussed what had just
happened. Mary sat on a stool near the three front windows, Bryant sat on the couch facing the
windows, Herron and Parker were seated at the table in the front room, and Dixon sat near the
front door. Mary said that there were shades covering the windows, but two of them were down,
while one of them was “kind of up.” Mary nonetheless was able to see outside because one of the
shades was torn in the middle. In addition, Mary stated that she had positioned her head in between
the shades so she could see out of the window. There was nothing blocking her view.
¶ 12 After about ten minutes, she saw defendant get out of a car and cross the street, heading
toward her building. Defendant, who was wearing a black or gray “hood,” ran to her apartment
until he was about one or two inches from her window. Mary could see his face, which was “very
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close” to her. At that point, defendant asked Mary, “where that [sic] n***** at now?” Mary
responded, “[H]e’s not here,” referring to Bryant. Defendant repeated his question, and Mary
again said Bryant was not there. Mary explained that Bryant was still sitting on the couch and she
was “trying to hide [him]” from defendant.
¶ 13 Mary said that defendant “had this look on his face,” and she could see him “pulling
something” near his waist. Mary tried to turn toward Bryant and tell everyone to run. She then
heard defendant say, “[T]here that n***** go right there,” and then “pow pow.”
¶ 14 Mary described feeling a burning sensation all through her body and her chest, starting
from her left arm. Her legs “gave out,” and she fell to the floor. Mary explained that the bullet hit
her and turned her halfway around in the stool, and she fell down the wall “on [her] back.”
¶ 15 After she fell, she heard another five or six gunshots before they stopped. She then heard
people saying, “I’m shot. I’m shot.” Although she testified that paramedics came and took her to
the hospital, she did not remember that because she was “out.” She remained in the hospital for
nearly three months, but she could no longer walk when she was discharged.
¶ 16 Mary stated that she no longer has any movement in the lower half of her body, and she
can only “feel from my chest up.” In response to the State’s question, she said that she had known
defendant for about two years prior to the shooting.
¶ 17 On cross-examination, Mary said that Herron and Parker arrived at around 11 p.m. and 2
a.m., respectively. She further acknowledged that she had served daiquiris at the party, but that
she had had only one. In addition, she recalled that defendant had braids in his hair at the time of
the shooting (the trial court then observed for the record that defendant had an Afro and no braids
at trial). Mary confirmed that defendant was wearing a white t-shirt, blue jeans, and a jacket, and
she did not see a gun or the silhouette of a gun during either the fight in the hallway or the fight
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shortly thereafter on the sidewalk. She stated that, at the time of the shooting, defendant did not
have his hood up over his head or face, and she denied telling detectives that the person who shot
her was wearing a hood that covered his head. On redirect examination, Mary stated that, although
she had a daiquiri, it did not hinder her ability to see.
¶ 18 Pamela Herron
¶ 19 Pamela Herron then testified that she went to Mary’s house on December 25, 2007, for a
Christmas party, arriving at around 8 p.m. Herron said that her friend, Katina Dunn, came with
her. Herron said that Bryant was already there, and after Moore arrived, they went into Mary’s
bathroom. Mary then “holler[ed]” at them to get out of the bathroom, so they went back to the
couch initially before Moore left the apartment. Bryant eventually left the apartment as well.
Herron then heard the “buzzer” to Mary’s apartment sound and voices from the speaker stating, “I
about to beat your b**** a** or something.”
¶ 20 Herron then ran to the back of the apartment to tell Mary about the fight. She and Mary
went into the hallway and saw defendant (whom Herron identified in court) fighting with Bryant.
Mary broke up the fight, and then Herron saw defendant leave the building. Mary, Herron, and
Bryant then went back into Mary’s apartment. Herron did not see where Moore went.
¶ 21 According to Herron, Mary wanted Bryant to leave because Mary did not want any more
“chaos” in her house. Herron said that she and Mary walked Bryant out to “Bird,” who was in his
car. Bryant got into the car, and then defendant drove up “real fast” to them, got out of the car,
and hit Mary with his hand. Herron then saw Bryant get out of the car and start fighting with
defendant again. When the fight ended, defendant got into his car and started “reversing back and
forth like [he was] trying to hit everybody with his car.” Herron said that he tried to hit her first,
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and then he hit Bryant by his knees. Defendant then drove off to the west. Herron, Mary, Bryant,
and Parker then returned to Mary’s apartment.
¶ 22 When the group returned to Mary’s apartment, they sat in the living room. Herron said
that she sat at the table, Mary sat at the window, Bryant was on the couch (directly across from
the window), Parker was across from Herron, and “Katina” (Herron’s friend) was on another
couch. Mary was looking out of her window through a split in the window shade, with the larger
portion of the split shade resting over Mary’s right shoulder. The group was talking about the
events that had just transpired. Mary and Herron believed that defendant would return, but Bryant
disagreed. Herron then heard a loud “bang” on the window. Herron looked at the window and
saw defendant—not through the slit, but rather “through the side.”
¶ 23 Herron then heard defendant say, “[W]here the f*** that b**** a** n***** Brian [sic]
at?” Herron heard Mary say Bryant was not there. According to Herron, defendant again asked,
“[W]here that n***** at?,” and Mary again told him that Bryant was not there. Herron heard
defendant say, “[T]here he go right there.” She then saw “fire” coming from the window area.
She fell down under the table and heard the sound of multiple gunshots. Herron identified
defendant in court as the person who was at the window when she saw fire coming from the
window and heard the gunshots.
¶ 24 Herron said she heard more than five shots and possibly as many as eight. Herron heard
everyone saying that they were shot and noted that she was “grazed” between her legs. She looked
over at Mary and saw that Mary was lying on the floor under the window.
¶ 25 On cross-examination, Herron stated that she had seen defendant “a lot of times” but had
never spoken to him. Herron further stated that defendant’s hair at the time of the shooting was
different in that he had small braids that stopped above the back of his neck. Herron described
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No. 1-22-1823
being about four feet from the window, and she said that she saw the front of defendant’s face.
Herron further explained that, although the slit in Mary’s window shade was only approximately
one inch wide, the “right part” of the split shade was pulled away from the window where the
portion of it was over Mary’s back. Herron said that she saw his face until the shots were fired
and estimated that it was about “a few minutes.”
¶ 26 Bryant Solomon
¶ 27 The State next called Bryant Solomon to testify. At the outset, Bryant admitted that he was
currently incarcerated and that he had been convicted of multiple drug-related offenses on
December 22, 2008, June 29, 2006, November 3, 2004, and April 22, 1999. In addition, he
conceded that he was convicted of aggravated battery of a police officer on April 21, 2000 and
unlawful use of a weapon by a felon on April 22, 1999. Bryant then testified as to the events of
the evening, which was substantially the same as Mary’s and Herron’s testimony. Bryant added
that he saw defendant (whom he identified in court) start shooting and heard five or six gunshots.
Bryant stated that he was shot in his right foot and found the bullet lodged in his shoe.
¶ 28 Shandrika Dixon
¶ 29 Shandrika Dixon testified that Mary was her cousin and that, on December 25, 2007, she
was at Mary’s apartment for dinner. Dixon’s testimony as to the events leading up to the shooting
was substantially the same as Mary’s. Dixon stated that, after the fight in the hallway between
defendant and Bryant, Dixon returned to the apartment and did not accompany Mary when she
and others went outside to walk Bryant to “Bird’s” car. Dixon remained inside the apartment and
did not see the second fight that took place.
¶ 30 Dixon said that, when the group returned to the apartment, she noticed that Mary looked
upset and was holding the right side of her face. Shortly after returning to the apartment and while
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Dixon was sitting by the front door, she saw Mary “open[] up the shade at the slit” and look out of
the window. Dixon confirmed that she could see out of that window from her vantage point.
Dixon said she saw defendant (whom she identified in court) at the window, about three to four
inches from it. Dixon heard defendant ask Mary, “[W]here that n***** Brian [sic] at,” and Mary
say that Bryant was not there. Dixon then heard defendant again ask Mary, “[W]here that n*****
at, where he at,” and Mary repeat that Bryant was not there. Next, Dixon heard defendant say,
“[T]here that n***** go right there.” Immediately afterwards, Dixon saw a flash of light from the
window, which she said was “the reflection off the bullet *** when you shoot,” and then the sound
of glass shattering. Dixon collided with Bryant and then ran to the back. Dixon heard about six
gunshots and then “peeked around the corner” from the kitchen to see if defendant was still there.
She saw Mary lying on the floor.
¶ 31 Germaine Plase
¶ 32 Germaine Plase testified that, in the early morning hours of December 26, 2007, he was
drinking with some friends in the parking lot near Mary’s apartment building. Plase saw only the
fight between defendant (whom he identified in court) and Bryant “[o]n the curb” next to Madison
Street. After the fight, Plase saw defendant drive westbound on Madison. Later, Plase saw
someone who “looked like” defendant walking eastbound on Madison toward Mary’s apartment.
Plase said the individual was about 50 feet from him and it looked like that person had a gun. The
individual looked at Plase and his friends, and they then “retreated to the back of the parking lot.”
Plase then heard five or six gunshots from the direction of Mary’s apartment. Plase saw the shooter
get into a silver car and drive off. Plase ran to Mary’s apartment and saw her bleeding on the floor
by the window. Plase later provided a written statement to an assistant state’s attorney. Plase said
he did not remember telling the assistant state’s attorney that he saw defendant get out of the car
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No. 1-22-1823
and walk toward him and his friends and that defendant was only about 20 feet from him at that
time. On cross-examination, Plase admitted that he had been drinking “Gray [sic] Goose” for
about 20 minutes before the fight he witnessed between defendant and Bryant, but Plase stated that
he was sober. Plase further stated that, when defendant walked to Mary’s apartment holding a
gun, defendant was wearing a “hoodie” with the hood pulled over his head, covering defendant’s
hair and the side of his face.
¶ 33 Additional Trial Proceedings
¶ 34 The parties then stipulated, inter alia, that (1) Bryant identified defendant as the shooter in
a photo array while Bryant was at the hospital following the shooting and (2) various bullet
fragments recovered from Mary’s body, Bryant’s foot, Bryant’s shoe, and throughout the
apartment were fired from the same .357- or .38-caliber weapon.
¶ 35 After the parties rested and presented their closing arguments, the trial court found
defendant guilty of the attempted first-degree murder of Bryant and Mary. The trial court
subsequently sentenced defendant to an aggregate term of 61 years’ imprisonment on his
convictions. Defendant appealed his conviction and sentences, but this court later granted
defendant’s motion to dismiss his appeal. People v. Smith, No. 1-09-2261 (Oct. 19, 2010).
¶ 36 Defendant’s Initial Postconviction Petition
¶ 37 On April 11, 2011, defendant filed his initial postconviction petition, arguing that (1) his
jury trial waiver was unknowing and unintelligent because of ineffective assistance of trial counsel;
(2) he received ineffective assistance of trial counsel for failure to call James Davis to testify that
another individual and not defendant was the shooter; and (3) the trial court should allow him to
obtain the unredacted police reports to determine whether trial counsel was ineffective for failure
to prove-up “crucial impeachment evidence” of Mary and Herron.
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¶ 38 As to the second claim, defendant attached the affidavit of James Davis, who stated that
defendant was neither the shooter nor at the scene at the time of the shooting, and the affidavits of
Moore, Carolyn Turner (defendant’s mother), and Ronald Renfro (defendant’s stepfather), all of
whom stated that they told trial counsel that James Davis was available to testify. The trial court
held a third-stage evidentiary hearing on the first claim, at which postconviction counsel stated
that they were withdrawing the second and third claims. The trial court denied defendant’s petition
after the hearing, and we affirmed. People v. Smith, 2014 IL App (1st) 130172-U.
¶ 39 Defendant’s Second Postconviction Petition
¶ 40 On August 6, 2015, defendant filed the instant successive postconviction petition.
Defendant alleged, inter alia, that he was alleging actual innocence, thus excusing him from both
(1) showing cause and prejudice (for failing to raise the claims in his initial petition) and
(2) seeking leave from the trial court to file his successive petition. Defendant argued that he was
denied his right to a “reasonable pretrial investigation” and his right to present a defense based
upon trial counsel’s failure to present the testimony of alibi and occurrence witnesses.
¶ 41 Defendant again attached the affidavits of Moore, his mother, and his stepfather that he
had attached to his initial postconviction petition. In addition, defendant attached affidavits from
Tanya Robinson and Tracey Davis. Robinson stated in her affidavit that defendant was at her
grandmother’s Christmas party at the time of the shooting and that she, her grandmother, and
defendant had all asked defendant’s trial counsel to call them as witnesses, but counsel refused.
¶ 42 Tracey Davis stated in her affidavit that she personally knew defendant because he had a
child with her cousin. She then stated that, at around 3:15 a.m. on December 26, 2007, she had
been looking out of her grandmother’s apartment when she saw a car pull up in front of the building
(also at 3234 West Madison Street) and four individuals get out of the car. One of the individuals
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she knew as “Itevis” was about 50 feet from her and carrying a gun. Tracey stated that she heard
six gunshots and then saw the four individuals get back into their car and drive off. She added that
defendant, who she said was the father of her cousin’s child, was not the shooter or one of the
others in the car. Tracey explained that she did not come forward because she had feared for her
safety until recently when she found out that Itevis was dead.
¶ 43 On October 29, 2015, the trial court advanced the petition to the second stage, appointed
counsel to represent defendant, and continued the matter to December 3, 2015. At that time, an
assistant public defender stated that she had been assigned to the case and had spoken to the
assistant state’s attorney, and that she was seeking the case transcripts and requesting entry of an
agreed order continuing the matter to March 3, 2016. On March 3, 2016, the assistant public
defender informed the court that defendant had a “voluminous” postconviction petition and had
just submitted additional affidavits for her review. She added that she was still waiting for the
transcripts. The cause was thereafter continued multiple times.
¶ 44 On June 29, 2017, the assistant public defender informed the trial court that she had not
had an opportunity to review the “seven volumes of transcripts” in the case. The matter was then
eventually continued to April 12, 2018. On that date, counsel informed the court that she had
noticed “some filing, perhaps a pro se filing,” but she had not received anything. The trial court
had her review the court file, and after finding an “addendum” that defendant had filed pro se, the
court arranged to have a copy made for her.
¶ 45 The cause was again continued multiple times to October 25, 2018. At that time, the cause
was assigned to Assistant Public Defender Price-Horton, who requested a continuance to review
the file and pleadings. The cause was again continued.
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¶ 46 On March 9, 2020, Assistant Public Defender Price-Horton filed a certificate pursuant to
supreme court rule 651(c) (Ill. S. Ct. R. 651(c) (eff. July 1, 2017)). Price-Horton’s certificate
stated that she had reviewed the appellate records (including the two prior appellate court orders),
the transcripts of defendant’s trial and sentencing hearing, as well as the “court file.” Price-Horton
noted, however, that she was unable to review private trial counsel’s file because he was no longer
practicing law. Finally, she stated that she had not filed an amended petition because defendant’s
pro se postconviction petition “adequately set forth” defendant’s claims.
¶ 47 The State subsequently moved to dismiss defendant’s successive postconviction petition.
On November 29, 2022, the trial court held a hearing on the State’s motion. During the hearing,
the State argued, inter alia, that Tracey Davis’ affidavit lacked specificity where it failed to explain
“who this person is, how she came to learn of their [sic] existence.” The State added that the claim
in the affidavit was rebutted by the record because “four or five different people” had identified
defendant as the shooter.
¶ 48 In response, defendant’s postconviction counsel stated that, “in reviewing the previous trial
information, as well as anything new, which does not exist, I have not been able to find anything
that would be new evidence that would support this second successive petition.” The trial court
then asked her for her “position” on the Tracey Davis affidavit. Counsel responded, “I think the
information contained therein is very brief, and *** it’s very brief in its explanation.” She added
that she did not think that it was “very clearly stated” and that it would raise “plenty of questions.”
She further opined, “I don’t think there’s any clear newness with regard to that.” At the conclusion
of the hearing, the trial court granted the State’s motion.
¶ 49 This appeal follows.
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¶ 50 ANALYSIS
¶ 51 Defendant first contends that the trial court erroneously granted the State’s motion to
dismiss his successive postconviction petition at the second stage. Specifically, defendant argues
that the successive petition and the Tracey Davis affidavit, which stated that an individual she
knew as “Itevis” committed the shooting, provided a substantial showing of his actual-innocence
claim, thus warranting a third-stage evidentiary hearing. In the alternative, defendant contends
that postconviction counsel rendered unreasonable assistance when she failed to conduct “further
investigation *** to learn the full name of the shooter” and provide a more detailed affidavit.
Defendant argues that, on this claim, this court should reverse the dismissal of his successive
petition and remand the cause for appointment of new counsel and further second-stage
proceedings. We first consider the dismissal of his successive postconviction petition.
¶ 52 The Dismissal of Defendant’s Successive Postconviction Petition
¶ 53 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014) (Act)
allows a defendant to challenge a conviction or sentence for violations of federal or state
constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). An action for
postconviction relief is a collateral proceeding rather than an appeal from the underlying judgment.
People v. Williams, 186 Ill. 2d 55, 62 (1999). Res judicata and waiver will limit the range of issues
available to “ ‘constitutional matters which have not been, and could not have been, previously
adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74 (2000) (quoting People v. Winsett, 153 Ill.
2d 335, 346 (1992)). Accordingly, rulings on issues that were previously raised at trial or on direct
appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were
not, will ordinarily be deemed waived. Id. at 274; 725 ILCS 5/122-3 (West 2014).
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¶ 54 Postconviction proceedings contain three stages. People v. Tate, 2012 IL 112214, ¶ 9.
At the first stage, the trial court independently reviews the petition, taking the allegations as true,
and determines whether the petition is frivolous or patently without merit. Id. If the petition has
no arguable basis either in law or in fact, the court may summarily dismiss it as frivolous or
patently without merit. Id. If it is not summarily dismissed, the petition advances to the second
stage, where counsel may be appointed to an indigent defendant, and where the State may respond
to the petition. Id. ¶ 10. At this stage, the court determines whether the petition and any
accompanying documentation make a substantial showing of a constitutional violation. Id. If no
such showing is made, the petition is dismissed. Otherwise, the petition is advanced to the third
stage for an evidentiary hearing. Id.
¶ 55 In this case, the petition was dismissed at the second stage of proceedings. During the
second stage of proceedings, a defendant bears the burden of making a substantial showing of a
constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35. This stage, however, only
tests the legal sufficiency of the petition. Unless the allegations in the petition are positively
rebutted by the record, they are taken as true, and the question to be resolved at the second stage
is whether those allegations establish a constitutional violation. Id. “In other words, the
‘substantial showing’ of a constitutional violation that must be made at the second stage [citation]
is a measure of the legal sufficiency of the petition’s well-pled allegations of a constitutional
violation, which if proven at an evidentiary hearing,” would entitle the defendant to relief.
(Emphasis in the original.) Id.¶ 56 The Act contemplates the filing of only a single petition. People v. Jackson, 2021 IL
124818, ¶ 27 (citing People v. Robinson, 2020 IL 123849, ¶ 42; 725 ILCS 5/122-3 (West 2014)
(“Any claim of substantial denial of constitutional rights not raised in the original or an amended
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petition is waived.”)). However, the bar against a successive filing will be relaxed when a
defendant raises either (1) a constitutional claim by satisfying the cause-and-prejudice test (725
ILCS 5/122-1(f) (West 2014)), or (2) a claim of actual innocence. Id. (citing Robinson, 2020 IL
123849, ¶ 42 (citing People v. Edwards, 2012 IL 111711, ¶ 23)).
¶ 57 Defendant here has raised a claim of actual innocence. To establish this type of claim, 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. Id. ¶ 41. Within the
context of an actual innocence claim, “newly discovered” evidence is evidence that was
“discovered after trial and that the defendant could not have discovered earlier through the exercise
of due diligence.” Id. ¶ 42. The conclusive nature of the evidence is the most important factor.
Edwards, 2012 IL 111711, ¶ 40 (citing People v. Washington, 171 Ill. 2d 475, 489 (1996)). In
essence, to meet the conclusiveness element, the proffered new evidence must “raise the
probability that, in the light of the new evidence, it is more likely than not that no reasonable juror
would have convicted petitioner.” Id. We review the trial court’s dismissal of a postconviction
petition at the second stage de novo. People v. Bass, 2018 IL App (1st) 152650, ¶ 13 (citing
Pendleton, 223 Ill. 2d at 473).
¶ 58 In this case, the trial court did not err in granting the State’s motion to dismiss. Taking the
allegations in the Tracey Davis affidavit as true, as we must (Domagala, 2013 IL 113688, ¶ 35),
this purported evidence is not “of such conclusive character that it would probably change the
result on retrial” (Jackson, 2021 IL 124818, ¶ 41). Tracey stated that, at the time of the shooting,
she saw someone she knew as Itevis commit the offense. At best, this merely contradicts the
eyewitness testimony of Mary, Bryant, Herron, and Dixon, some of whom were mere inches from
defendant when he shot into the apartment from outside the front window. On these facts, since
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the Tracey Davis affidavit does not raise the probability that, in the light of the new evidence, it is
more likely than not that no reasonable juror would have convicted petitioner, defendant cannot
meet the conclusiveness element. See Edwards, 2012 IL 111711, ¶ 40. We further note that the
evidence in the Tracey Davis affidavit cannot reasonably be characterized as newly discovered:
Tracey stated in her affidavit that she knew defendant because he had a child with her cousin. Her
purported testimony should therefore have been discovered earlier through the exercise of due
diligence. On this additional basis, defendant’s actual innocence claim fails, and we must reject
defendant’s contention of error on this point.
¶ 59 The Unreasonable Assistance of Postconviction Counsel Claim
¶ 60 Defendant further claims that his postconviction counsel provided unreasonable assistance
because she did not investigate to learn the full name of the purported shooter, “Itevis,” whom
Tracey named in her affidavit. Defendant argues that this additional information would have
resulted in a more detailed affidavit to support his actual innocence claim. This alleged failure,
according to defendant, denied him the right to the reasonable assistance of counsel. He thus asks
that, should we reject his request for a third-stage evidentiary hearing on his actual innocence
claim, we should reverse the trial court’s granting of the State’s motion to dismiss and remand this
matter “for the appointment of new counsel and further second-stage proceedings.”
¶ 61 The right to the assistance of counsel at trial is derived from the sixth amendment of the
United States Constitution (U.S. Const., amend. VI), applicable to the states through the fourteenth
amendment (U.S. Const., amend. XIV). People v. Ballard, 206 Ill. 2d 151, 171 (2002). By
contrast, the assistance of counsel in postconviction proceedings “is a matter of legislative grace
and favor which may be altered by the legislature at will.” (Internal quotation marks omitted.)
People v. Owens, 139 Ill. 2d 351, 364 (1990). Since the right to counsel in postconviction
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proceedings is derived from a statute rather than the Constitution, postconviction petitioners are
guaranteed only the level of assistance that the statute provides. Id. Section 122-4 of the Act (725
ILCS 5/122-4 (West 2014)) and Supreme Court Rule 651 (Ill. S. Ct. R. 651 (eff. July 1, 2017))
provide postconviction petitioners with only “a reasonable level of assistance” in postconviction
proceedings and not the same level of assistance that the Constitution guarantees to defendants at
trial. (Emphasis in the original.) Owens, 139 Ill. 2d at 364.
¶ 62 To ensure this level of assistance, Rule 651(c) imposes three duties on appointed
postconviction counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Pursuant to the rule, either
the record or a certificate filed by the attorney must show that counsel (1) consulted with the
petitioner to ascertain his contentions of constitutional deprivations; (2) examined the record of
the trial proceedings; and (3) made any amendments to the filed pro se petitions necessary to
adequately present the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2007); Perkins,
229 Ill. 2d at 42. The purpose of the rule is to ensure that postconviction counsel shapes the
defendant’s claims into a proper legal form and presents them to the court. People v. Profit, 2012
IL App (1st) 101307, ¶ 18 (citing Perkins, 229 Ill. 2d at 44). Substantial compliance with Rule
651(c) is sufficient. Id. Whether counsel fulfilled her duties under Rule 651(c) is also subject to
de novo review. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
¶ 63 Here, postconviction counsel substantially complied with her obligations pursuant to rule
651(c). At the outset, she filed a Rule 651(c) certificate, which raises a rebuttable presumption
that she complied with the rule’s requirements and provided reasonable assistance. Profit, 2012
IL App (1st) 101307, ¶ 19. More importantly, counsel’s certificate stated that she reviewed the
trial and sentencing transcripts, the court filings, and appellate records, but she was unable to
review trial counsel’s file only because he was no longer practicing law. Counsel further stated
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that she did speak with defendant about his claims. Notably, counsel stated at the hearing on the
state’s motion to dismiss that she was unable to find “anything that would be new evidence” that
could arguably support defendant’s successive petition. Despite this thorough review, counsel was
unable to provide either (1) an additional affidavit to support the claims in the Davis affidavit or
(2) a revised affidavit from Davis that would provide sufficient detail to warrant a third-stage
hearing. Ordinarily, when a trial court rules on a motion to dismiss a postconviction petition that
is not supported by acceptable affidavits or other documents, it may “reasonably presume
postconviction counsel made a concerted effort to obtain affidavits in support of the claims but
was unable to do so.” People v. Carnalla-Ruiz, 2023 IL App (1st) 201183, ¶ 34 (citing People v.
Johnson, 154 Ill. 2d 227, 241 (1993)). The record in this case amply supports this conclusion.
Defendant’s claim on this point is thus meritless.
¶ 64 CONCLUSION
¶ 65 The trial court did not err in dismissing defendant’s successive postconviction petition at
the second stage because he failed to make a substantial showing of actual innocence. In addition,
defendant’s postconviction counsel provided him with reasonable assistance. Accordingly, we
affirm the judgment of the circuit court of Cook County.
¶ 66 Affirmed.
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