People v. Jones

13(D) it dоes find that claims. We applies plaintiffs’ to the subsection not. 13, by its section period limitations contained three-year

The upon or this Section or terms, “relief under only applies own by this Sec granted relief is matters for which because 2008). 5/13(D) (West Section,” statute is “this By tion.” 815 ILCS indicates, above As the discussion section 13 itself. referring only to (1) right of rescission a retroactive provides only for: section 13 (2) remedy of 13(A), prospective under subsection purchasers in interest” “any party Secretary the Illinois of State relief to (West (G) 13(G). 13(F) 5/13(A), (F), ILCS under subsections 2008). retroactive common law simply does not concern Section 13 sellers of fiduciary duty brought by damages claims for breach of such, As minority particular. shareholders general, securities in 13(D) in section does not period limitations contained three-year Enterprises Exelon this case. apply plaintiffs’ against to the claims III. CONCLUSION reasons, question certified in the foregoing For the we answer the proceed- negative. remand the cause to the circuit court for further We ings opinion. consistent with this answered; question

Certified cause remanded. GALLAGHER, JJ.,

O’BRIEN and concur. ILLINOIS, Plaintiff-Appellee, THE THE STATE OF PEOPLE OF JONES, Defendant-Appellant. ANTELETO (5th Division) District No. 1 — 07—1190 First Rehearing April denied 2010. Opinion filed March HOWSE, J., dissenting. Atwood, Appellate Emily R both of State Pelletier and

Michael J. Office, Chicago, appellant. for Defender’s (James Fitzgerald, Alvarez, Attorney, Chicago E. Alan M. State’s Anita counsel), Attorneys, of Simpson, Assistant State’s Spellberg,

J. and Sarah L. People. for the opinion TOOMIN delivered

PRESIDING JUSTICE court: court’s the circuit appeal,

In this we must determine whether postconviction se summary pro dismissal of defendant’s Hodges standard recently promulgated relief with the comported People Hodges, in fact. See lacking arguable basis law or Ill. 2d N.E.2d defendant, Jones, trial, Anteleto was convicted

Following jury murder, finding personally that he degree enhanced first the murder. He was during thе course of discharged a firearm appeal, On direct we years’ imprisonment. sentenced to a total of Jones, 1—03— People v. affirmed defendant’s conviction and sentence. 23). (2004) Rule Supreme Court (unpublished pursuant order the Post- for relief under Thereafter, pro defendant filed a se (West (725 (the Act) seq. et Hearing Act ILCS Conviction 5/122—1 and ineffective as- 2006)), claims of actual innocence part based on petition, summarily dismissed sistance of counsel. The trial court the reasons without merit. For finding patently it to be frivolous circuit court.1 follow, judgment affirm the of the we arguments initially in this case on October heard 1Oral Howse, Toomin, Tully, R. Jr. E John E and Nathaniel before Justices Michael filing opinion, of this Justice arguments In oral and the the interim between Fitzger Tully retired, thereby necessitating of Justice James the substitution Fitzgerald read the briefs Tully. Smith has replace ald Smith to Justice Justice argument. tape listened to the of the oral and record and has

I. BACKGROUND Defendant’s convictions stemmed gang-related from the shooting Jerry Green that occurred around 5 a.m. January on on Chicago’s South Side. The incident had genesis its in an ongoing gang war involving rival factions Gangster Disciples beginning in and continuing January factions, into 2000. The denominated the “Third Limits,” Ward” and “No bordered each territory. other’s The groups satellite separated had from Disciples in 1996 after the leader, indictment of their Larry Hoover, and other members. Defendant was a member of faction, the Third Ward as were his codefendants, Melvin Jones and Ashby. Travis Lawrence Green was the chief of the No Limits. shooting The occurred in adjacent the street to Lawrence Green’s Green, residence at 7159 South Seeley. Jerry victim, Lawrence, was related to but was not affiliated with either gang faction. There eyewitnesses were no to the occurrence. аrrest,

Following his provided defendant a videotaped confession admitting participation his in the offense. Defendant subsequently suppress statements, moved to asserting his that he had been inter- rogated after electing to remain silent invoking right counsel. Additionally, coercion; physical claimed that he had “pushed, been punched” by shoved and the polygraph examiner at 11th and State as other hearing, officers watched. At the Officer Bartik, examiner, Robert the polygraph denied allegations, did three detectives from Area One Violent Although Crimes. verified, motion was defendant did not testify nor did he call wit- turn, nesses. In the motion was denied. January proceeded defendant and Travis Ashby to trial

simultaneously juries. before separate The “double jury” procedure implemented interlocking videotaped because of confessions wherein the inculpated defendants each other as well as themselves. Jones, who had likewise inculpated his co-offenders in his videotaped statement, separately was tried immediately following sentencing. defendant’s conviction and

As first-stage requires the mandate of review that we determine allegations whether the postconviction of defendant’s are rebutted record, the trial we must consider the evidence adduced at trial. In the proceedings below, Jerry the trial evidence disclosed that Green ar- Only Lounge rived at the Members at 71st and Halsted between 11:30 p.m. and 12 a.m. evening shooting. on the before the He visited with friend, Moore, club, his managed helped Curtis who and him clean up closing. They premises restock the bar after left the around 3 gray and, a.m. in Green’s stop, Chevrolet after brief drove to Moore’s Seeley. parked home at 7159 South Green his car on the south side of Jerry was Moore testified Damen. Street, facing east toward 72nd fiancée, Green, who Yolanda related to his Baby” and was called “Old Seeley residence. at the family her and Moore lived with door. through the back kitchen entered the and Moore Green Moore something to eat as refrigerator to look to the Green went on the Moore was evening. While earlier that page returned a from out the gas or and went money for food some phone, Green borrowed gunshots. he heard 5 to phone, on the As Moore remained door. window, next to his right seemed like were gunshots of the Some dropped phone Moore did not sound as loud. while others gone outside. Baby just had telling her that Old his fiancée woke from his next door only the side of the house Moore could see Because through one of and looked bedroom, to the back of the house he went open, car door was Although he could see that Green’s the windows. outside, he found Green then where not see Green. He went could feet his car. The victim’s in the street the door of lying on his side car, head to the rear. Moore the front of the his pointed toward shot Green, He did not see who response. received no called to but people As Green, running from the scene. anyone nor did he see remained near the car someone to call 911 and gathered, Moore asked initially was taken and ambulance arrived. Green police until the County medical examiner’s Hospital eventually to the Cook Christ office. Damen, testified that Deal, nearby at 7200 South

Odis who lived He first heard two to three gunfire at about 5 a.m. he heard They nine more. all followed by volley eight gunshots, followed 1970 to Army had in the from right after the other. Deal been one gunshots The first two or three gunfire and had heard before. rest, coming from two like the shots were sounded different from the firing minutes aftеr the guns. About five to six or three different home, located his which was outside to the back of stopped, Deal went police He saw Street and Damen. on the southwest corner 72nd inside. an ambulance and then went back cars and Seeley resided at 7159 South testified that he Lawrence Green Moore, members, who was including Curtis along family other Green, is the aunt, Green, Cora who Yolanda engaged to his visit his nephew and would Jerry his son. Green was Cora’s mother of January Law- early morning hours of monthly. aunt In the then went outside screaming in the house. He rence awakened car, parked on 72nd which was Jerry lying down beside and saw Damen. facing Street east toward the No the leader of acknowledged that he was

Lawrence Green nickname is gang. street His Gangster Disciples Limits faction explained “Motor.” Green that the No Limits and Third Ward factions of the Disciples get along, used to began having but problems in the summer of 1998. Initially, the problems fighting involved between girls who were related to members of both factions which later led to fighting between the members. After the altercations escalated to shootings, gang Green and fellow members putting discussed out “hits” on members of the Third Ward faction. Joseph

Detective Struck assigned was to the shooting January on 8, 2000, at about 5:30 a.m. partner, When Struck and his Detective di, Girar arrived at the location already beat officers had secured the crime scene. Struck gray observed a two-door parked Chevrolet on the south side of 72nd facing Street east toward Damen. There were casings numerous shell on both sides of the vehicle and two small spots of blood on the driver’s side near A the rear tire. set of keys lay nearby. Struck also noted two bullet holes in the overhead door of a garage that faced 72nd Street. garage The was in the front of the victim’s car. investigators

Forensic James Shader and Carl Brasic arrived at the crime scene around 6 a.m. speaking detectives, After with the photographed the entire scene surrounding area. investiga- The tors also recovered six PMC .380 cartridge casings, predomi- auto all nately alongside the street immediately in front of the vehicle. Two of casings the .380 were near the driver’s side door toward the rear of the casing car. Another was to the rear of the car and three ad- casings ditional were recovered from the street. A fired bullet was also adjacent observed to the keys. driver’s door next to the set of Ad- ditionally, they Luger recovered two FC 9-millimeter cartridge casings passenger on the side of the car at the curb area near the front of the investigators victim’s vehicle. The also examined the overhead door of garage car. front Shader testified that the bullet ap- holes peared to be new as there was no corrosion or wear and tear in the holes paint chips themselves and the dislodged appeared Although fresh. the investigators gained access to the interior of the garage, they any spent were unable to locate fragments rounds or due to the accumulation of debris.

Chief Medical Examiner Donoghue performed postmor- Edmund Jerry tem examination January Donoghue Green on 2000. Dr. gunshot found evidence of five wounds and additional abrasions or scrapes. The first injury gunshot entry evidence of was a wound to the right involving victim’s shoulder the heart A cavity. and abdominal medium-caliber, copper-jacketed bullet was recovered from the muscle entry beneath the skin. There was also an wound to the victim’s left upper injury shoulder which exited the victim’s left back. The third involved the entry to the lower chest which was wound victim’s the left an exit from the musculature of abdomen and with wound medium-caliber, bullet was recovered copper-jacketed back. A second There another the victim’s lower back. from beneath skin of hand an exit wound entry palm right of the victim’s wound to noted on the back entry to the back of the hand. The fifth wound was the front of his left left hand with an exit wound on victim’s forearm. be Donoghue opined gunshot

Dr. that the last two wounds would puts his hands injuries, termed defensive which occur when victim up stop in an Defensive wounds happening. effort what is characteristically through-and-through injuries are indicated is, close-range firing; observed. None of the wounds involved fir- ing entry from 18 inches or less from the surface of the Dr. wounds. Donoghue degree certainty concluded within a reasonable of medical Jerry multiple gunshot died of and the man- Green wounds ner of death was homicide. examined Amberger

Forensic scientist Richard received investigators firearms evidence recovered and the medical examiner. He degree concluded within a reasonable of scientific certainty that the six cartridge casings PMC .380 were all chambered weapon. in the same He was unable to determine whether the shell casings fired actually weapon were from the same because the breech face marks necessary lacked individual characteristics to make an However, identification. Amberger was able to determine that the two Luger FC 9-millimeter casings were indeed fired from the same weapon. Amberger also testified that the bullets recovered from crime scene and the autopsy had the class characteristics of a .380/9- grooves right They millimeter bullet with six lands and and a twist. could gun. be fired from either a .380 In comparing or a 9-millimeter bullets, Amberger these determined that all three were fired from the used, Finally, assuming weapon same firearm. that a .357-caliber was Amberger expect casings testified that he would not to find shell as revolvers, handguns normally automatically .357 are do not which eject spent casings. their assigned follow-up investiga-

Detective Robert Lenihan was to the In morning January speaking tion of the murder on the 2000. Girardi, with had Detectives Struck he learned that victim Seeley immediately prior come out of the residence at 7159 South shooting. the fatal Lenihan and other detectives then relocated to that spoke regarding address and the murder as well with Lawrence Green days unrelated matter that occurred two earlier. The detectives Lawrence, photographs they later returned to show after which began looking person for a named Melvin attempts Jones. When locate Melvin unavailing, put Lenihan a stop out order directing that Jones be brought in when he was located.

On February 2000, Detective Lenihan learned that Melvin Jones had been taken custody into previous day. After Lenihan and other detectives Melvin, conducted interviews of began looking for defendant and Ashby Travis Jerry connection with Green’s murder. Stop orders were issued for both individuals. Greg

Officer Sloyan of the Area One mission team had assisted in locating people detectives on various cases. He apprised became stop order on defendant and had photograph. seen his On March 3, 2000, Sloyan and partner defendant, located placed him into custody and advised him of his rights. Miranda initially Defendant was taken to the 7th District and then to Area One for process- further ing. Ashby Travis was August not arrested until 3, 2000,

On March Detective Timothy Nolan was notified that brought defendant had been to Area One stop on the order. met He p.m. defendant at 9:15 and advised him rights. of his Miranda Defendant acknowledged he rights understood his agreed to talk to the response detective. to Detective questioning, Nolan’s defendant denied participating the murder and stated that there was person just another “that lying was on him.” The conversation brief, “maybe most,” ten to fifteen minutes and Nolan then left the room. He was investigation not involved the initial and decided to wait for the midnight officers who had handled the scene to return investigation to them.

Detective responded original Michael Rose to the crime scene and was familiar progress with the investigation. He arrived Area One at a.m. 12:30 on March was briefed Detective Nolan before resuming his involvement in the Initially, case. Detective Rose observed through glass defendant in window the door of the interview room appeared sleeping. where defendant to be Rose looked in on again defendant several that morning. times Around 5 a.m. he found him sitting up. to be awake and The then detective entered the room, and following warnings, his Miranda agreed defendant to speak.

Initially, acknowledged defendant his Third affiliation with the Gangster Disciples, Ward branch of the led by which was Leonard Klein, ongoing also known as “Devo.” Defendant also described the conflict between the Third and the Ward No Limits faction. He told Green, Detective Rose that in December Lawrence whom he Motor, knew as had fired a .45-caliber semiautomatic at him six or seven times near and Winchester. Defendant 73rd also related that Devo garage in Devo’s wherein meeting he a January attended Limits $5,000 bounty any to No a that Motor had offered stated defendant, to Disciple. According killed a Third Ward member who for killed, Devo was arrested days Jerry Green was or three before two shooting at Motor. him that about defendant told Rose further testified that

Detective him informed meeting garage, in Devo’s Melvin Jones after the week that night related Baby the before. Defendant that he had shot Old from in a across the street gangway he hidden Melvin stated had waiting to catch a .380 house armed with semiautomatic Motor’s Baby exited told him that when Old coming going. Melvin Motor him up car ran to parked and walked to a he the rear of Motor’s house (exple- up, bitch mother said, bitch” or up and “What’s now “What’s tive).” mouth,” Melvin got off after which Baby “flipping Old at the defendant seven Melvin then told reportedly shot him six or times. night. he ran to a house where he hid out rest of that friend’s problems further that also told him of the Rose testified defendant he not like him. The really had with Melvin Jones and that did account did make sense detective then informed defendant that his not him, if did not like he tell him all about why because Melvin would murder he committed. Detective Rose also observed that defendant many specific happened related too details about what from a conversa- supposedly happened explained tion that months He almost two earlier. ‍‌‌‌​‌​​​​​​‌‌‌​‌​​‌​‌‌‌‌​​​​‌​‌‌‌​​‌‌​‌‌​​​​​‌‌‌‍it defendant that sounded like there. denied defendant was Defendant present purport- was continued his account of what Melvin made, edly Although inquiry had told him. unable to was defendant was through his January January account for whereabouts from passed because two months had that time. since Farley duty approximately Detectives Lenihan came on a.m. on March Detective reviewed the notes of Rose ending officers before his shift. interview defendant and, being advised The detectives then met with the defendant after agreed rights, speak. Although of his defendant once more again shooting that participation denied reiterated alone, they had told him had Melvin Jones acted detectives just one Lenihan evidence more than individual involved. to Area Farley then left the interview When returned room. time, shortly noon, defendant, implicated after the first One detectives shooting.2 himself in the At the end the conversation the Attorney’s felony called the unit of the State’s office. review 2Although part evidence, hearing the trial at the on defendant’s agreed to suppress Lenihan testified that defendant motion statements Attorney Assistant State’s Beth responded Pfeiffer to the call and upon arrival she met with the detectives to the review course of the investigation. Ms. Pfeiffer met p.m., with the defendant at 2:15 which time she introduced as an Attorney, herself assistant State’s a prosecutor, rights. agreed and advised defendant of his Defendant to speak 45-minute they and had a to during 30- conversation the course of which defendant admitted and participation described his the shooting. agreed Defendant also to make a videotaped statement and executed an appropriate Photographs consent. of the individuals had defendant mentioned were also in preparation obtained for the taping.

The videotaping, played jury, began which was for the p.m. at 6:17 on March and for statement, ran 18 minutes. In his defendant provided initially background regarding “G.D.’s,” information the which purportedly Development,” stood for and “Growth and the rival factions. He identified the leader and of No members the Limits factions, as well as including the Third Ward Ashby, Travis whom he described as “Stank.” early part

Defendant confirmed that at the end of and the of 2000, problems a of of developed after sister one Limits No turn, began members stabbed Devo’s sister. In a confrontation forth, fighting members the factions and eventually leading back to shootings between the sides. Defendant also two described the meet- ing at Devo’s gang where and fellow members informed were $5,000 “had put later, No Limits on our heads.” days Several Street, member, he wаlked 73rd down Motor and another No Limits Terrell, pulled in a and up car shot defendant several times. defendant,

According catalyst Baby’s for Old demise oc- evening curred on the January walking 2000. While within the boundaries, Jones, Third Ward defendant was met who crying jumped after No Limits members had on him in front his girlfriend. They upset joined by Melvin was and embarrassed. were agreed Stank and the had something three to be done. Stank left handguns. his car returned about 45 minutes later with two He gave kept 9-millimeter defendant a black .357 either .45 or for produced a himself. Melvin Jones then .380 semiautomatic “out of the guns blue.” “putting up” alley After between Damen and Seeley, bought alley the three beer and returned to the to drink it. police undergo polygraph 11th and examination and was taken State examiner, facility. pretest During polygraph with the interview repeated amplified upon made admissions which he return Area One. walked and a half down the a block

They guns then retrieved defendant, looking According to alley Street. to 72nd Instead, Old appeared. if he shot him would have probably Motor and house, opened his car and walked to Baby of Motor’s came out said Baby Melvin Old and point they approached door. At that now, Baby ***.” Old like, up bitch mother something him “What’s to do nothing have to with saying his “No. I didn’t waving hands started fired six seven shots at began unloading gun and or it.” Melvin shots. Stank, right, fired to three Baby. Old who was on Melvin’s two fired to the and two about 8 to 10 feet left Defendant was behind falling. Baby at Old as he was shots alley ran down the defendant and Stank back shooting,

After the into and defendant returned the got toward Street. Stank his car 73rd Street, to 74th gun him. Stank off alone and defendant ran to drove that him Defendant stated he he found a friend who took home. where When couple of later at Devo’s house. days saw Melvin and Stank a told him handled the happened, what had “wе Devo asked business.” case, an presented

At the conclusion of the State’s the defendant mother, Jones, alibi Audie testified that Janu- defense. Defendant’s ary 2000, her husband siblings defendant lived with and her and two 7, 2000, Chicago. January at South On she came home Racine p.m. to 12:30 a.m. Mrs. around 11:30 and went bed at When Jones 8, 2000, morning January awoke on the at 6 a.m. all of her children of present getting up, were in the After she went to the kitchen house. anyone see in his bed. did not if had could defendant She know a.m., left she sleeping the house between 12:30 a.m. and 6 as had been testify present any did nor he during that time. The defendant did additional witnesses. closing by instructed the court and arguments, jury

After was noted, subsequently jury retired to deliberate. As found Green, guilty degree finding first murder of enhanced a Jerry discharged during that of the personally firearm commission offense.

Thereafter, alia, posttrial inter alleging, defendant filed a motion newly consisting signed from discovered evidence statements two individuals who claimed to be defendant at the time alleged prosecutors mandated a trial. offense new Defendant withholding discovery exculpatory committed a violation state- statements, by Anthony Darryl ments made Thomas and Thomas. The March attached to the motion. which were both dated “affidavit,” statement, Darryl In his unsworn an denominated Thomas averred:

“I hereby do party my state as follows: I had a basement and Melvin and my girl having [sic] Antleo and me and friend was party my party [sic] cousien and the over at am was 1:00 my grandfather put because had body ever I [sic] [sic] out but snuk [sic] Antleo back in like So I sleep at 1:30 am. did and we went to up and woke at 11:00 walked to the on way store. So our back a car pulled up and shot at us went so we downMeliven garage [sic] and he said [sic] that he went over their last night put in some Margert [sic] work. I told Woodabout this. Betweеn Feb. or 26. Darryl [/s/] Thomas”

Anthony Thomas likewise asserted: Anthony

“I hereby Thomas do state follows: night my [sic] Anteledo was our shooting, house grandfather put out him at about 12:00 a.m. I himlet back in the [sic] back door an continued drink party [sic] we until about sleep my [sic] 2:00 a.m. The we went to grandfather put him out about morning. 6:00 a.m. 7:00 a.m. the next I talked attorney times, the state’s about 3 first time she told me that going [sic] [sic] Anteledo probably trial an would need testify. me to Anthony

[/s/] Thomas 03/17/03 The first time I to I attorney talked the State’s told them that going testify [sic] Anteledo wasn’t there so I’m not saying that he was. Anthony

[/s/] Thomas” 23, 2003, On hearing March at the new on defendant’s motion for trial, Attorney Margaret State’s Assistant Wood testified that she first spoke Darryl on February with Thomas well after defendant’s trial had concluded. had her Darryl County jail called from Nicollete receiving after papers Minnesota material witness served in connec- tion with of upcoming During the trial codefendant Melvin Jones. this conversation, him Darryl petitioner told her that was with at the time of the murder. Anthony

Ms. further had spoken Wood testified that she with trial, prior during Thomas the week the start but of defendant’s that they spoken generally gang conversation had about the wars Ward, specifically between No the Third did not the Limits and but testify talk Anthony about the defendant. She never asked Thomas to testify. Darryl prior and he told her to trial he would not After never jail, Thomas had her the Ms. Woodhad another called from Minnesota It either place her office. took March Anthony conversation event, 11; after trial. or March 10 or in either On that occasion, Anthony that the first time told Ms. Wood defendant for drinking was with and time of the murder. After Darryl him at the brothers, Ms. Wood from the Thomas receiving the information defendant, Ashby. as for as well Travis contacted counsel the questions of Assistant any did not attorneys Defendant’s ask Although the state- Attorney hearing. at the handwritten State’s Wood motion for attached to the Anthony Darryl Thomas were ments of hearing. trial, testify at the new neither was called to individual motion, the court noted that state- considering In trial specified the affidavits and neither statement ments were not sworn testimony The found of party. of the court also date or location and refuted defense Attorney Assistant State’s Wood was credible evidence. knowledge exculpatory that the had of allegations State newly rejected The the claim that the statements constituted at the time trial as both evidence that was not available of discovered the court police reports. Additionally, were in the individuals listed not of a conclusive provided noted that the disclosures such jury’s sentencing, verdict. At nature that would have affected the years’ imprison- term of 24 circuit court sentenced defendant to a degree 20-year ment for first murder with a enhancement based on finding dur- jury’s personally discharged that defendant a firearm ing the commission the murder.

In the direct taken appeal judgment from defendant’s convic 20-year tion the sole issue raised was whether the firearm enhance upheld ment On August was constitutional. we constitutionality provision of the conviction affirmed defendant’s sentencing. turn, appeal, In defendant filed a for leave to Illinois Supreme which the Court denied on December Jones, 2d 580, N.E.2d Thereafter, post- proceeding the instant commenced (1) pro petition, conviction relief. se defendant maintained actually upon newly discovered innocent of offense based Jones, consisting evidence affidavits from codefendant (2) witnesses; rights well as other he was denied his constitutional consisting failure exculpatory State’s to disclose evidence Darryl prior given by Anthony written statements Thomas trial, by perjured testimоny prosecutor hearing offered at the trial, on a the date by forgery his motion for new and the State’s of on (3) Thomas; Darryl the Anthony written statements of and trial failing present and other wit- counsel was ineffective for to locate Deal, failing present to and nesses to contradict Odis and locate Thomas, Thomas, alibi wit- Anthony Darryl and other individuals as nesses, object and to from Melvin failing for his de severance facto (4) Jones; appellate for to raise those is- failing counsel was ineffective (5) by appeal; sues on direct and the trial court abused its discretion allowing Melvin Jones to be tried separately when neither the State nor defendant had moved for a severance.

In support innocence, of his claim of actual defendant attached the Jones, affidavit stating of Melvin as follows: Jones, solely “I responsible am the Jerry for murder of early morning Green which occured in the [sic] hours of Jan. my Upon during Feb. arrest on the course of the I investigation falsely being my accused Anteleto Jones as ac- complice shooting. in this custody

I state they further that while in the told authorities me only had an idea that I was not individual involved in this shooting giving on-going reason due to the recent conflict between gangster disciple nation; these two different factions of the No- Ward’s, the Third Limit’s and which I’m with the Third associated proposed leinency stating Ward’s. Also the officers [sic] deal of charge that I receive would a lesser after contacted the state’s I attorney, give if were to one or people them information on more shooting. relation this Truthfully, I only responsible shooting was the individual for this but I opportunity my seen this as an to better circumstances. Thenceforth, I falsified information via video-confession in the presence attorney of officer and stating assistant state’s me, 357mg accompanied handgun [sic] ‘Anteleto Jones fired a at the crime scene on Jan. 2000.’ depose

I and further state when I received access to a telephone organization my I contacted other members of to inform my immediately them of situation and to locate Anteleto before the police picked up being him him to make aware that he has to admit present discharging mg handgun [sic] a 357 the crime scene early morning of causing hours Jan. death Green; Jerry if he to adhere to refuses those instructions then member, superior violating pledge would be of honor to he or as a result a close relative would be killed. I accompanied further state that I Anteleto Jones the time of murder on 2000 and he was nowhere in Jan. my change vicinity. lifestyle Due to current and abandonment my ways, longer I former could no live with fact that an in- something responsible person nocent is incarcerated I’m for. foregoing except I is true affirm that statements made belief, upon and as to all true information those are facts. Melvin Jones” /s/ claim, support

To his ineffective defendant also included assistance Anthony Darryl written statements of Thomas and Thomas that trial. previously were attached to his motion for new No other af- provided. fidavits were petition, summarily postconviction dismissed the

The circuit court regards merit. As finding patently it without to be frivolous claim, that Melvin innocence the court first noted defendant’s actual testify if have Jones’ failed to state that called to Jones would affidavit testimony The court accordingly provide testified or would such now. newly did discovered also determined that the recitals not constitute prior evidence because the information available to defendant’s was Moreover, trial. found that the affidavit not of such a the court was judge The conclusive character as to lead to a different result at trial. and Travis videotaped reasoned that statements of Melvin Jones Ashby wholly were consistent with each other and with defendant’s videotaped Jones’ statement Additionally, statement well. outlined his own involvement and identified defendant as his ac- complice. rejected concluding The court the claim the defendant’s videotaped him and overwhelming against statement was evidence significant body there was a all corroborating of other evidence provided details in the statements of all three defendants. issues,

Regarding remaining rejected the court the claim of trial failing ineffective assistance of counsel for to locate and call wit- nesses, finding that provide defendant’s failure to affidavits or state- Green, Green, ments from Michelle Cora Faustina Ben Thomas and Bennett precluded consideration of Anthony those claims. As to Thomas, Darryl judge the trial had previously reasoned as he done during rejection trial, of defendant’s motion for a new that neither statement was sworn or specific notarized and both lacked facts as to the date or location of the support occurrence to the alibi claim. The Anthony court also found the statements failed indicate that either Darryl Thomas not contacted by was or interviewed defense counsel. The court further noted that both individuals were listed in the State’s discovery answer to and their earlier written statements had been open tendered to the defense in court. The thus concluded there fully was no reason to conclude that defense counsel strategic aware of the witnesses or that counsel’s reasons not call- ing the witnesses was the least bit unsound. severance, Addressing object counsel’s failure to to the de factо separate constitutionally

court reasoned that trials mandated were because all videotaped three defendants made confessions which were against inadmissible each other. The found no merit to court likewise exculpatory defendant’s claim that the State withheld evidence provided perjured had been testimony, observing allegations that the testimony Attorney refuted the sworn of Assistant State’s Wood rejected hearing Finally, on the the court motion for a new trial. remaining appellate claim that had failed to raise meritori- counsel ous appeal. appeal issues on The instant followed.

II. ANALYSIS The Post-Conviction Hearing provides Act mechanism which those under criminal sentence in this state can assert that their convic tions were the result of a substantial rights denial of the under the United States Constitution or the Illinois Constitution or both. 725 1(a) (West 2006); ILCS People Coleman, 183 Ill. 2d 378- 5/122— 701 N.E.2d 1070-71 purpose “The of the proceeding is to inquiry allow into relating constitutional issues to the conviction not, or sentence that been, and could not have determined on appeal.” Barrow, direct 195 Ill. 2d (2001). 901 In a postconviction proceeding, the trial court does not redetermine a guilt, defendant’s innocence or but instead examines constitutional issues escaped which have earlier People review. v. (2001). Rogers, 216, 221, 831, 197 Ill. 2d such, 756 N.E.2d 833 As a postconviction petition is a collateral attack upon prior a conviction sentence, and not a appeal. substitute for or an addendum to a direct Rogers, 221, 197 Ill. 2d at 756 N.E.2d at 833.

Proceedings by under the Act are commenced filing peti the of a tion in the circuit court in which the proceedings place. criminal took 1(b) (West 2006). See 725 ILCS petition The “clearly must set 5/122— respects forth the in petitioner’s which the rights constitutional violated” and affidavits, records, shall have attached thereto or other supporting evidence allegations why its or shall state the same are not (West 2006); Coleman, attached. 725 ILCS 379, 183 Ill. 2d at 5/122—2 701 N.E.2d at 1071. proceedings involving penalty

Postconviction the death contain stages. 410, 418, three distinct People Gaultney, v. 174 Ill. 2d 675 (1996). 102, N.E.2d 106 At stage, the first the circuit court must independently the petition days filing review within 90 of its petition patently determine whether “the is frivolous or is without (West 2006); Edwards, merit.” 725 ILCS People v. 197 Ill. 5/122—2.1 239, 244, 442, 2d If 757 N.E.2d 445 the court determines that petition merit, the is either frivolous or patently without it shall (West 2006). petition dismiss the by written order. 725 ILCS 5/122—2.1 petition one, If the is stage not dismissed at it advances to the second stage, may appointed indigent where counsel be for an if (West 2006). requested. 725 ILCS 5/122—4 2.1(c) provides considering Section of the Act in the 122— (1) file petition stage, may at the first the court examine the court (2) convicted; proceedings petitioner in which the action (3) by appellate proceeding; any transcripts taken court in such 2.1(c) (West 2006). proceeding. of such 725 ILCS The court 5/122 — allegations should examine those records to determine whether the

357 Shaw, 386 record. v. positively are rebutted petition (2008); Coleman, 704, 755, 708, Ill. N.E.2d App. 3d (courts upheld 382, consistently have at 1072 App. 3d at N.E.2d record). by the trial allegations are contradicted dismissals where presented, claim has been Further, whether a meritorious to determine merit of the inquire must into relevance court Ill. App. People Deloney, documents. supporting (such (2003) 189, implicit an assessment is 793 N.E.2d 194-95 review). conducting first-stage a or two, file a to dismiss stage

At the State is allowed to motion (West (725 2006)), the court ILCS answer to 5/122—5 showing a petitioner has made substantial determines whether Coleman, 381, rights. 183 Ill. 2d at violation of constitutional 1072; People Hobley, N.E.2d at 182 Ill. 2d (1998). Thus, proceeding, of the whether stage at the dismissal under is concerned under section 122—2.1 or section 122— allegations sufficiеntly solely determining the petition’s whether would relief infirmity demonstrate constitutional which necessitate Coleman, under the Act. 183 Ill. 2d at 1071. N.E.2d The engaging any fact-finding circuit court is foreclosed from at a hearing dismissal be well-pleaded facts are to taken as true this point proceeding. in the Factual raised disputes pleadings require falsity supporting a determination of the truth docu ments cannot properly hearing; they which be made at a dismissal can only through evidentiary hearing. Coleman, be resolved a third-stage 380-81, 183 Ill. 2d at at 701 N.E.2d 1071-72. limited

In the instant defendant the appeal has issues to claims of newly discovered of innocence as- evidence actual and ineffective appellate sistance of both trial and counsel. Defendant ‍‌‌‌​‌​​​​​​‌‌‌​‌​​‌​‌‌‌‌​​​​‌​‌‌‌​​‌‌​‌‌​​​​​‌‌‌‍assails the dismissal circuit court’s summary petition, asserting of his the petition gist particulars. stated the of a claim in each meritorious of its matter, question

As a threshold we defendant’s strident reliance formerly on first- “gist” governed the standard that the circuit court’s stage postconvictions petitions. 1983, review of Prior to 122—2 section of simply required, alia, petition “clearly the Act inter that a set forth rights the in respects petitioner’s which constitutional were violated.” 1981, 38, provid Ill. par. Rev. Stat. ch. 122—2. The 1983 amendment ing first-stage legislature’s for dismissals was consistent with the simplified in a in insure that purpose providing procedure for order to justice system’s expended the criminal where limited resources Rivera, 364, 372, People 306, most needed. v. 198 Ill. 2d 763 N.E.2d dismissals, summary supreme 310 With the of our advent only present “gist” court a of a petitioner determined that a need 358 Porter, 74,

constitutional claim this stage. People 64, at 122 Ill. 2d v. 1158, (1988); 521 N.E.2d Gaultney, 418, 1161 Ill. see also 174 2d at (to 675 N.E.2d at 106 stage survive dismissal at this a defendant need only present a limited amount detail in petition). of Adherence the “gist” standard continued to endure over yеars. v. People Torres, 91, 228 Ill. 2d (2008); Edwards, 888 N.E.2d 100 Ill. 2d 445; Coleman, 380-81, at at N.E.2d 183 Ill. 2d at N.E.2d at 1071.

Notably, time, with the dynamics first-stage of review revealed degree “gist” a of tension between the standard and the “frivolous patently governing summary without merit” test dismissals. Recently, People Hodges, (2009), Ill. 2d N.E.2d 1204 Supreme the Illinois Court resolved our concerns: “[0]ur use of term ‘gist’ describes what the must at allege stage; legal the first is not the by it standard used petition circuit court to evaluate the under section 122—2.1 Act, summary section, which deals dismissals. Under that ‘gist’ alleged constitutional claim the defendant be is to *** within patently viewed without merit’ the framework of the ‘frivolous or *** Thus, Act, petition test. under the which is summary simply sufficient to avoid dismissal is one which is patently (Emphasis frivolous or without in original.) merit.” Hodges, 234 2d at Ill. 912 N.E.2d at 1209.

Recognizing that neither “patently “frivolous” nor without merit” Act, in the the Hodges provided was defined needed clarification: pro petition seeking postconviction “[A] se relief under the Act for rights may summarily denial constitutional be dismissed as patently only argu petition frivolous without merit if the has no Hodges, 11-12, able basis either law or in fact.” 234 Ill. 2d at 912 N.E.2d at 1209.

Moreover, provided insight the court further as to guideposts in meeting “arguable to be used “A basis” standard: arguable which lacks an basis or in one is either law fact is which legal theory on al indisputably based an meritless or a fanciful factual legation. example indisputably legal theory An meritless is one completely which is the record.” 234 Ill. 2d at Hodges, contradicted 16-17, Robinson, N.E.2d 217 Ill. 2d citing (2005) (rejecting inef appellate claim that counsel was failing appeal fective on identifica argue for direct out-of-court hearsay showed that tion of defendant was inadmissible where record hearsay exception spontane fell within the statement issue declarations). allegations include ous Fanciful factual those which are 17, 234 Ill. 2d at Hodges, “fаntastic or delusional.” 912 N.E.2d dismissal, is de novo. our review first-stage appeal from On trial Although Robinson, at 940. Ill. 2d at 838 N.E.2d to this may provide assistance dismissing petition for court’s reasons court, judg given for the the reasons judgment, and not we review Lee, Ill. App. ment. Innocence Claim

A. Actual mind, defendant’s in now consider principles we With these As newly discovered evidence. upon claim of actual innocence based on his essentially premised noted, culpability at trial was in participation his acknowledging presence videotaped confession Additionally, as the circuit Jerry Green. shooting death of corroborating the observed, body of evidence significant there was a proceed In instant in his statement.3 provided by details at the crime scene present that he was not ing defendant maintained noted, support, participation shooting. in the As and denied codefendant, Melvin defendant attached the affidavit of his convicted of Corr Jones, Department incarcerated in the Illinois presently who is ections.4 “solely responsible” that he is Melvin Jones’ affidavit he avers Green; by the Jerry accompanied that he was not murder of vicinity. in the

defendant and that defendant was nowhere during questioning falsely that custodial maintains course of his accomplice shooting; in the that the being accused defendant as in the suggested only that he not the individual involved police shooting “proposed leniency” a deal of if he could involve one or shooting. more others in the Melvin claims that he viewed this invita- provided circumstances” and opportunity my tion as an to “better “Anteleto Jones stating false confession” that information “via video me, handgun at the crime scene on accompanied by fired a .357 caliber custody he contacted June 2000.” Melvin further avers while tо defendant my organization” get “members word other discharged handgun a .357 being present that he had “admit scope 122— 3Although may exceeded the of section the circuit court have 2.1(c) by including videotaped statements of the codefendants of the Act necessary may analysis, have been deemed its the reference to those materials event, our de novo allegations Melvin’s affidavit. In to refute the reasons, judgment, the circuit court’s materials review is of the rather than impact analysis or conclusions. record do not our dehors trial affidavits, defendant aver respective 4In both Melvin Jones and the their at the Randolph County, suggests were incarcerated to be in which facility filing. at the time of same correctional ***

the crime scene causing the death Jerry Green”; of that if defendant “refuses to instructions,” adhere to those he would be violating pledge his of superior honor to a member and either “he or a close relative would be killed.”

1. Factual Basis During the course of its first-stage review, the trial properly revisited the trial record to determine whether proceedings rebut- ted allegations of Melvin Jones’ Judge affidavit. only Fox not presided entirety over the proceedings, defendant’s trial including pretrial motions, trial, jury and posttrial motions, but also over the postconviction proceeding. conclude, we, He could well as do that the trial record is stocked with abundant evidence contradicting the recit- als of Melvin Jones’ affidavit.

Defendant’s following actions his arrest and during custodial questioning provide appropriate starting point analysis. for our Initially, we discern operative premise that the of the actual innocence claim, that Melvin’s threats harm to family defendant or his compelled him falsely murder, to confess to the clearly is contradicted by postarrest defendant’s actions. Rather submitting than to Melvin’s demands, defendant steadfastly denied his own participation and implicated instead Melvin in the persisted murder. He in proclaiming his innocence to three different teams of detectives for over 12 hours until he first made polygraph turn, admissions to the examiner. In his initial gave assertions of way innocence explanation detailed shooting, highlighting Melvin’s minimizing involvement while his participation. own Defendant also gratuitously included Ashby, Travis although that aspect of his encompassed revelations was not within Melvin’s present demands. Defendant’s claim of coercion is also belied by acknowledgment videotaped statement that no had one causing made threats him give the statement.

findWe further contradictions of record inuring from defendant’s verified suppress motion to litigated his statements during the course pretrial proceedings. motion, In that defendant swore that he was illegally interrogated despite his election to remain silent and right invocation of his to counsel. Additionally, physical, he claimed psychological coercion, and mental pushed, he “was shoved and punched by polygraph examiner at 11th and State while two other officers looked on.” Although decidedly spurious, allegations these are clearly at odds with present reality claim that in he was by coerced Melvin Jones’ threats of harm.

Significance necessarily particulars is found in the of defendant’s videotaped statement. Notably, although not directed to include Travis accusatory details of substantial Ashby, defendant nonetheless offered defendant, it was Stank who drove participation. According Stank’s weapons fired at the group provided to the area and two of statement, provided by details not victim. Defendant’s which includes Jones, prior shooting, to the group’s Melvin describes the activities beer, including purchasing drinking describing as well as particular alley Additionally, used to reach the crime scene. immediately preceding shooting, including Baby offers details Old he opening waving his car door and his hands around as was by presence confronted Jones. likewise Defendant’s manifested wiped eyes videotaping the tears he from his at the identifying photograph when of the victim.

Moreover, we find defendant’s confession to be corroborated evidence, thereby contradicting the trial Melvin Jones’ contention gunman. he was the testimony sole Curtis Moore’s that when he Baby’s looked out his car open window saw Old door is consistent Likewise, with defendant’s rendition. the medical examiner’s testimony characterizing injuries the to Old hands Baby’s two as defensive wounds is consistent description with defendant’s that the victim waving being Furthermore, was his hands as he shot. the was clearly evidence weapons established that at least two used in were Deal, the shooting. experienced gunfire Odis who had during army service, perceived firing Also, guns. according from two or three Moore, Curtis Baby just prior Old left the house hearing to Curtis 8 to gunshots, 10 some louder than Additionally, Investigator others. Shader recovered types two different of ammunition from the crime scene. Although Amberger forensic scientist was unable to state casings whether the .380 weapon, had been fired from one he able to determine that the casings two 9-millimeter were indeed fired from the same firearm. Defendant’s admission that he fired two shots at the victim from a .357 is by also corroborated the absence of .357 am- testified, munition from the crime scene5.As Amberger he would not expect casings to find .357 spent cartridges manually must be ejected from revolvers.

In determining allegations, the merits of defendant’s factual we guided are supreme the court’s recent clarification of the standard governing first-stage longer dismissals. Under concerns Hodges, our no upon focus whether the presented gist defendant has of a 5Although videotaped type specify statement does not fired, weapon he in his oral statements to Detective Lenihan and Assistant Pfeiffer, Attorney State’s acknowledged handgun was indeed a revolver.

362 grievance, constitutional petition but rather whether the is frivolous noted, patently petition subject without merit. As is summary arguable dismissal where it lacks an basis in Hodges, law fact. 234 11, Ill. 2d at In defining 912 N.E.2d at 1209. the contours of frivolous allegations, Hodges recognized previously factual that it had corpus interpreting applying relied on federal habeas decisions in particularly our Act. “Our reliance on such case is apt law this Assembly patterned instance because the General section 122—2.1 of statute, §1915.” the Act after pauperis the federal 28 U.S.C. forma 12, Thus, Ill. 2d Hodges, 234 912 N.E.2d at 1210. the court found the interpretation instructive of “frivolous” articulated the United Supreme Williams, States Court in Neitzke v. L. 490 U.S. 104 (1989) (“those 338, 348, Ed. 2d 109 S. Ct. claims whose baseless”); clearly factual contentions are see also Denton v. Hernan dez, 25, 33, 340, 350, L. 504 U.S. Ed. S. Ct. (1992) (“a finding appropriate of factual frivolousness is when the alleged wholly facts rise to the level of the irrational or the incred ible”).

Applying “arguable basis” test to the instant leads to inescapable conclusion that defendant’s claim of actual innocence allegations based on fanciful factual are indeed baseless. To is which give requires credence to defendant’s claim determinations that are Norris, human beyond “incredible and the limits of belief.” Mannen v. required We would be N.E. his initial postarrest encompassing conclude that defendant’s actions followed, police, denials to the as well as false accusations which However, simply totality a ruse. of the scenario he has of lacking any logic. Assuming, example, fered is semblance of Jones to programmed by indeed was directed and initio, necessity frustrating confess ah this leaves unresolved police polygraph period the efforts of the examiner for a of over explanation as to his motivation for hours. Defendant offers no causing attorney spurious allega his to make misleading his counsel needless thereby expending and misconduct police tions coercion actually if claims to have followed script courtroom hours the he now him called on to confess. pales light in of defendant’s veracity

The of that scenario likewise contradic- Understandably, are troubled too the earlier denials. we 3, parents to his dated October tion reflected in defendant’s letter K(l), where 2000, postconviction petition as exhibit attached to his it.” Addition- threatened me to do acknowledged: gang “No member admit his had ordered defendant to assuming only that Melvin ally, shooting, perplexed in we are participation and the presence own 363 include, not but the only participa- defendant’s need to also to stress of, in defendant’s plot, tion Stank in the to the extent reflected inuring videotaped statement. We find further contradiction from .357, given Melvin’s direction that defendant admit he fired a Melvin’s semiautomatic, a awareness that in addition to his .380 9-millimeter provided adequate was fired. The defendant has no answer to these discern questions, any nor do we that exists.

It is our of defendant’s claim does not appraisal axiomatic that credibility stage proceeding include assessments as at this of the we Coleman, engaging finding. are foreclosed in fact 183 Ill. 2d from 380-81, Nоnetheless, at 701 N.E.2d we are directed to make allegations determination as whether factual rise to the to level of the or are trial wholly irrational incredible. The record to be provide sure reflects that defendant’s efforts alibi defense were unavailing well in posttrial proceedings. at trial as His belated attempt third postconviction to do so within the framework of review clearly desperation. manifests a fanciful act of

Credibility aside, appraisal assessments our of defendant’s claim Coulson, calls to mind in the facts the victim and sole where witness alleged wallet, robbery to an testified “the that five men who took his gun point, voluntarily home, him accompanied permitted to his and go him to they obligingly outside, trusting inside alone while waited that their victim keep promise police.” would call the (1958). Coulson, 296, v. People 290, 96, 13 Ill. 2d 149 N.E.2d Not surprisingly, reversing conviction, supreme Coulson’s rejected testimony, this it finding gullibility that “taxes the Coulson, credulous.” 13 Ill. 2d at 149 N.E.2d at 99.

It O’Connor, also harkens back Ill. (1952), alleged rapes where the victim of multiple crimes nature, against Plaines, purportedly which occurred in Des testified assaults, that after the the defendants drove her to various taverns many present, people where she drank and was that beer allowed telephone, use ladies room and that was then she driven through alone, making Chicago streets of a restaurant entered outcry no while her assailants car. appeal, waited outside their On reversed, the court concluding “improb evidence revealed ’ abilities and her inconsistencies’ which tended to make claim incred O’Connor, Earlier, ible. 412 Ill. at N.E.2d at 277-78, People Buchholz, (1936), N.E.2d alleged court likewise found victim unconvincing testimony unarmed, the defendant, although robbing finding after her and only 15(2, home, had accompanied gave she then her to the of her door her his and telephone requested correct name number and that she

364 “greater

call him. The common thread of these narrations have value Coulson, 295, 13 Ill. 2d at 149 as fiction than as credible evidence.” difficulty concluding little in that the incredible N.E.2d at 98. We have supporting defendant’s claim of actual innocence factual assertions therefore, credulous,” and, lacks gullibility “taxes the likewise 11, 2d arguable Hodges, basis in fact. 234 Ill. 912 N.E.2d 1209. Legal Basis noted, below, judge rejected trial also proceedings

As in the did not reasoning that Melvin Jones’ affidavit petition, not of and that its recitals were newly constitute discovered evidence upon lead to a different result retrial. such a conclusive character as to 630, Collier, Ill. 3d 900 N.E.2d App. find v. 387 agree. People We We (2008), instructive: 396 innocence is

“Among judging for claims of actual the touchstones by the defendant must requirement that the evidence adduced it ‘newly be discovered.’ That means must be evidence first and that he could not have not available at a defendant’s trial was through diligence.The evidencemust also be discoveredsooner due 148, 154, 2d People Morgan, v. 212 Ill. material and noncumulative. addition, 524, it must be of such N.E.2d 527-28 817 change on probably it would the result conclusive character that 892, 540-41, Barrow, 506, People 195 Ill. 2d 749 N.E.2d retrial. v. (2001).” 636, Collier, App. 900 N.E.2d at 403. 387 Ill. 3d at 913 newly is not precedent line of holds that evidence An unbroken at or already to a defendant presents it facts known discovered when been may facts have trial, though the source of those prior to Coleman, Ill. 381 unknown, uncooperative. People v. unavailable or Barnslater, (2008); 534, People 541 v. 886 N.E.2d App. 3d (2007); 523, 293, People see also v. 512, App. 373 Ill. 3d 869 N.E.2d (1993) 129, 136 Moleterno, 615, 625, 627 N.E.2d App. 254 Ill. 3d “newly discovered” where be considered ‍‌‌‌​‌​​​​​​‌‌‌​‌​​‌​‌‌‌‌​​​​‌​‌‌‌​​‌‌​‌‌​​​​​‌‌‌‍as (weapon could not in well possession in it was of its existence and whose defendant knew Chеw, trial); App. Ill. 3d People v. advance (1987) newly discovered evidence (rejecting claim of N.E.2d trial); People prior the evidence defendant knew about where (claim (1975) 78, 82-84, Jones, 60-61 App. 26 Ill. 3d knew that an defendant rejected evidence where newly discovered him and a statement favorable witness had made uncooperative subpoena). was available supreme our derives from principle for this support

Further N.E.2d Harris, holding court’s review, presented the defendant where, (2002), postconviction on of actual innocence. support affidavits of his brothers of his claim home them in his Both brothers averred that the defendant was watching shooting. apartment basement a movie at the time of the 300-01, Harris, Rejecting 206 Ill. 2d at 794 N.E.2d at 187. the claim discovered, newly supreme that this evidence could be considered reasoned: allegedly “[CJlearly,the with his brothers fact that night the could discovered More on of the crime have been sooner. importantly, defendant is the source of this information and Harris, of trial.” Ill. armed with this information at the time 2d at 301, at 794 N.E.2d 188. Davis, 3d App.

An identical result obtained in 382 Ill. v. 701, Davis, during In postconviction 889 N.E.2d 622 the proceedings of to presented eyewitness the defense the affidavit an the defendant’s arrest that corroborated some of defendant’s version Davis, 712, at trial. 382 Ill. 3d at at App. rejecting 889 N.E.2d 633. In evidence, newly rationally the claim of discovered our Second District concluded that the any affidavit “does not contain facts that defendant Davis, would not prior have known at or to his trial.” 3d App. 382 Ill. at 889 N.E.2d at 633. recognize People Molstad,

We that in Ill. 2d (1984), supreme our court found that the affidavits of codefendants attesting that present the defendant was not the as when victim was saulted satisfied requirement being “newly the of discovered” notwithstanding defendant’s awareness of the evidence trial. before Molstad, 134-35, 101 Ill. Howеver, 2d at 402. N.E.2d at we find in clearly distinguishable facts Molstad from instant case.

First, Molstad, in presented the affidavits were after the codefen prior sentencing. Therefore, dants had been found but af guilty, to put fiants credibility themselves at risk because their a own could be in the Molstad, factor their 2d penalty. assessments of ultimate 101 Ill. here, 461 N.E.2d at Conversely, 401. Melvin Jones’ affidavit August was executed some 17 after months his own trial. Hence, his admissions could have no bearing upon disposi ultimate Second, Molstad, tion. they the codefendants did not averred testify come forward on Molstad’s could do behalf because Molstad, so 2d damaging position. without their own defensive 101 Ill. Here, 461 N.E.2d at lacking Melvin Jones’ affidavit is allegation that he have come earlier on would forward Third, but exposure. although behalf for his affidavit own Melvin’s defendant, purports to exonerate his false accusations of defendant’s had complicity proceedings. no relevance to the evidence in the trial severance, accusatory Because of the de Melvin’s statements facto police simply were a in defendant’s trial. never consideration Moreover, noted, newly evidence must be of discovered such change conclusive nature that it probably would the result on retrial. Barrow, 540-41, Here, 195 Ill. 2d at analysis 749 N.E.2d at 913. abiding Melvin Jones’ affidavit fails to instill an belief that his aver requirement. Although scope, ments fulfill that brief in the affidavit is, sure, cleverly to be rather purport drawn. While the averments inculpate Melvin, “solely responsible” his concession that he is for the Jerry simply sequitur. murder of Green is a non in the af Nowhere actually inculpate fidavit does Melvin himself. There is no admission conjured up plan revenge that he for the embarrassment he suf fered, or, discharged weapon that he that killed for that Green matter, present grаtuitous that he at the even was crime scene. His acknowledgment being “solely responsible” simply meaningless is assemblage simply acknowledge of words that could that the events leading beating demise Jerry precipitated by Green’s viewed, presence girlfriend. suffered of his Thus the affidavit is simply benign gesture; upon meaningful it reveals no facts which a prosecution pursued. be of Melvin could

Lastly, the trial found Melvin’s affidavit to be flawed because actually testify it did not contain a statement that would to the alleged People Brown, App. in the facts affidavit. (2007), judice, as in the case of his support N.E.2d sub innocence, freestanding petitioner claim of actual attached an affidavit codefendant, here, from his Smith. As the codefendant averred that Brown, present not when the offense occurred. 371 Ill. was 982, Although proceeded the matter App. 3d at 864 N.E.2d at 775-76. review, third-stage to we nonetheless found that the affidavit was hearing: at the insufficient to merit consideration affirmatively aver that he would have testified to “Smith does not An affidavit must the contents of his affidavit at defendant’s trial. evidence, only identify the source and character of the it must Brown, identify availability alleged of the evidence.” 371 also the 982, App. Ill. 3d at 864 N.E.2d at 776. 176, Johnson, Ill. 2d 700 People also find instructive v. 183

We (1998), supreme upon general court focused the N.E.2d 996 where the there, 122—2 the Act. As the court noted section requirements of allegations of constitutional support the defendant to requires ” “ Johnson, ‘affidavits, records, or other evidence.’ violations (West 190, 1003, quoting 2d at 725 ILCS Ill. 5/122—2 1994). Brown, “allegations the must the court determined that As identifies with reasonable accompanied by an affidavit which be alleged source, character, availability of the certainty the 1003; 190, also Johnson, 2d 700 N.E.2d at see 183 Ill. evidence.” 240, 304, Johnson, Ill. 2d People N.E.2d third-stage Although foregoing decisions relate to second- or the basic, requirements of are there is proceedings, because the affidavits should authority suggesting interpretation a dearth a different of govern first-stage dismissals. considerations, find upon foregoing

Based we that defendant’s Accordingly, claim of actual innocence was meritless. indisputably trial correctly concluded that the claim was frivolous patently merit. without

B. of Counsel Ineffective Assistance Trial We next consider defendant’s claim ineffective assistance inuring trial failure alibi present counsel from counsel’s additional testimony changed could allegedly witnesses whose have the outcome claim, of the proceedings peti- at trial. support tion Anthony attached the handwritten statements of Thomas Darryl during hearing offered Thomas on defendant’s motion for new trial. The purport statements establish defendant was present night at the witnesses’ home on the of the shooting. Defendant petition presented gist maintains that the aof meritorious inef- investigate, fectiveness claim because counsel failed to locate call the individuals to testify during hearing trial or on the motion for new trial. The challenges appellate defendant also ef- counsel’s failing fectiveness for raise appeal. the issue on direct Initially, responds by asserting the State that defendant presented the same Anthony Darryl statements of Thomas and during Thomas his motion for trial. new The trial court examined the statements, considered testimony arguments deny and heard before ing that, The motion. State contends as the substance Anthony and Darryl Thomas’ their potential statements and existence as wit litigated nesses during proceedings, trial issue could have been Thus, on appeal. raised the State maintains that issues that could have been on appeal raised direct but were not are considered Williams, forfeited. N.E.2d (2004). Nonetheless, precedent dictates that the forfeiture will be bar relaxed appellate where the waiver stems from ineffectiveness of Williams, counsel. 209 Ill. 2d at 807 N.E.2d at 452.

However, we aspect argument. do find merit in one of the State’s postconviction petition Defendant’s of makes no mention trial counsel’s in failing hearing ineffectiveness to call the at the witnesses Nor, on matter, defendant’s motion new trial. for that does the appellate raise the issue failing of counsel’s ineffectiveness for to raise hearing the issue of trial counsel’s actions at the or for not

368

contesting rejection posttrial the trial As court’s of motion. these of portions present pro claims were not included in his se (West deem petition, we them to be forfeited. See 725 ILCS 5/122—3 2006); 498, 1093, Jones, 507-08, v. 213 Ill. 2d N.E.2d People 821 1098 (issues (2004) postconviction petition in a not raised dismissed cannot appeal). raised first be for the time on against

Claims of assistance of counsel are evaluated ineffective Washington, v. two-prong the familiar test delineated Strickland 674, (1984), 668, U.S. L. 2d Ct. People 466 80 Ed. 104 S. 2052 v. (1984). Albanese, 504, Importantly, N.E.2d as applies equally Strickland standard claims ineffective 277, Golden, 283, of v. 229 Ill. 2d appellate People sistance counsel. (2008). 860, 891 N.E.2d Strickland, prevail

To on a under claim of ineffective assistance objec performance defendant must show that counsel’s fell below an probability tive standard of and there is a reasonable reasonableness Villarreal, 209, 228, as 198 Ill. 2d prejudice People occurred a result. (2001). 1175, be to ex prejudice 761 N.E.2d Sufficient will found that, probability ist where “there is a reasonable but for counsel’s been unprofessional errors, proceeding the result would have 694, 698, Strickland, 80 L. Ed. 2d at 104 S. Ct. different.” 466 U.S. at 2068; Erickson, N.E.2d 183 Ill. 2d probability is a probability “A reasonable suffiсient Strickland, proceeding. undermine confidence in the outcome” of the L. 466 U.S. at 80 Ed. 2d at 104 S. Ct. at 2068. foregoing principles, Guided we now consider whether the claim correctly defendant’s ineffective assistance trial court dismissed determine whether patently frivolous and without merit. We must arguable performance objective below an it is that counsel’s fell arguable and it is defendant was standard of reasonableness 16-17, Hodges, Ill. 2d at 1212. prejudiced. Basis Factual allegations arguably determining whether defendant’s revisit the performance, deficient we must demonstrate trial counsel’s during posttrial proceedings. transpired the course events that seen, alleged prosecution trial that the violated As the motion for new made discovery withholding exculpatory statements procedures by However, both statements Anthony Darryl Thomas. Thomas days some 45 after on March given reflected defendant’s trial concluded. discovery hearing,

Moreover, posttrial at the notion Attorney testi- clearly State’s Wood dispelled. Assistant violation was 23, 2003, spoke Darryl February fled that Thomas on she first Darryl after trial had concluded. had called her from him jail papers upon in to material witness served response Minnesota During this upcoming in connection with the trial of Melvin Jones. conversation, Darryl stated that he was with defendant at the time turn, Jerry Anthony murder. In Ms. Wood re-interviewed Green’s early Thomas in her office in March and for the first time was told that drinking Darryl defendant was with him and at the time of the shooting. provided Both individuals then statements that were and, turn, tendered to defense counsel were attached to defendant’s motion. discovery

The trial court also clarified that the State’s answer to April 20, 2000, filed Anthony Darryl identified both and Thomas as prospective witnesses, expressly stating that their written statements had been tendеred to the in open defense court. The court also found significant any the absence of attesting affidavits or sworn statements that trial Anthony Darryl, counsel had not interviewed did nor statements of either witness contain such In denying averments. trial, motion rejected argument for new the court that disclosures were of such a conclusive nature that would have af- fected the verdict. postconviction

In the proceedings followed, Judge Fox reiter- ated his analysis findings earlier tendering as to the of the state- ments, content, their and their inability Moreover, to affect the verdict. the court determined that there nowas reason to believe that defense counsel fully was not aware of strategic the witnesses or that counsel’s calling reasons for not them at trial least bit unsound. We agree and therefore provide conclude that defendant failed arguable factual basis demonstrating performance that counsel’s fell objective below an standard of reasonableness. Legal Basis question

We also address the legal of whether defendant’s theory failing present counsel was ineffective for testimony Anthony Darryl indisputably Thomas was in Hodges, meritless. As question this focuses theory on defendant’s at trial defense whether the testimony from the witnesses arguably support would theory. Hodges, this See 234 Ill. 2d at 912 N.E.2d at 1213. trial,

At interposed Essentially, the defense of alibi. defense asleep maintained that defendant home his bed when shooting occurred. In support theory, of that the defendant offered testimony mother, of his Although Audie Jones. defendant did not testify, elect to there is little reason to doubt that he subscribed to the theory parents defense offered his counsel at trial. a letter to his postconviction petition dated March attached to as exhibit K(2), defendant stated:

“I I I going know damn well was the house at the time. am not I’m cop talking out for some time over some shit I didn’t do. trial now ***.” about

Here, assuming Anthony Darryl consistently testified with the statements, testimony placed recitals of their their would have such, defendant at a different location than his home. As the evidence testimony with the trial of Mrs. Jones and would would have conflicted glaring also have been inconsistent with the admission we have gleaned parents. from defendant’s letter to his circumstances, Barr, find Ill. App.

Under these we 1077, (1990), Barr, In 558 N.E.2d 778 instructive. a residential burglary prosecution, agent the State’s undercover testified that he purchased equipment housing from defendant at a stolen stereo agent day project. Defendant testified that he had met with the on narcotics, selling any him but denied stolen question and sold review, conviction, sought postconviction property. Following defendant failing three alleging trial counsel’s ineffectiveness for to interview In affirming have corroborated his alibi defense. witnesses who would petition, the dismissal of defendant’s the Barr court first noted alibi at trial there was no presented because the defendant had no Barr, alleged witnesses to corroborate. alibi defense for 1081, at 780-81. The court further App. 200 Ill. 3d at 558 N.E.2d reasoned: circumstances, hardly said that failure to

“Under such it can be ineffective assistance of alleged call the alibi witnesses constituted Indeed, argued it could well be that trial counsel would counsel. ‍‌‌‌​‌​​​​​​‌‌‌​‌​​‌​‌‌‌‌​​​​‌​‌‌‌​​‌‌​‌‌​​​​​‌‌‌‍as their incompetent had he called these witnesses have been testimony Barr’s and all but ensured his would have contradicted Barr, 1081, App. Ill. 3d at 558 N.E.2d 781. conviction.” 200 applies to the case at bar. perceive that the same rationale We present and what witnesses to decisions on what evidence to Counsel’s v. Mun strategy. People matters of trial routinely call are considered (2002); Enis, 104, 139, 155, Peоple v. son, Ill. 2d 794 N.E.2d 175 206 (2000). 1, decisions are 361, 402-03, 24 Such Ill. 2d 743 N.E.2d 194 assistance immunity from claims of ineffective generally cloaked with 664, 432, West, 418, 719 N.E.2d v. 187 Ill. 2d People of counsel. (1999). not be second- Further, strategic decisions will counsel’s might pursued have a differ attorney another guessed; “the fact that People competency determination.” a factor strategy ent is not (1994), 476, 797, citing 465, N.E.2d Palmer, Ill. 2d v. 537, 548-49, 900, Hillenbrand, 121 Ill. 2d 521 N.E.2d 904-05 People v. viability In that the judiee, the case sub the court also concluded by of petition compromised of defendant’s was further absence supporting It is of course well settled that a claim that attachments. supported investigate trial counsel failed to and call witnesses must be Enis, proposed 194 Ill. 2d at affidavit from witness. affidavit, reviewing at 13. In the absence of such an N.E.2d proposed provided cannot determine witness could have whether testimony defendant, to the and further or information favorable Enis, unnecessary. review of the claim is 194 Ill. 2d at 743 N.E.2d requirement supporting at 13. The attachments is likewise codified Act, in section 122—2 providing “[t]he shall have affidavits, records, supporting attached thereto or other evidence its allegations why or shall state the same are not attached.” 725 ILCS (West 2006). 5/122—2

Defendant language maintains that the of the statute does not necessarily require Bates, Relying People App. affidavits. on 324 Ill. 3d (2001), 755 N.E.2d 139 argues provision that the clearly supporting Bates, allows for other forms of documents. despite affidavit, the absence of an support the court found police defendant’s ineffectiveness claim reports from that referenced importance Bates, missing witness. 324 Ill. App. 3d at 815- However, 715 N.E.2d Bates, at 142-43. distinguished from the case, instant Bates, State never contested the statements. 325 Ill. App. 815-16, 143; 3d at Smith, 715 N.E.2d at App. see (1994) (failure to attach affidavits is necessarily fatal postconviction petition allegatiоns stand where record). uncontradicted and supported by are However, judiee, in the case sub the handwritten statements of Anthony Darryl Thomas and are Thomas neither sworn nor notarized. They are by Moreover, also contradicted the trial record. the state- lacking specific noted, ments are detail. As the trial court “neither of these any statements mentions support date or address to *** alleged claim, defendant’s importantly alibi and more neither *** statement indicates in way people that either of these never Further, contacted or interviewed defense counsel.” the state- contradictory ments are as to when defendant and left the awoke grandfather’s According home. Anthony, grandfather put to defendant out about 6 or 7 a.m. morning. Curiously, Anthony the next also “[t]he admits that first time I I Attorney talked to the State’s told them that [sic] Anteledo wasn’t there so I’m going testify say- ing hand, that Darryl, he was.” on the [he other states that “we sleep up

defendant] went to and woke at 11:00 and walked to the store.” posttrial provided

The circuit court concluded that the disclosures by Anthony and Darryl Thomas were not of such a conclusive nature that have would affected verdict. We concur that challenge determination and further find that defendant’s to trial competency indisputably counsel’s was itself meritless. We conclude entirety posttrial proceedings that the fails to establish deficient performance resulting prejudice. on defendant’s behalf or

C. Ineffectiveness of Counsel Appellate claim, remaining appellate that We last address defendant’s failing counsel was ineffective for to raise the issue of trial counsel’s noted, appeal. two-prong effectiveness on direct As Strickland applies equally appellate standard to claims of ineffective assistance of Golden, Accordingly, Ill. 2d at 864. counsel. 891 N.E.2d appellate “[a] defendant who contends that counsel rendered ineffec assistance, issue, e.g., by failing argue must show that the tive that, objectively failure but to raise issue was unreasonable failure, for this sentence have been conviction or would 65, 74, People Griffin, reversed.” v. 178 Ill. 2d 687 N.E.2d (1997). underlying nonmeritorious, If the issue is the defendant has prejudice. People Rogers, 216, 222, 2d suffered no v. 197 Ill. 756 N.E.2d (2001). 831, 834 obliged every raise

We are of course mindful that counsel is not appeal incompetence conceivable issue on and it is not of counsel to raising which, judgment, are refrain from issues counsel’s without merit, patently wrong. appraisal People unless counsel’s of the merits is (2000); Smith, 179, 190, 745 N.E.2d It is Easley, 192 Ill. 2d well appellate concerning counsel’s choices which issues to settled that Ill. 2d at pursue Rogers, are entitled to substantial deference. 756 N.E.2d at 835. counsel’s

Here, patently appellate decline to deem erroneous we asserted the record and decision not to raise the issue assessment of challenged perfor- trial counsel’s Although defendant. hearing, understanding our of what during posttrial mance pretrial disclosures yielded no deficiencies. The State’s transpired witnesses and also Anthony Darryl potential identified Thomas as the witnesses had been original statements of reflected jointly indicted with court. Because defendant was open tendered Anthony and Jones, assumption it that while is reasonable information, those disclosures concerned may have had relevant Darryl ap- this Trial counsel confirmed defendant. rather than the Melvin exculpa- alleged that the trial he in for new where praisal his motion in not referred to “was newly tendered statements tory nature of the call such, not to trial counsel’s decision reports.” As police extent, same reasonable. To the objectively either at trial was witness this issue pursue not to decision perceive appellate counsel’s we reasonable. objectively appeal on was likewise appeal this issue on not to raise assuming counsel’s decision Even we are unable performance, deficient conceivably did constitute record fails to any prejudice. The discern that defendant suffered raised, a this issue been probability that had demonstrate a reasonable find no therefore appeal. obtained on We different result would have component of denial of relief on this error in the circuit court’s in arguable basis law clearly lacking any it is petition defendant’s in fact.

III. CONCLUSION reasons, of the circuit judgment affirm the foregoing For the we as frivolous summarily dismissing postconviction grant request the State’s for patently merit. We further without judgment fee for incorporate in our a of $100 assessment of costs argu- additional fee of for oral defending appeal $50 this also an ment.

Affirmed. SMITH, J., concurs.

FITZGERALD HOWSE, dissenting:

JUSTICE majority, in I my colleagues respectfully I must dissent. Unlike to our approach directs us to take such a broad Hodges do not believe meritless indisputable analysis of whether a is based on allegation. factual legal theory or a fanciful trial, his prior murder Although defendant confessed to the Defendant petition raised a claim of actual innocence. postconviction Jones, codefendant, support. a attached an affidavit from Melvin as be- affidavit, falsely accused defendant he states he Melvin’s his he falsified video shooting. Melvin states ing accomplice to obtain an effort confession and forced defendant to confess Melvin averred Additionally, more lenient sentence from the State. members because he contacted able to force defendant to confess to be- that he had to admit to defendant a threat gang of his to relate a fam- scene or either discharging gun at the crime ing present and ily member or a friend of defendant would be killed. Melvin further states defendant present was not at the scene of the shooting. now admits being “solely responsible” committing the crime at this time changed because he has lifestyle and amended his former ways and could “no longer live with the fact that an person innocent is incarcerated for something responsible I’m for.” The page final signed, his affidavit is and sworn notarized.

As majority notes, correctly question before us is “whether petition arguable defendant’s had fact, no basis either in i.e., law or in whether it was based on an indisputably legal meritless theory or a fanciful allegation.” factual See 234 Ill. Hodges, 2d at 17.

Our supreme court has based its definition of fanciful and delusional claims on recent federal corpus habeas cases such as Neitzke Williams, 319, v. 338, 490 U.S. 104 L. Ed. (1989); 109 S. Ct. 1827 (5th Koetting v. Thompson, 1993); 995 F.2d 37 Jones, Cir. and Weeksv. (11th 1996). 100 F.3d 124 Cir. See Hodges, 234 Ill. 2d at Examples of “factual fanciful allegations” identified by federal courts include: a defendant’s claim that drugged raped he was and by 28 times inmates (Denton prison officials at Hernandez, different institutions v. 504 U.S. L. (1992)); 118 Ed. 2d 112 S. Ct. 1728 a claim that Robin Hood Merry and his Men deprived prisoners of their access to mail or genie granted that a a warden’s wish deny prisoners any to access to (Lawler (6th legal Marshall, texts 1990)); 898 F.2d 1199 Cir. prisoner’s claim prison guards intentionally put metallic (Evans prisoner’s substances in the food v. Six Unknown Federal (1990) (table)). Guards, Prison 908 F.2d 975 majority The petition concludes defendant’s is based on fanciful factual allegation. conclusion, To reach this the majority points to postarrest defendant’s behavior as circumstantial evidence that the petition allegations unlikely According are to be true. majority, to the possibly Melvin’s affidavit cannot support defendant’s claim actual innocence in this case because it “leaves necessity unresolved the frustrating police polygraph the efforts of the examiner for a period of 12 hours.” App. majority over 399 Ill. 3d at 362. The affidavit, concludes that in order to “[w]e believe Melvin’s would be required to conclude that postarrest encompassing actions police, his initial denials to the as well as the false accusations which followed, simply App. majority were a ruse.” 399 Ill. 3d at 362. The also takes issue with the fact that claims responsibility sole shooting though even presented suggested evidence trial used, guns two and that implicated plot defendant Stank although allegedly by not directed do so Melvin. delusional, major fanciful and definition of support of their (1958), People Coulson, Ill. 2d 149 N.E.2d

ity People cites (1952), v. Buch O’Connor, v. holz, involve Those cases do not 270, Ill. N.E.2d Hearing Post-Conviction hearings under the modern first-stage either here. presented issues the facts and patterns fact Act or similar contention, alterna- plausible several majority’s Contrary to the allegedly explain defendant’s exist that could explanations tive may have example, For incongruent behavior. postarrest going to and whether he was Melvin’s threat needed time to consider He also a crime he did not commit. convicted for allow himself to be confessing. to Melvin not may showing have been bravado suggests guns two Moreover, that the trial evidence neither the fact implicated fact that defendant in the murder nor the were involved irrefutably during in the murder his confession another individual present for the statements that defendant was suggests Melvin’s murder are fanciful. sent majority apparently

The is also troubled a letter defendant trial, attached to his parents prior to his which was K(l), [sic] member threaten gang exhibit defendant said “No where however, majority, does not discuss defendant’s me to do it.” The “I the and I other statements in the letter that went into station up my and told a lie on damn scared and weak-minded and fucked done,” “I self, I and that which is the dumbest shit could have ever along just in and went up police was scared and shook the station me his statements they about the same shit Melvin said after showed majority also does not discuss or paper on and the video of him.” The to his apparently letter defendant sent make mention of an earlier 25, 2000, part attached as of exhibit parents on March which was also transcript a specifically K said he was shown petition, to the where making his videotaped police prior confession the Melvin’s plausible explanation a provides own confession. The March 25 letter surrounding as defendant could be so familiar with the details to how statement, concern gave videotaped major a the murder when he his fanciful. finding of the in defendant’s claim majority concretely disproves us Simply put, nothing in the record before Resolving appar- the in affidavit. allegations rebuts the found Melvin’s pretrial behavior between defendant’s incongruities ent factual created credibility requires a petition necessarily in and the claims at “axiomatic” to avoid majority identifies as determination that credibility determina- thinly veiled stage majority’s of review. The this state- specifically it refers to Melvin’s apparent tion becomes when subsequent in a meaningless assemblage of words” “simply ments as 376

portion opinion. Ill. App. 399 3d at 366. The correct in standard evaluating allegations in petition factual before us is to delusional, determine whether are they fantastic or consider not to in unlikеly light whether are of the evidence adduced at trial. in allegations While the Melvin’s affidavit appear might unlikely given court, somewhat the record before I this see allegations fail to how unrebutted that defendant to the confessed murder based on a from present threat Melvin and was not when properly murder occurred can be described fantastic or delusional. “ noted, Hodges As the court improbable allegations might ‘[s]ome disposed be properly summary judgment, of on but to them as dismiss development disregard age-old frivolous without factual is to insight many might “strange, true; allegations be but for truth is ” always strange, Stranger than 234 Hodges, [Citation.]’ fiction.” Ill. n.5, 13 quoting Hernandez, 25, 33, 2d at Denton v. 504 U.S. L. Ed. S. Ct. 1733-34 Any direct challenge credibility to Melvin’s or defendant’s is Coleman, premature stage this of review. See Ill. 2d People (1998) (“our 380-81, holdings past have engaging any fact-finding foreclosed the circuit court from at a hearing well-pleaded dismissal because all facts are to be as true taken point Moreover, allegations “a proceeding”). at this belief that more, unlikely, peti is justify dismissing are without insufficient to Denton, Hodges, citing tion.” 234 Ill. 2d at 118 L. U.S. at say 2d at Accordingly, Ed. S. Ct. 1733-34. I cannot allegations presented factual Melvin’s affidavit are irrational or wholly Hodges, incredible. See 2d at addition, majority newly

In maintains Melvin’s affidavit is not presents already it facts to the discovered evidence because known prior to trial. Molstad, (1984), our supreme Ill. 2d 128 newly convicted codefendant constitutes held affidavit of a could been evidence because such an affidavit not have discovered on the The charges. before the conviction same acquired codefendant’s court held:

“The for a could not affidavits submitted as the basis new trial diligence. have with the of due The record been discovered exercise other, acquaintеd reveals with each that the defendants of presumably diligence part on the Molstad or his counsel due have posture could have what the codefendants would ascertained However, diligence forced no of could have taken at trial. amount to right amendment avoid the to violate their fifth codefendants did choose to [citation] if the codefendants not self-incrimination Molstad, do Ill. 2d at 135. so.” 101 in that Molstad, noting the affidavits distinguishes majority The guilty, but had been found presented after the codefendants case were in codefendants Mol sentencing. majority The also notes the prior because testify did or come forward specifically stad averred not damaging position. their defensive they could not do so without own “purports although Melvin’s affidavit Lastly, majority notes that defendant, complicity his false accusations of exonerate Ill. proceedings.” in trial had no relevance to the evidence App. 3d at 365. weight Melvin’s af- majority’s clearly go

The contentions to the newly discovered given, fidavit should be not to whether it constitutes given is a weight under Molstad. The the affidavit should be evidence stage at this totally analysis appropriate different than what is review.

Furthermore, majority “cleverly maintains Melvin’s drawn” actually in irrefutably affidavit is flawed because nowhere it does he inculpate majority himself. The also finds Melvin’s affidavit flawed actually because it does not contain a statement Melvin would testify alleged Noting to the facts in the affidavit at a new trial. newly evidence discovered must be of such conclusive nature that it probably change (Barrow, would the result on retrial Ill. 2d at 540-41), majority analysis concludes an affidavit “fails abiding instill an requirement.” belief that his averments fulfill that App. 399 Ill. 3d

In making determinations, its majority overlooks the distinc legislature tion the first-stage nonсapital has made between review 1(a)(2) capital postconviction requires cases. Section a 122— capital defendant in a case in to establish a substantial basis of actual (West 1(a)(2) during nocence stage first of review. 725 ILCS 5/122 — 2006). In stage noncapital postconviction petition, the first of a however, required higher a defendant is not to sustain the burden of presenting second-stage a substantial claim of innocence until the Edwards, hearing. People 197 Ill. 2d N.E.2d At stage only the first this court should be concerned whether petition “arguable fact,” allega lacks an not basis whether “upon meaningful prosecution tions reveal sufficient facts which a 366; pursued.” Hodges, Melvin could be Ill. see App. 2d at 19. pro clearly expected

While se is to set forth review, complete stage and detailed recitation at first factual “ ‘it must set forth some facts which can be corroborated ‍‌‌‌​‌​​​​​​‌‌‌​‌​​‌​‌‌‌‌​​​​‌​‌‌‌​​‌‌​‌‌​​​​​‌‌‌‍and are objective facts explanation why nature or contain some as to those ” Delton, are Hodges, quoting People absent.’ 234 Ill. 2d at

Ill. 2d 254-55 I would find petition defendant’s and the signed, sworn and notarized affidavit from Melvin in support attached just have important done that. It is also if to note that defendant’s pro petition review, se advanced stage lawyer to the second would be appointed and an opportunity presented to amended the affidavit and petition possibly cure the defect identified the majority.

In reaching the above I suggest conclusions do not mean to defendant’s claims ultimately prove would meritorious. That is not standard which we a first-stage petition. simply review I find pro defendant’s se proceed should be allowed to to the next stage respectfully of review. I dissent and would find the trial court in summarily dismissing erred postconviction petition. TRUST, Westbank, Plaintiff-Appellee, INLAND BANK AND f/k/a al., Defendants-Appellants. CARLTON KNIGHT et W. (5th Division) First District No. 1 — 09—0262 Opinion filed March

Case Details

Case Name: People v. Jones

Court Name: Appellate Court of Illinois

Date Published: Mar 5, 2010

Citation: 927 N.E.2d 710

Docket Number: 1-07-1190

Court Abbreviation: Ill. App. Ct.