People v. TatePeople v. Tate
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
A postconviction claim that trial counsel was ineffective in failing to call witnesses should not have been summarily dismissed where it was arguable that there had been both substandard professional performance and prejudice; and retention of private counsel at the first stage of postconviction did not call for a higher standard.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
¶ 1 Petitioner, Douglas Tate, filed a postconviction рetition in the circuit court of Cook County. The appellate court affirmed the circuit court‘s summary dismissal. No. 1-09-2379 (unpublished order under
I. BACKGROUND
¶ 2 Tate‘s conviction arose from the August 2001 murder of Maurice Wesley in Chicago.
¶ 3 Tate‘s bench trial, which began in June 2005, presented the testimony of four eyewitnesses who identified him as the shooter. Police found four spent shell casings at the scene of the crime, but no gun. The parties stipulated that the casings yielded no latent fingerprint impressions suitable for comparison. The medical examiner testified Wesley died of multiple gunshot wounds. His wounds were consistent with eyewitness accounts of the manner in which he was shot. The trial judge found Tate guilty of first degree murder and aggravated discharge of a firearm, and sentenced him to 50 years’ imprisonment. The appellate court affirmed. People v. Tate, No. 1-07-1094 (2008) (unpublished order under
¶ 4 In his postconviction petition, which was filed through private counsel, Tate alleged his trial counsel was ineffective for failing to call four witnesses, two of whom Tate claimed could establish an alibi. Tate also alleged actual innocence, based on the same four affidavits. Attached to the postconviction petition werе Tate‘s own affidavit; the affidavit of Tina Louise Tate (Tina), his girlfriend at the time of the shooting and, since July 2006, his wife; the affidavit of Tina‘s cousin and roommate, Marilyn Pass; and the affidavits of occurrence witnesses Charles Hebron and Shevell Wilson.
¶ 5 In his affidavit, Tate averred that he spent the night before the shooting with Tina and
¶ 6 The circuit court summarily dismissed Tate‘s postconviction petition without comment. The appellate court affirmed. No. 1-09-2379 (unpublished order under
II. ANALYSIS
¶ 7 The Post-Conviction Hearing Act (Act) (
¶ 8 In a noncapital case, a postconviction proceeding contains three stages. At the first stage, the circuit court must independently review the petition, taking the allegations as true, and determine whether ” ‘the petition is frivolous or is patently without merit.’ ” Hodges, 234 Ill. 2d at 10 (quoting
¶ 9 If the circuit court does not dismiss the petition аs “frivolous or *** patently without merit” (
¶ 10 In the case at bar, the State notes that Tate‘s petition was prepared by privately retained counsel, and argues that, as such, it must make a “substantial showing of a constitutional viоlation” (Edwards, 197 Ill. 2d at 246), as opposed to simply clearing the “frivolous or *** patently without merit” hurdle.
¶ 11 The State‘s argument is unpersuasive. Under the State‘s proposal, a first-stage postconviction petition prepared by an attorney would essentially be required to make a substantial showing of a constitutional violation, which is the standard at the second stage, after the State has entered the litigation. This second-stage standard is inappropriate at the first stage, where the State has no involvement (
¶ 12 Before we address Tate‘s contentions, we first dispose of the State‘s assertion thаt Tate‘s ineffective assistance claims are forfeited because he did not include them in his posttrial motion.
¶ 13 As noted, Tate alleged his trial counsel was ineffective for failing to call four witnesses whose affidavits were attached to his petition. Tate‘s ineffective-assistance claims thus are based on what triаl counsel should have done, not on what counsel did. An ineffective assistance claim based on what the record discloses counsel did, in fact, do is subject to the usual procedural default rule. People v. Erickson, 161 Ill. 2d 82, 88 (1994). “But a claim based on what ought to have been done may depend on proof of matters which could not have beеn included in the record precisely because of the allegedly deficient representation.” Id. Thus, this court has “repeatedly noted that a default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense.” People v. West, 187 Ill. 2d 418, 427 (1999).
¶ 14 In the case at bar, nоne of the four witnesses were called to testify. As a result of counsel‘s allegedly deficient representation, the contents of their affidavits could not have been included in the record. In this situation, forfeiture does not preclude Tate‘s claims that counsel was ineffective for failing to call these witnesses, even though they were not included in Tate‘s posttrial motion. Cf. Erickson, 161 Ill. 2d at 86-88 (declining to excuse
¶ 15 Before this court, Tate argues the circuit court erred in summarily dismissing his рostconviction petition because he presented an arguable claim of ineffective assistance of counsel. In other words, Tate claims that his petition was not frivolous or patently without merit and should have been advanced to the second stage and docketed for further consideration, and the State ordered to answer or otherwise respond. We agree.
¶ 16 Tate alleged his trial counsel was ineffective for failing to investigate and call the two alibi witnesses and two occurrence witnesses whose affidavits were attached to the petition. Tate also alleged he was actually innocent, bаsed on the same four affidavits.
¶ 17 In evaluating Tate‘s claim of ineffective assistance of counsel, the appellate court below expressly referred to the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In describing that test, the court stated: “To demonstrate ineffective assistance of trial counsel, the defendant must allege facts showing that counsel‘s performance was objectivеly unreasonable and resulted in prejudice to defendant.” (Emphases added.) No. 1-09-2379 (unpublished order under
¶ 18 Both the State and the appellate court correctly describe the Strickland test as it would be applied at the second stage of postconviction proceedings, where the petitioner must make a “substantial showing of a constitutional violation” (Hodges, 234 Ill. 2d at 11 n.3) in order to avoid dismissаl. At that stage, it is appropriate to require the petitioner to “demonstrate” or “prove” ineffective assistance by “showing” that counsel‘s performance was deficient and that it prejudiced the defense. However, as we have pointed out, this appeal is not from a second-stage dismissal; it is from a first-stage summary dismissal. A different, more lenient formulation applies at the first stage, as Hodges clearly indicated. There, we began by stating the Strickland standard as applied at the second stage: “To prevail on a claim of ineffective assistance under Strickland, a defendant must show both that counsel‘s performance ‘fell below an objective standard of reasonableness’ and thаt the deficient performance prejudiced the defense.” (Emphasis added.) Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). We next stated, by contrast: “At the first stage of postconviction proceedings under the Act, a petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel‘s performance fell below an objective standard of rеasonableness and (ii) it is arguable that the defendant was prejudiced.” (Emphases added.) Id.
¶ 19 This “arguable” Strickland test demonstrates that first-stage postconviction petitions alleging ineffective assistance of counsel are judged by a lower pleading standard than are such petitions at the second stage of the proceeding. The same is true for all other first-stage postconviction petitiоns, which may be summarily dismissed only if they have “no arguable basis either in law or in fact.” Id. at 11-12.
¶ 21 This argument is more appropriate to the second stage of postconviction proceedings, where both parties are represented by counsel, and where the petitioner‘s burden is to make a substantial showing of a constitutional violation. The State‘s strategy argument is inappropriate for the first stage, where the test is whether it is arguable that counsel‘s performance fell below an objective standard of reasonableness and whether it is arguable that the defendant was prejudiced.
¶ 22 We conclude that the affidavits attached to Tate‘s postconviction petition meet the “arguable” Strickland test for first-stage petitions. Hebron‘s affidavit is illustrative. In it, he averred that he was five feet from the victim at the time of the shooting, he witnessed the shooting, he had known Tate for years, and he was “sure that the shooter was not Douglas Tate.”
¶ 23 The State‘s main case against Tate consisted of thе testimony of the four eyewitnesses. No murder weapon was recovered. No fingerprints or DNA linked Tate to the crime. Nor was there a confession. Moreover, while the medical examiner opined that Wesley‘s wounds were consistent with eyewitness accounts of the manner in which he was shot, none of the medical examiner‘s testimony directly linked Tate to the shooting. As Tate correctly notes, this testimony corroborated that someone shot Wesley, but it shed no light on the key issue of the identity of the shooter. In this context, Hebron‘s testimony would have provided a first-person account of the incident which directly contradicted the prior stаtements of the State‘s eyewitnesses. It is at least arguable that Tate was prejudiced by the lack of this witness, and that defense counsel‘s performance, or lack thereof, fell below an arguable standard of reasonableness.
¶ 24 Tate‘s affidavits are sufficient for his petition to advance to the second stаge of postconviction proceedings. We reverse the judgment of the appellate court, which affirmed the circuit court‘s summary dismissal of Tate‘s petition, and we remand to the circuit court for further proceedings.
¶ 25 We express no opinion as to whether Tate‘s affidavits ultimately will support a substantial showing оf a constitutional violation. That is a second-stage issue.
¶ 26 In view of our holding on this issue, we need not address Tate‘s argument regarding his Illinois due process claim of actual innocence.
¶ 29 We reverse the judgment of the appellate court, which affirmed the judgment of the circuit court of Cook County. We remand to the circuit court for further proceedings.
¶ 30 Reversed and remanded.