People v. Spivey, 2017 IL App (2d) 140941

In 2007 defendant Kavin Spivey was convicted after a bench trial of attempted first-degree murder, armed violence, armed robbery, and being an armed habitual criminal for an incident in which a woman’s wallet was stolen and shots were fired near a gas station/Toys “R” Us; codefendants Fleming and Hicks testified against him after plea deals.
Witnesses placed two Black males fleeing the scene; some identified a vehicle (black-and-gold Ford pickup) whose Wisconsin plate traced to Katrina Fleming; Fleming (defendant’s uncle) and Hicks testified they fled in that truck with Spivey, and Fleming described defendant discarding a wallet and a gun.
Police searched the truck and found directions and live ammunition; defendant was found hiding at a house and later convicted.
Defendant filed a pro se postconviction petition alleging ineffective assistance of trial counsel for (1) failing to investigate/ follow up on a posttrial phone call from Fleming recanting his testimony, and (2) failing to call Tyshea Saffold (who would allegedly say defendant was not present when Fleming and Hicks visited her).
The trial court appointed counsel and allowed a private investigator but the petition was dismissed at the second stage because defendant did not attach affidavits or other corroborating evidence as required by 725 ILCS 5/122-2.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to investigate Fleming’s alleged recantation	State: petition lacks supporting affidavits/records as required by section 122-2; dismissal appropriate	Spivey: trial counsel failed to follow up on Fleming’s postrelease call and thus did not pursue potentially exculpatory recantation	Court: Dismissed — petitioner failed to attach affidavit/evidence from Fleming; noncompliance with §122-2 supports second-stage dismissal
Whether counsel was ineffective for failing to call Saffold as a witness	State: no affidavit from Saffold or other corroboration; claim speculative	Spivey: Saffold would have testified defendant was not with Fleming and Hicks, which would undermine prosecution timeline	Court: Dismissed — absence of Saffold affidavit means claim cannot be evaluated and petition may be dismissed at second stage

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficiency and prejudice)
People v. Collins, 202 Ill. 2d 59 (distinguishing verification and evidentiary material requirement under §122-1 and §122-2)
People v. Enis, 194 Ill. 2d 361 (postconviction claim that counsel failed to investigate/call witness must be supported by affidavit from proposed witness)
People v. Hall, 217 Ill. 2d 324 (explanation for omission of affidavits may avoid dismissal if stated in petition)
People v. Franklin, 135 Ill. 2d 78 (strong presumption that counsel’s performance falls within wide range of reasonable professional assistance)