People v. Avalos

2020 IL App (1st) 172452-USIXTH DIVISION
August 28, 2020
No. 1-17-2452
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party 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
Respondent-Appellee, ) Circuit Court of Cook County.
)
v. ) 11 CR 18247
)
JUAN AVALOS, ) Honorable Geary W. Kull,
) Judge Presiding.
Petitioner-Appellant. )
JUSTICE CONNORS delivered the judgment of the court.
Justices Cunningham and Harris concurred in the judgment.
ORDER
¶1 Held: Defendant received reasonable assistance of postconviction counsel
where postconviction counsel substantially complied with Rule 651(c) and
defendant’s underlying claims were meritless; affirmed.
¶2 Defendant Juan Avalos appeals from the second-stage dismissal of his postconviction
petition. In his petition, defendant argued, with the assistance of retained counsel, that his trial
counsel had been ineffective for various reasons. The State filed a motion to dismiss. Following
a hearing, the circuit court granted the State’s motion to dismiss. Defendant filed a motion to
reconsider. Following argument on the motion to reconsider, the circuit court denied defendant’s
No. 1-17-2452
motion. For the reasons below, we affirm the circuit court’s dismissal of defendant’s second-
stage postconviction petition.
¶3 I. BACKGROUND
¶4 Following a bench trial, defendant was convicted of three counts of attempted first degree
murder and sentenced to concurrent prison terms of 26 years. On appeal, defendant contended
that the evidence was insufficient to convict him beyond a reasonable doubt, and that trial
counsel was ineffective for not making a closing argument. The details of defendant’s bench trial
and appeal are discussed in our order on direct appeal, People v. Avalos, 2015 IL App (1st)
132656-U, but will be repeated here as necessary for a full understanding of the issues.
¶5 Defendant was charged with multiple counts of first-degree murder and aggravated
discharge of a firearm for allegedly shooting at Jose Juarez, Jordan Michalak, and Jadrien Reed.
Id. ¶ 3. At trial, both the State and the defense waived opening statements. Id. ¶ 4.
¶6 Reed, who was 18 years old at the time of trial, testified that at about 8:24 p.m. on the
night in question, he was walking to a party in his honor when he saw Juarez, a long-time friend,
with some other people. Id. ¶ 5. He then heard gunshots from the other side of nearby railroad
tracks. Id. He did not see who fired the shots but started running. Id. The police arrived
immediately and arrested Juarez and Michalak, who Reed knew from the neighborhood. Reed
was also arrested. Id.¶7 Juarez, who was also 18 years old at the time of trial, testified that he was “unsure” what
he was doing at about 8:24 p.m. on July 10, 2011. Id. ¶ 6. He recalled walking by himself to
Reed’s party and that he intended to meet Reed, Michalak, and a group of girls by the railroad
tracks. Id. He had just met Reed and Michalak when he heard gunshots and fled, without seeing
who fired the shots. Id. Police arrested him immediately and he was taken to the police station.
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Id. Juarez refused to identify anyone in the court room as the shooter. Id. When shown a
photographic array at trial, Juarez admitted seeing it before and acknowledged that his initials
were on the array and that one person’s photograph was circled. Id. However, he did not admit to
being shown the array by police detective Frank Schmalz the day after the shooting, or initialing
the array. Id. Defendant would not identify Detective Schmalz at trial. Id.¶8 In his trial testimony, Juarez did not recall being brought to the police station on October
5, 2011, nor could he recall meeting Detective Schmalz, Detective Carlos Garcia, and Assistant
State’s Attorney (ASA) Tom Sianis that day. Id. ¶ 7. He did recognize a five-page typewritten
statement bearing his signature on each page, and he admitted that the statement bore a
photograph of himself after initially denying that he recognized the photograph. Id. At first, he
testified that he signed the statement so he could leave the police station, then that he could not
recall dictating or signing the statement, and then recalled that he said some of the personal
matters therein while denying or not recalling that he said any of the substantive matters. Id.¶9 Juarez testified that he had no recollection of going to the courthouse, meeting ASA
Andres Almendarez, or testifying before the grand jury on October 6, 2011. Id. ¶ 8.
¶ 10 On cross-examination, Juarez testified that he did not recall being given a copy of his
statement or his grand jury testimony. Id. ¶ 9. He reiterated that he did not know and could not
identify who fired the shots on the day in question. Id.¶ 11 Detective Frank Schmalz testified that he investigated the shooting incident on July 10,
2011. Id. ¶ 10. He interviewed Juarez in the presence of his mother the following day. Id. Juarez
was shown a photographic array from which he identified defendant as the shooter. Id. Juarez
admitted that the shooting was preceded by an argument and then the throwing of rocks at
defendant by Juarez and his friends. Id. Detective Schmalz also interviewed Michalak and Reed.
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Id. On October 5, 2011, Detective Schmalz again interviewed Juarez after bringing him to the
police station. Id. Juarez gave a statement to Detectives Schmalz and Garcia and ASA Sianis,
and the latter prepared a typewritten statement. Id. The written statement was substantially
similar to the grand jury testimony. Id.¶ 12 ASA Almendarez described Juarez’s testimony to the grand jury as follows. At about
8:20 p.m. on July 10, 2011, Juarez was walking with Reed and Michalak near the railroad tracks.
Id. ¶ 12. Juarez knew Reed and Michalak for several years and knew they were in gangs: Reed in
the Four Corner Hustlers and Michalak in the Spanish Lords. Id. As they walked, they saw
defendant and a friend of his. Id. Juarez knew defendant to be a member of the Twelfth Street
Players gang, and he and defendant had argued earlier that summer. Id. As defendant walked
towards the group from across the street, he told them he would “get [you] later” and said
“Spanish Lord Killer” and “Four Corner Hustler killer.” Id. The group replied, “Twelfth Street
Players killer.” Id. The group followed defendant and threw rocks at him until he stopped, drew
a gun from his backpack, and fired several shots in the direction of the group. Id. The group took
cover, but when they looked to see if defendant was still there, he fired again in their direction.
Id. Juarez heard the bullets striking around them. Id.¶ 13 Juarez testified to the grand jury that he met with Detectives Schmalz and Garcia and
ASA Sianis the previous day and was interviewed with his mother’s permission. Id. ¶ 13. After
the interview, Juarez signed a written statement based on his interview that was substantially
similar to his grand jury testimony. Id.¶ 14 Police sergeant David Kopka testified that he responded to a reported shooting on the
night of July 10, 2011. Id. ¶ 15. He detained Reed, Juarez, and Michalak as they fled the scene
together, and he found 10 to 15 spent shell casings in two groupings on the ground. Id.4
No. 1-17-2452
¶ 15 At the close of the State’s case, defense counsel made a motion for a directed finding,
arguing that the State failed to make a prima facie case as neither eyewitness identified the
shooter and their earlier statements were given when they were “of a tender age.” Id. ¶ 16.
Counsel argued that on the date of trial, the State was unable to produce a witness who would
identify defendant as the shooter, and did not present any corroborating evidence that defendant
had a gun on the day in question or was responsible for the shots. Id. Counsel characterized the
State’s case as unsuccessfully trying to refresh the recollection of their two eyewitnesses. Id. The
State responded that Juarez identified defendant as the shooter three times – from the
photographic array the next day, in his written statement, and in his grand jury testimony – and
the shell casings at the scene corroborated his account. Id. The court denied the motion. Id.¶ 16 Jordan Michalak testified for the defense that he saw who fired the shots on July 10,
2011, but neither defendant nor anybody else in the courthouse at trial was the shooter. Id. ¶ 17.
On cross-examination, Michalak testified that he was with Juarez and Reed and a few other
people on the night in question, when an argument arose with two other men. Id. Reed or Juarez
threw rocks at the two men, one of whom produced a gun and fired 10 to 15 shots at Michalak’s
group. Id. The group ran but were quickly detained by police, while the shooter and his
companion fled. Id. Michalak was taken to the police station and interviewed by Detective
Schmalz where he described the events as he did at trial. Id. He could not describe the shooter
beyond being a Hispanic male and did not tell Detective Schmalz that he could identify the
shooter or offer to view a photographic array. Id.¶ 17 Detective Schmalz testified in rebuttal that when Michalak was interviewed, he admitted
that both he and Juarez threw rocks, and that the shooter was a Hispanic male Michalak knew
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No. 1-17-2452
from the neighborhood as an acquaintance’s brother. Id. ¶ 18. Michalak identified defendant
“[n]ot by name but by association.” Id.¶ 18 The State waived closing argument while reserving rebuttal, and defense counsel waived
closing argument. Id. ¶ 19. The trial court found defendant guilty on all counts. Id. ¶ 20. The
court found that Reed had “selective memory,” so his “testimony is absolutely of no
importance.” Id. While Juarez also had “selective memory,” he was “thoroughly impeached.” Id.He professed not to recall even appearing for the grand jury, much less any of his answers there,
and he professed to have no recollection of his written statement although he admitted it bore his
signature. Id. Noting that Michalak never came forward earlier “to say you’ve got the wrong guy
in custody,” the court found his testimony incredible. Id. Defendant was sentenced to 26 years in
prison. Id. ¶ 21.
¶ 19 On direct appeal, defendant argued that there was insufficient evidence to convict him
beyond a reasonable doubt, and that trial counsel was ineffective for not making a closing
argument. Id. ¶¶ 22, 26. This court rejected both arguments and affirmed the judgment on appeal.
Id. ¶ 28.
¶ 20 On August 5, 2016, defendant, with the assistance of retained counsel, filed a petition
pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2016)),
alleging that his trial counsel had been ineffective for failing to argue that defendant acted in
self-defense on the night in question. Defendant stated in the petition that “the evidence adduced
at trial demonstrates that evidence of self-defense was clearly and overwhelmingly shown by the
facts then presented; nonetheless his counsel did not raise that defense.” Defendant pointed to
trial testimony indicating that a group of individuals had been throwing rocks at defendant prior
to the shooting. Defendant further argued in his petition that Juarez had since been charged with
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No. 1-17-2452
murder in 2016, which should be considered newly discovered evidence that would “corroborate
his justifiable threat of force to defend himself, and to corroborate the reasonableness of his
belief that Juarez and his accompanying rock-throwers were dangerous.”
¶ 21 Attached to the petition was a verification affidavit from defendant stating that the
allegations in the petition were true and accurate, and a copy of Juarez’s inmate report from
Cook County Department of Corrections. Also attached was postconviction counsel’s Rule
651(c) certificate, which stated that counsel had spoken to defendant regarding his conviction
and sentence, and that he had made any necessary amendments to defendant’s petition. Ill. S. Ct.
R. 651(c) (eff. July 1, 2017). The certificate acknowledged, however, that counsel had not yet
received the entire trial court record. After receiving the trial record, counsel filed a supplemental
postconviction petition that did not raise any new arguments, but did cite to and include portions
of the trial record in support of defendant’s claims of ineffective assistance of trial counsel for
failing to raise self-defense.
¶ 22 The State filed a motion to dismiss both the original and supplemental petitions. The
State argued that the petitions were procedurally defective because there was no affidavit from
defendant that contained factual allegations supporting his claim of ineffective assistance of
counsel, defendant failed to make a substantial showing that trial counsel was ineffective, and
defendant failed to present any new, admissible evidence that would have changed the result of
the trial.
¶ 23 A hearing was held on April 14, 2017. At that hearing, the parties argued the merits of the
petition – namely, whether it was ineffective assistance of trial counsel to fail to raise self-
defense. The State argued that to claim self-defense, a defendant would have to admit that he was
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No. 1-17-2452
the shooter, whereas for reasonable doubt, the defendant is relying on the State’s failure to prove
he was the shooter. The trial court stated in part:
“[W]hat we’re talking about here is whether or not trial counsel would have – by
way of questioning those witnesses – acquiesce[d] that it was [defendant] that was
the shooter ***.”
So when we talk about admitting that he’s the shooter, it’s not a matter of
putting the defendant on and having him say: Yeah, I did it, but I did in self-
defense. It’s – I’m assuming that you’re arguing it’s the way the witnesses were
questioned.”
¶ 24 The State then argued that defendant “at this time, would prefer that his counsel had gone
with self-defense. That was not the theory of the case that was presented, and he hasn’t shown
that it was objectively unreasonable to proceed in [the way that trial counsel did], and we’d ask
that you dismiss the petition.” The court responded, “All right. I’m going to grant your motion to
dismiss.”
¶ 25 Postconviction counsel then filed a motion to reconsider the dismissal of defendant’s
petition, arguing that defendant’s initial petition was sufficient, and that trial counsel should have
argued self-defense in addition to reasonable doubt. Attached to the motion to reconsider was an
affidavit from postconviction counsel stating trial counsel should have argued self-defense.
There was also an affidavit from defendant’s trial counsel stating that he was an experienced,
licensed attorney since 1955, and that he “dispute[d] the reasons given by [postconviction
counsel], as I believed that defense [of self-defense] was unnecessary in view of the defense I
presented.” Finally, there was an affidavit signed by defendant’s mother.
¶ 26 At the hearing on the motion to reconsider the trial court stated:
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No. 1-17-2452
“The real question is whether or not I have to grant a hearing to determine
whether or not – even though there’s an affidavit here from [trial counsel] that
indicates that he felt that the defense that he presented, a defense of the State’s
inability to prove the defendant guilty beyond a reasonable doubt, was the valid
defense, was a defense that he chose by strategy, that he did so in conversation
with the defendant, whether or not it requires a hearing for him to actually say
what his affidavit says.
And that’s pretty much what this issue comes down to.”
¶ 27 After hearing argument from the parties, the circuit court denied petitioner’s motion to
reconsider. This appeal follows.
¶ 28 II. ANALYSIS
¶ 29 On appeal, defendant contends that he was denied reasonable assistance of postconviction
counsel for two reasons: 1) postconviction counsel failed to allege that appellate counsel was
ineffective for failing to allege that trial counsel should have argued self-defense, and 2) the
postconviction petition did not contain a valid section 122-2 affidavit from defendant. The State
responds that postconviction counsel provided reasonable assistance of counsel where the circuit
court dismissed the petition on its merits, and where postconviction counsel was not required to
include an affidavit from defendant. We agree with the State.
¶ 30 A petition filed pursuant to the Act is a collateral attack upon a prior conviction and
sentence, not a substitute or an addendum to a direct appeal. People v. Simpson, 204 Ill. 2d 536,
551 (2001). “The purpose of the post-conviction proceeding is to permit inquiry into
constitutional issues involved in the original conviction that had not already been adjudicated or
could have been.” People v. Blair, 215 Ill. 2d 427, 447 (2005). Res judicata bars claims that were
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No. 1-17-2452
raised and decided and principles of waiver and forfeiture preclude claims that could have been
raised on direct appeal, but were not. Id. at 443-47. However, the doctrines of res judicata and
forfeiture are relaxed where: 1) fundamental fairness so requires; 2) the forfeiture stems from the
ineffective assistance of appellate counsel; or 3) the facts relating to the issue do not appear on
the face of the original appellate record. People v. English, 2013 IL 112890, ¶ 22.
¶ 31 In a noncapital case, a postconviction proceeding typically contains three distinct stages.
People v. Edwards, 197 Ill. 2d 239, 244 (2001). At the first stage, the circuit court must
independently review a petition within 90 days and dismiss it if the petition is frivolous or
patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the petition is not
summarily dismissed, it is advanced to the second stage, where counsel is appointed and the
State may respond. Edwards, 197 Ill. 2d at 245-46. If the defendant makes a substantial showing
of a constitutional violation at the second stage, the petition is advanced to the third stage for an
evidentiary hearing. People v. Gaultney, 174 Ill. 2d 410, 418-19 (1996). In this case, the circuit
court made no finding regarding the first stage of review, but the State filed a motion to dismiss
the petition. When the State files a motion to dismiss a postconviction petition, the trial court
must decide whether to grant it or advance the petition to a third-stage proceedings at an
evidentiary hearing. People v. Dupree, 2018 IL 122307, ¶ 28. A postconviction petitioner is
entitled to an evidentiary hearing only when the allegations in the petition supported by
affidavits, records, or other evidence make a substantial showing of a deprivation of rights under
either the United States or Illinois Constitutions or both. Id. We review the trial court’s dismissal
of a postconviction petition at the second stage de novo. People v. Pendleton, 223 Ill. 2d 458,
473 (2006).
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No. 1-17-2452
¶ 32 As our supreme court has noted, “it is settled that there is no constitutional right to
assistance of counsel during postconviction proceedings.” People v. Cotto, 2016 IL 119006, ¶
29. “The right to assistance of counsel in postconviction proceedings is a matter of legislative
grace, and a defendant is guaranteed only the level of assistance provided by the *** Act.”
People v. Hardin, 217 Ill. 2d 289, 299 (2005). Our supreme court has concluded that the Act
provides a postconviction petitioner with “reasonable” assistance. Id. The reasonable level of
assistance provided for by the Act is “less than that afforded by the federal or state
constitutions.” Pendleton, 223 Ill. 2d at 472.
¶ 33 Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), “imposes specific duties on
postconviction counsel to ensure that counsel provides that reasonable level of assistance.”
People v. Kirk, 2012 IL App (1st) 101606, ¶ 18. “The rule requires that postconviction counsel
consult with the defendant to ascertain his contentions of the deprivation of constitutional rights,
examine the record of the proceedings at trial, and make any amendments to the defendant’s pro
se petition that are necessary for an adequate presentation of his contentions.” Id.¶ 34 “Compliance with Rule 651(c) may be shown by the filing of a certificate representing
that counsel has fulfilled her duties.” Id. ¶ 19. “The filing of the certificate gives rise to the
presumption that the defendant received the required representation during second-stage
proceedings [citations]; however, this presumption may be rebutted by the record [citation].” Id.
“It is defendant’s burden to overcome this presumption by demonstrating his attorney’s failure to
substantially comply with the duties mandated by Rule 651(c).” People v. Profit, 2012 IL App
(1st) 101307, ¶ 19.
¶ 35 Here, defendant’s retained postconviction counsel drafted a petition with several detailed
claims of ineffective assistance of trial counsel, including that “the evidence adduced at trial
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No. 1-17-2452
demonstrates that evidence of self-defense was clearly and overwhelming shown by the facts
then presented; nonetheless his counsel did not raise that defense.” Postconviction counsel also
pointed to the “newly discovered evidence unavailable at the time of trial,” of Juarez’s arrest in
January 2016 for murder to corroborate his claim of justifiable self-defense
¶ 36 Defendant contends, however, that postconviction counsel was unreasonable for failing to
allege ineffective assistance of appellate counsel based on appellate counsel’s failure to allege
ineffective assistance of trial counsel for not raising self-defense. Defendant maintains that
postconviction counsel should have alleged appellate counsel’s ineffectiveness in the
postconviction petition because without such allegation, defendant’s claim regarding his trial
counsel’s failure to raise self-defense was subject to forfeiture for failure to raise it on direct
appeal. See People v. English, 2013 IL 112890, ¶ 22 (the doctrines of res judicata and forfeiture
are relaxed where: 1) fundamental fairness so requires; 2) the forfeiture stems from the
ineffective assistance of appellate counsel; or 3) the facts relating to the issue do not appear on
the face of the original appellate record).
¶ 37 Defendant relies on People v. Schlosser, 2012 IL App (1st) 092523, in support of his
position. In Schlosser, the defendant filed a pro se postconviction petition in which he alleged
that he had not been proven guilty beyond a reasonable doubt and that his sentence was unfair.
Id. ¶ 2. The circuit court advanced the petition to the second stage and appointed counsel. Id.
Appointed counsel did not amend the petition to include a claim of ineffective assistance of
appellate counsel. Id. Finding that the defendant’s claims were forfeited for failing to raise them
on direct appeal, the circuit court dismissed the petition. Id. The appellate court held that
postconviction counsel’s failure to allege ineffective assistance of appellate counsel, which
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No. 1-17-2452
would have “overcome the procedural bar of waiver,” constituted unreasonable assistance of
postconviction counsel. Id. ¶ 26.
¶ 38 Defendant argues, based on Schlosser, that “the necessity of alleging ineffectiveness of
appellate counsel should have been obvious to postconviction counsel,” and that postconviction
counsel acknowledged that the claim of self-defense was of-record, and “therefore subject to
forfeiture absent an allegation of ineffectiveness of appellate counsel.”
¶ 39 We note that we cannot find any indication from the record that the trial court found
defendant’s claim of trial counsel’s ineffectiveness to be forfeited for a failure to be argued on
direct appeal. Rather, the trial court discussed the merits of defendant’s ineffective assistance of
trial counsel claim, and ultimately rejected it. The parties argued at length regarding whether it
was ineffective assistance of appellate counsel to fail to raise ineffective assistance of trial
counsel. The trial court stated in part:
“[W]hat we’re talking about here is whether or not trial counsel would have – by
way of questioning those witnesses – acquiesce[d] that it was [defendant] that was
the shooter ***.”
So when we talk about admitting that he’s the shooter, it’s not a matter of
putting the defendant on and having him say: Yeah, I did it, but I did in self-
defense. It’s – I’m assuming that you’re arguing it’s the way the witnesses were
questioned.”
¶ 40 The State then argued that defendant “at this time, would prefer that his counsel had gone
with self-defense. That was not the theory of the case that was presented, and he hasn’t shown
that it was objectively unreasonable to proceed in [the way that trial counsel did], and we’d ask
13
No. 1-17-2452
that you dismiss the petition.” The court stated, “All right. I’m going to grant your motion to
dismiss.”
¶ 41 At the hearing on the motion to reconsider the trial court stated:
“The real question is whether or not I have to grant a hearing to determine
whether or not – even though there’s an affidavit here from [trial counsel] that
indicates that he felt that the defense that he presented, a defense of the State’s
inability to prove the defendant guilty beyond a reasonable doubt, was the valid
defense, was a defense that he chose by strategy, that he did so in conversation
with the defendant, whether or not it requires a hearing for him to actually say
what his affidavit says.
And that’s pretty much what this issue comes down to.”
¶ 42 It is clear that the trial court was addressing the merits of defendant’s ineffective
assistance of trial counsel claim, and therefore postconviction counsel successfully overcame
forfeiture.
¶ 43 Even if the trial court had found that the issue of trial counsel’s ineffectiveness was
forfeited because of appellate counsel’s failure to raise it on appeal, we nevertheless would find
that postconviction counsel was not unreasonable for failing to allege appellate counsel’s failure
to raise the issue on appeal where the underlying issue was meritless.
¶ 44 Claims of ineffective assistance of appellate counsel are evaluated under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984); People v. Coleman, 168 Ill. 2d 509, 523
(1995). Under Strickland, the defendant must prove 1) that his counsel made errors so serious
and his performance was so deficient, that he was not functioning as the “counsel” guaranteed
the defendant by the sixth amendment to the Unites States Constitution, and 2) that these
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No. 1-17-2452
deficiencies so prejudiced the defendant as to deprive him of a fair trial, a trial whose result is
reliable. Id.¶ 45 To demonstrate deficiency, a defendant must establish that counsel’s performance fell
below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001).
Prejudice is demonstrated if there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. Because a defendant’s
failure to satisfy either part of the Strickland test will defeat a claim of ineffective assistance, a
court is not required to address both components if the defendant makes an insufficient showing
on one. Strickland, 466. U.S. at 668. We note that appellate counsel “has no obligation to raise
every conceivable argument which might be made, and counsel’s assessment of what to raise and
argue will not be questioned unless it can be said that his judgment in this regard was patently
erroneous.” People v. Collins, 153 Ill. 2d 130, 140 (1992). “[U]nless the underlying issues are
meritorious, defendant obviously suffered no prejudice due to appellate counsel’s failure to raise
them on direct appeal.” Coleman, 168 Ill. 2d at 523.
¶ 46 The defense theory to be presented to the trier of fact is not one of the matters that a
defendant has the ultimate right to decide. People v. Ramey, 152 Ill. 2d 41, 53 (1992). “Rather, it
is a matter of trial tactics or strategy which is ultimately left for trial counsel.” Id.; see also
People v. Gallardo, 112 Ill. App. 3d 764, 770 (1983) (holding that decision to rely upon one
theory of defense to the exclusion of all others is generally a matter of trial tactics or strategy).
Our supreme court noted that it will generally not review a claim of ineffectiveness of counsel
based on an inadequate trial strategy. People v. Guest, 166 Ill. 2d 381, 394 (1995). Our supreme
court, however, has recognized an exception where counsel entirely fails to conduct any
meaningful adversarial testing. Id.15
No. 1-17-2452
¶ 47 In this case, trial counsel presented a theory of innocence that required the State to prove
its case beyond a reasonable doubt. At the close of the State’s evidence, trial counsel asked for a
directed finding, stating that the State’s witnesses all failed to make in-court identification of
defendant as the shooter, and that there were no incriminating statements by defendant or any
other evidence connecting defendant to the crime. When the motion was denied, defense counsel
called another alleged victim, Michalak, as a witness for defendant, who testified that he saw the
person who fired the shots and that person was not defendant. Although counsel’s motions and
defense theory were unsuccessful, counsel subjected the State’s case to meaningful adversarial
testing, and thus there was no ineffective assistance of trial counsel.
¶ 48 Accordingly, because the underlying claim of ineffective assistance of trial counsel is
meritless, it follows that defendant was not prejudiced by appellate counsel’s failure to argue
trial counsel’s ineffectiveness. See Coleman, 168 Ill. 2d at 523. It also follows that defendant did
not receive unreasonable assistance of counsel by postconviction counsel’s failure to argue
ineffective assistance of appellate counsel based on the same meritless underlying issue.
¶ 49 Defendant’s second basis for his unreasonable assistance of postconviction counsel claim
is that counsel failed to properly attach an affidavit by defendant to the postconviction petition
pursuant to section 122-2 of the Act. 725 ILCS 5/122-2 (West 2016). Section 122-2 states:
“The petition shall identify the proceeding in which the petitioner was convicted,
give the date of the rendition of the final judgment complained of, and clearly set
forth the respects in which petitioner’s constitutional rights were violated. The
petition shall have attached thereto affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached.” Id.16
No. 1-17-2452
¶ 50 Our supreme court has noted that the section 122-2 requirements are meant to show “that
the verified allegations are capable of objective or independent corroboration.” People v. Collins,
202 Ill. 2d 59, 66-67 (2002).
¶ 51 Defendant contends, without any citation to authority, that “[c]ontrary to postconviction
counsel’s belief, when self-defense is at issue, an affidavit from someone other than defendant is
insufficient to satisfy the requirements of [section 122-2].” However, defendant’s claim in his
postconviction petition was a claim of ineffective assistance of counsel based on a failure to raise
self-defense. Defendant contended that the “evidence showing self-defense was uncontradicted,”
and that “the evidence in the record is sufficient to raise the issue.” Defendant further stated in
the petition that “the evidence adduced at trial demonstrates that evidence of self-defense was
clearly and overwhelming shown by the facts then presented; nonetheless his counsel did not
raise that defense.” Defendant supported his claim of ineffective assistance of trial counsel with
excerpts of the trial record that included certain witness testimony stating that they threw rocks at
defendant on the day in question, as well as the appellate court order.
¶ 52 His petition also alleged that the newly discovered evidence of Juarez’s murder charge
would “corroborate his justifiable threat of force to defend himself, and *** corroborate the
reasonableness of his belief that Juarez and his accompanying rock-throwers were dangerous.”
He attached a copy of Juarez’s inmate report from Cook County Department of Corrections in
support of that claim. Additionally, in his motion to reconsider, defendant attached affidavits of
his postconviction counsel, his trial counsel, and his mother. We find that these attachments meet
the requirements under section 122-2 of the Act as “affidavits, records, or other evidence,” and
showed that the allegations in defendant’s postconviction petition were capable of objective or
independent corroboration. 725 ILCS 5/122-2 (West 2016). An additional affidavit by defendant,
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No. 1-17-2452
beyond his verification affidavit stating that the allegations in the petition were true and accurate,
would not have been necessary to independently corroborate the allegations in the petition. See
People v. Teran, 375 Ill. App. 3d 1, 4 (2007) (“because no affidavit of defendant’s would have
provided objective or independent corroboration per section 122-2, defendant’s affidavit was not
necessary for that purpose either.”)
¶ 53 Accordingly, after careful review of the record, we find that defendant has failed to
overcome the presumption that postconviction counsel provided reasonable assistance of counsel
for failing to attach an evidentiary affidavit by defendant. See Profit, 2012 IL App (1st) 101307,
¶ 19 (it is defendant’s burden to overcome the presumption that defendant received reasonable
assistance of counsel by demonstrating his attorney’s failure to substantially comply with the
duties mandated by Rule 651(c)). Moreover, there is simply nothing in the record indicating that
the trial court dismissed defendant’s postconviction petition based on an absence of supporting
affidavits. Rather, the trial court addressed the merits of defendant’s petition before dismissing it.
¶ 54 III. CONCLUSION
¶ 55 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 56 Affirmed.
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