People v. Wilborn

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Wilborn, 2011 IL App (1st) 092802

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption JOSEPH WILBORN, Defendant-Appellant.

District & No. First District, Sixth Division

Docket No. 1-09-2802

Opinion filed September 23, 2011

Modified upon denial

of rehearing February 24, 2012

Held In a prosecution for first-degree murder, defendant’s pro se

(Note: This syllabus postconviction petition alleging that his trial counsel was ineffective in

constitutes no part of failing to present the exculpatory testimony of his codefendant and that

the opinion of the court his appellate counsel was ineffective in failing to raise that issue on

but has been prepared appeal was properly dismissed as frivolous and patently without merit,

by the Reporter of the decision not to call codefendant was a product of sound trial strategy

Decisions for the based on the determination that calling codefendant would not be in

convenience of the defendant’s interest.

reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-22104 (02);

Review the Hon. John J. Moran, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier and Alan D. Goldberg, both of State Appellate

Appeal Defender’s Office, and David T. Harris, Assistant Public Defender, both

of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Douglas P. Harvath, and Sheilah C. O’Grady, Assistant State’s Attorneys,

of counsel), for the People.

Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,

with opinion.

Justice Palmer1 concurred in the judgment and opinion.

Justice Garcia specially concurred, with opinion.

OPINION

¶1 Following a jury trial, defendant Joseph Wilborn2 was convicted of first-degree murder.

720 ILCS 5/9-1(a)(1) (West 2000). After hearing aggravation and mitigation, defendant was

sentenced to 55 years in the Illinois Department of Corrections, 30 years for the first-degree

murder and 25 years as a firearm enhancement. Defendant’s conviction was affirmed on

direct appeal (People v. Wilbourn, No. 1-06-2088 (2008) (unpublished order under Supreme

Court Rule 23)). Defendant then filed a petition for postconviction relief in which he claimed

ineffective assistance of trial and appellate counsel. The trial court dismissed defendant’s

postconviction petition at the first stage of the proceedings, finding that: (1) the issues

presented in the petition are barred by the doctrine of res judicata; (2) defendant’s allegations

were conclusory and the petition lacked supporting documentation; and (3) the petition is

frivolous and patently without merit. Defendant now appeals, and we affirm. See People v.

Jones, 399 Ill. App. 3d 341, 359 (2010) (we may affirm the decision of the trial court on any

grounds substantiated by the record, regardless of the trial court’s reasoning).

1

Justice Robert Cahill originally sat on the panel of this appeal and participated in its

disposition. Justice Cahill passed away on December 4, 2011. Therefore, Justice Palmer will serve

in his stead and has read the briefs, record and the decision, which is the subject of the petition for

rehearing.

2

Defendant’s direct appeal records use the spelling “Wilbourn” for his last name. However,

his postconviction records, as well as his signature on his postconviction filings, use the spelling

“Wilborn” for his last name. In this decision we will use the spelling of defendant’s last name found

on his postconviction petition and records.

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¶2 I. BACKGROUND

¶3 Defendant and codefendant, Cedrick Jenkins, were arrested and charged by indictment

with the first-degree murder of Emmit Hill (victim). The trial court granted defendant’s

motion for severance and defendant’s jury trial commenced on June 12, 2006.

¶4 During opening statements, defense counsel told the jury that “you’ll see and hear from

Jenkins.” He stated that the victim had “problems” with defendant and Jenkins, and that

Jenkins “will talk to you about [their] relationship with [the victim].” He also told the jury

that the victim had approached defendant and Jenkins on the day of the shooting, accused

Jenkins of “being out and looking for him with [a] gun,” and told Jenkins that “I’ll have this

neighborhood flooded and you won’t get out.” Defense counsel further stated as follows:

“[Jenkins] will tell you what happened inside that gangway [where the victim was found

shot]. It won’t be the same story that you here from [another witness] but the facts of who

pursued, who wouldn’t let this go, who having seen what he regards as suspicious,

disregards it and it follows him through that gangway anyway ***.”

¶5 Following opening statements, the State called eight witnesses: (1) Frederick Sanders;

(2) Clarence Morgan; (3) David Parker; (4) Chicago police detective Mike Qualls; (5) Stacey

Daniels; (6) Chicago police officer Andre Bedford; (7) forensic investigator John Kaput; and

(8) Cook County medical examiner Dr. Valerie Arangelovich.

¶6 A. Frederick Sanders’s Testimony

¶7 Sanders testified that, at approximately 11:30 p.m. on July 28, 2004, he exited his

apartment building located on the 6200 block of South Michigan Avenue and walked to his

automobile where his friend, Randy Griffin, was waiting in the passenger seat. Sanders

testified that Griffin told him that he had heard “a couple of gunshots” while he was waiting.

Sanders then drove his vehicle westbound on 63rd Street to Wabash. Sanders testified that

when he turned north, he observed a person he knew by the nickname of “Moochie,” whose

real name is Samuel Richards, standing over a body lying in a gangway located near the

northeast corner of 63rd Street and Wabash. Sanders testified that he then stopped his

vehicle, exited it, and telephoned the police with his cellular telephone. While he waited for

the police to arrive, he did not observe anyone in the area with a gun, nor did he observe

Richards remove a handgun from the body. He did not observe defendant or Jenkins in the

area.

¶8 Sanders also testified that he was not friends with defendant, the victim or Jenkins. He

testified that he knew defendant because he observed him “being around the [apartment]

building.” In addition, he testified that he “knew [the victim] from the neighborhood” and

knew Jenkins because Jenkins previously resided at the apartment building.

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¶9 B. Clarence Morgan’s Testimony

¶ 10 Morgan testified that on July 28, 2004, at 11 p.m., he was standing on the South

Michigan Avenue side of Sanders’s apartment building, drinking liquor with the victim, who

was a friend of his, and with “other people,” which included Richards and a man named

David Parker. He testified that defendant, Jenkins, and a man known as “Chub” were

standing “in front” of the apartment building. He testified that he had known defendant and

Jenkins for approximately 10 years because, at one time, they both lived in the same

apartment building as him.

¶ 11 Morgan testified that “Chub” handed a hooded sweatshirt to Jenkins and the victim then

made a “smart comment” to “Chub.” Morgan testified that the victim said to “Chub,” “was

he on bullshit,” which he understood to mean, he was “up to no good at the time.” Morgan

testified that he did not hear the victim threaten defendant or Jenkins at any time on the night

of the shooting. Morgan further testified that prior to the shooting he was unaware of any

animosity between defendant, Jenkins, and the victim.

¶ 12 Morgan also testified that, after the victim made the comment to “Chub,” he observed

defendant and Jenkins walk in a westerly direction across South Michigan Avenue and

through a gangway toward Wabash. He testified that the victim followed them into the

gangway, but then he lost sight of the victim. He testified that he did not observe a handgun

on the victim. Morgan testified that, approximately one minute later, he heard five gunshots

coming from the direction of the gangway. When the victim did not return, Morgan decided

to walk to Wabash to determine if the victim had arrived at the other side of the gangway.

He testified that he walked south to 63rd Street then west to Wabash to avoid walking

through the gangway. When he arrived at the corner of 63rd Street and Wabash, he observed

the victim lying on the ground in the gangway. He also observed several people, including

Richards and Parker, standing near the victim’s body, but he did not observe defendant or

Jenkins in the area.

¶ 13 On cross-examination, Morgan testified that defendant, Jenkins, and “Chub” were

members of the “Insane Gangster Disciples” gang, while he was a member of the “Black

Gangster Disciples,” a rival gang. He testified that his gang “controlled” Sanders’s apartment

building, but after a series of arrests of Black Gangster Disciple members, defendant and

Jenkins started “hanging around” the apartment building. He further testified that the victim

had a confrontation with defendant, Jenkins, and “Chub” two weeks before the shooting

because they were trying to take over the drug sales at the building.

¶ 14 C. David Parker’s Testimony

¶ 15 Parker testified that he was a friend of the victim and that Jenkins had a “beef” with the

victim because the victim had been discussing Jenkins and Jenkins’s “parent” in the presence

of others. He testified that two days before the shooting, defendant asked Parker to tell the

victim to stop talking about Jenkins.

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¶ 16 Parker testified that at 11 p.m. on the evening of July 28, 2004, he was visiting with the

victim, Richards, Morgan, and a man by the name of Keith Wright. He testified that they

were drinking liquor and standing on the South Michigan Avenue side of Sanders’s

apartment building. He testified that defendant, Jenkins and “Chub” walked passed them.

Parker observed “Chub” remove his hooded sweatshirt and hand it to Jenkins. Parker

testified that he thought it was unusual for a person to wear a hooded sweatshirt because the

evening was “cool, but it wasn’t cool enough for a [hooded sweatshirt].” Parker denied that

he heard the victim say anything to defendant, Jenkins or “Chub” at that time.

¶ 17 Parker testified that two people began arguing across the street from the apartment

building, and he walked toward the couple to stop the argument. He testified that he then

heard seven gunshots and observed the gangway “lighting up from sparks.” Parker testified

that he noticed that the victim was no longer in the area and Morgan told him that “I think

[the victim] just followed [defendant] and [Jenkins] to the gas station.” Parker testified that

he told the group that they should run to 63rd and Wabash to find out if anyone had been

shot. He testified that when they arrived at Wabash, he observed the victim on the ground

in the gangway. Parker testified that he and Morgan then ran to the victim’s residence to

inform his family of the shooting. He testified that he did not observe a gun on the victim that

evening. Parker testified that Richards searched the victim’s pockets to ensure there were no

drugs on the victim.

¶ 18 D. Chicago Police Detective Mike Qualls’s Testimony

¶ 19 Detective Qualls testified that when he arrived at the scene at approximately 12:30 a.m.,

he did not locate a weapon near the body. He testified that he spoke with Parker the

following day, who told him that just before he heard the gunshots, he heard the victim ask

Jenkins, “What you all bitches doing with those hoodies?” He testified that after he and other

officers interviewed witnesses, an investigative alert was issued for defendant, Jenkins, and

“Chub.” Detective Qualls testified that he and other detectives were initially unable to locate

the three men.

¶ 20 E. Stacey Daniels’s Testimony

¶ 21 Daniels testified that he had been a friend of defendant’s for more than four years. He

testified that two weeks after the shooting, on August 12, 2004, he was with defendant at a

mutual friend’s home when defendant told Daniels that he “got into some problems” and that

he was in “some serious shit.” Daniels testified that defendant did not immediately explain

this remark. Daniels, defendant and Jenkins then departed from their friend’s home and

walked to Daniels’s apartment, which he shared with a man named Xavier Woolard. Daniels

testified that when they arrived at his apartment, Woolard was in the apartment along with

his girlfriend, named LaKiesha.

¶ 22 Daniels testified that he was standing on a rear porch of his apartment with defendant and

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Jenkins when defendant explained to him that he “got into it with some dude,” that there was

a shooting, and that he “had to give it to [the] n***er.” According to Daniels, defendant

explained that he was walking through a gangway and observed that the “dude was following

him.” He told Daniels that he “didn’t know what dude had or something and he thought dude

was fittin’ to do something to him” and that defendant said that he “turned around busting,”

which Daniels understood to mean shooting. Daniels testified that defendant then told him

he needed to obtain money to leave town and that he might try to “hit a lick or something like

that,” which Daniels understood to mean “come up on some money” or to commit a robbery.

¶ 23 After his conversation with defendant, Daniels testified that he went to a party with

Woolard, while defendant, Jenkins, and LaKeisha stayed at Daniels’s and Woolard’s

apartment. Woolard was arrested at the party for an unrelated battery offense and Daniels

then returned to his apartment.

¶ 24 F. Chicago Police Officer Andre Bedford’s Testimony

¶ 25 Officer Bedford testified that he arrested Woolard at the party. Following the arrest,

Woolard told him that there were two people, nicknamed “Little Joe and Ced,” who were at

his apartment and were wanted on murder charges. Woolard then consented to a search of

his apartment. Officer Bedford performed a police computer search of the nicknames and

discovered that “Little Joe” was a nickname for defendant and that “Ced” was a nickname

for Jenkins. Officer Bedford observed that there was an investigative alert for defendant and

Jenkins in relation to the July 28 shooting.

¶ 26 Officer Bedford testified that, at 5 a.m. the following day, he and two other police

officers conducted a search of Daniels’s and Woolard’s apartment, where they found four

individuals, defendant, Jenkins, Daniels and LaKeisha. During the search, the officers found

a 9-millimeter Glock brand handgun, loaded with two bullets, and an additional 28 bullets

in Woolard’s bedroom. The officers also searched defendant, who had one Wolf brand Luger

bullet and four “hollow point” Luger bullets in his pocket; and Jenkins, who had a 9-

millimeter High Point handgun, loaded with seven bullets, on his person.

¶ 27 G. Forensic Investigator Kaput’s Testimony

¶ 28 Forensic investigator Kaput testified that he arrived at the crime scene at approximately

10 minutes after midnight on July 29, 2004. He testified that he conducted a walk-through

of the crime scene, where he found five fired Wolf brand 9-millimeter Luger cartridge

casings and a 9-millimeter fired bullet. Kaput placed the cartridge casings and fired bullet

into individual envelopes and submitted the envelopes to the Illinois State Police crime lab.

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¶ 29 H. Assistant Cook County Medical Examiner

Dr. Valerie Arangelovich’s Testimony

¶ 30 Dr. Arangelovich testified that she performed an autopsy on the victim. She observed that

the victim had seven bullet entrance wounds and five exit wounds. She recovered two bullets

from the victim’s body and a third bullet “hanging loose in his clothes.” Dr. Arangelovich

placed the bullets into individual envelopes and submitted the envelopes to the Illinois State

Police crime lab. She concluded that the victim died from multiple gunshot wounds.

¶ 31 I. Stipulations

¶ 32 The parties stipulated that four of the five fired cartridge casings Kaput found at the

crime scene were fired from the same handgun, but not by either the Glock handgun that was

found in Woolard’s bedroom, or the High Point handgun, which was found on Jenkins,

during the search of Woolard’s apartment. However, the fifth fired cartridge casing found

at the crime scene was fired from the Glock handgun.

¶ 33 The parties further stipulated to the following: (1) the fired bullet found at the crime

scene by Kaput was not fired by the High Point handgun, but the forensic test on the bullet

was inconclusive as to whether the bullet was fired from the Glock handgun; (2) the three

bullets recovered by Dr. Arangelovich were fired from the same handgun, but not from the

Glock or High Point handgun; and (3) the fired bullet recovered by Kaput from the crime

scene was not fired by the same handgun as the three bullets recovered by Dr. Arangelovich

from the victim’s body and clothes.

¶ 34 After the State rested, defense counsel moved for a directed verdict, which was denied.

During a recess before defense counsel presented the defense, the following colloquy took

place:

“THE COURT: [Defendant], your attorney informed me that he has your co-

defendant, [Jenkins], present. And he is available. He has been interviewed. Based on

that interview, your attorney has decided that he thinks it is to your best interest not to

call this witness. He also explained to me [that] he discussed that with you. Is that

correct?

DEFENDANT: Yes, sir.

THE COURT: Do you agree with that?

DEFENDANT: Yes, sir.”

¶ 35 The defense did not call Jenkins as a witness, and defendant did not testify on his own

behalf. Defense counsel called one witness, Sergeant Cherry3, who testified that he responded

to the crime scene at midnight on July 28, 2004. He testified that when he arrived at the

3

Sergeant Cherry’s first name does not appear in the record.

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scene two men flagged him down. He observed two other men kneeling next to the victim

and that approximately 60 other people were in the area near the victim. He testified that he

asked several people, including Richards, to stay to speak with detectives. He testified that

when the detectives arrived, Richards had left the area.

¶ 36 As noted, the jury found defendant guilty of first-degree murder. The trial court sentenced

defendant to 30 years in the Illinois Department of Corrections plus 25 years for personally

discharging a firearm. Defendant appealed his conviction, which did not include a claim of

ineffective assistance of counsel. Defendant’s conviction was affirmed on direct appeal.

¶ 37 J. Defendant’s Pro Se Postconviction Petition

¶ 38 On June 16, 2009, defendant filed a pro se petition for postconviction relief, in which he

argued, inter alia, that his trial counsel was ineffective for failing to present the exculpatory

testimony of Jenkins, which would have fulfilled a promise made to the jury in defense

counsel’s opening statements that Jenkins would “tell [them] what happened inside that

gangway.” Defendant also claims that appellate counsel was ineffective for not raising the

issue on direct appeal.

¶ 39 In support of his petition, defendant attached a signed affidavit from Jenkins. Above

Jenkins’s signature is written: “Pursuant to *** 735 ILCS 5/1-109, I declare, under penalty

of perjury, that everything contained herein is true and accurate to the best of my knowledge

and belief.” The affidavit is not notarized. In his petition, defendant alleged that Jenkins’s

affidavit is “not notarized [because the] Menard Correctional Center law library refused to

do so.”

¶ 40 Jenkins stated in his affidavit that he was willing to testify at defendant’s trial and that

he would have testified that the victim followed him and defendant into the gangway and

then said to them, “G.K.D. yall some bitches” with his hand in his pocket. Jenkins stated that

he told the victim to “go about his business,” and turned to “catch up” with defendant. He

stated that the victim continued to follow them and that the victim was “talking crazy with

his hand in his pocket.”

¶ 41 Jenkins stated that he turned around “a second time” and told the victim “to go about his

business.” Jenkins stated that the victim then “acted like he was about to pull a gun out of

his pocket.” Jenkins stated that he then “pulled out” a handgun and shot at the victim once.

He stated that defendant did not know that he was armed and fled when he heard the shot.

Jenkins stated that he shot the victim two more times and then his handgun jammed. He then

“pulled out” a second handgun and fired four more shots at the victim. Jenkins stated that he

was arrested with one of the handguns that he used in the shooting and that he told police he

had discarded the second handgun. He also stated that he told an arresting police officer that

he alone shot the victim.

¶ 42 A hearing was held on defendant’s petition. On September 10, 2009, the trial court

dismissed defendant’s postconviction petition in a written order, finding that: (1) the issues

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raised in the petition were also raised on direct appeal and therefore barred by the doctrine

of res judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked

required supporting documents “such as affidavit or other sworn statements”; and (3)

defendant’s petition was frivolous and patently without merit.

¶ 43 This appeal follows.

¶ 44 II. ANALYSIS

¶ 45 Although defendant’s postconviction petition raises 15 claims of ineffective assistance

of trial and appellate counsel, we consider only those claims that defendant has raised in this

appeal. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008).

¶ 46 On appeal, defendant claims that the trial court erred in dismissing his postconviction

petition at the first stage because: (1) he raised the “non-frivolous constitutional claim[s]”

that trial counsel was ineffective for “making an unfulfilled promise to the jury to present

exonerating testimony of co-defendant Jenkins,” and that appellate counsel was ineffective

for failing to raise this issue on direct appeal; and (2) the trial court “overlook[ed] Jenkins’s

affidavit,” which supported defendant’s petition.

¶ 47 A. Standard of Review

¶ 48 A trial court’s dismissal of a postconviction petition at the first stage is reviewed de novo.

People v. Hodges, 234 Ill. 2d 1, 9 (2009); People v. Torres, 228 Ill. 2d 382, 394 (2008);

People v. Edwards, 197 Ill. 2d 239, 247 (2001); People v. Coleman, 183 Ill. 2d 366, 388-89

(1998). “A de novo review entails performing the same analysis a trial court would perform”;

in other words, we accept all well-pleaded facts in the complaint as true while disregarding

legal or factual conclusions unsupported by allegations of fact. Khan v. BDO Seidman, LLP,

408 Ill. App. 3d 564, 578 (2011).

¶ 49 B. Post-Conviction Hearing Act

¶ 50 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) provides that

a defendant may challenge his or her conviction or sentence for violations of federal or state

constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v.

Whitfield, 217 Ill. 2d 177, 183 (2005)). In a postconviction proceeding, a petitioner is not

entitled to an evidentiary hearing as a matter of right. People v. Simms, 192 Ill. 2d 348, 359

(2000). To be entitled to postconviction relief, a defendant bears the burden of showing that

he or she suffered a substantial deprivation of his or her federal or state constitutional rights

in the proceedings. 725 ILCS 5/122-1(a) (West 2008); Pendleton, 223 Ill. 2d at 471 (citing

Whitfield, 217 Ill. 2d at 183); People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Lacy, 407

Ill. App. 3d 442, 455 (2010).

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¶ 51 1. A Summary Dismissal Is Proper When Barred by Res Judicata or Forfeiture

¶ 52 A proceeding under the Act is a collateral proceeding, not an appeal from the underlying

judgment. People v. Coleman, 206 Ill. 2d 261, 277 (2002) (citing People v. Williams, 186 Ill.

2d 55, 62 (1999)); Evans, 186 Ill. 2d at 89. The purpose of the proceeding is to allow inquiry

into constitutional issues relating to the conviction or sentence that were not, and could not

have been, determined on direct appeal. Whitfield, 217 Ill. 2d at 183; Coleman, 206 Ill. 2d

at 277. Thus, all issues decided on direct appeal are barred by the doctrine of res judicata,

and all issues that could have been raised in the original proceeding, but were not, are

procedurally forfeited. People v. Taylor, 237 Ill. 2d 356, 372 (2010).

¶ 53 2. A Summary Dismissal Is Proper When a Petition

Violates Section 122-2 of the Act

¶ 54 The petition cannot consist of nonfactual and nonspecific assertions that merely amount

to conclusions that errors occurred at trial. People v. Simms, 192 Ill. 2d 348, 359 (2000)

(citing People v. Kitchen, 189 Ill. 2d 424, 433 (1999)). Rather, a petition filed under the Act

must “clearly set forth the respects in which petitioner’s constitutional rights were violated.”

725 ILCS 5/122-2 (West 2008).

¶ 55 While a pro se postconviction petition is not expected to set forth a complete and detailed

factual recitation, the petition “ ‘must set forth some facts which can be corroborated and are

objective in nature or contain some explanation as to why those facts are absent.’ ” Hodges,

234 Ill. 2d at 10 (quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)); 725 ILCS 5/122-

2 (West 2008) (a petition must have attached “affidavits, records, or other evidence

supporting its allegations or shall state why the same are not attached”). The purpose of the

“affidavits, records, or other evidence” requirement in section 122-2 of the Act (725 ILCS

5/122-2 (West 2008)) is to establish that a petition’s allegations are capable of “ ‘objective

or independent corroboration.’ ” Delton, 227 Ill. 2d at 254 (quoting People v. Hall, 217 Ill.

2d 324, 333 (2005), citing People v. Collins, 202 Ill. 2d 59, 67 (2002)). Thus, a trial court

may summarily dismiss a petition if the defendant fails to attach the required “affidavits,

records, or other evidence” or fails to explain their absence from his or her postconviction

petition. Delton, 227 Ill. 2d at 255 (“failure to either attach the necessary ‘affidavits, records,

or other evidence’ or explain their absence is ‘fatal’ to a post-conviction petition [citation]

and by itself justifies the petition’s summary dismissal” (internal quotation marks omitted)

(quoting Collins, 202 Ill. 2d at 66, citing People v. Coleman, 183 Ill. 2d 366, 380 (1998),

quoting People v. Jennings, 411 Ill. 21, 26 (1952))).

¶ 56 3. Three Stage Process for Adjudicating a Postconviction Petition

¶ 57 In noncapital cases, the Act provides a three-stage process for adjudicating a petition for

postconviction relief. 725 ILCS 5/122-1 et seq. (West 2008); Pendleton, 223 Ill. 2d at 471-

72. At the first stage, the trial court examines the petition independently and without any

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further pleadings from the defendant or any motions or responsive pleadings from the State.

People v. Brown, 236 Ill. 2d 175, 184 (2010) (citing People v. Gaultney, 174 Ill. 2d 410, 418

(1996)). The allegations in the petition, taken as true and liberally construed, need to present

the “ ‘gist of a constitutional claim.’ ” Delton, 227 Ill. 2d at 254 (quoting Gaultney, 174 Ill.

2d at 418); People v. Porter, 122 Ill. 2d 64, 74 (1988) (in order to avoid dismissal, defendant

need only present the “gist” of a constitutional claim that would provide relief under the Act).

This “gist” standard is a low threshold which requires the defendant to present only a limited

amount of detail, not the claim in its entirety or legal argument or citation to legal authority.

Hodges, 234 Ill. 2d at 9 (“[b]ecause most petitions are drafted at this stage by defendants

with little legal knowledge or training, this court views the threshold for survival as low”).

¶ 58 In considering the petition at the first stage, the trial court may examine “the trial record,

the court file of the proceeding in which the defendant was convicted, any action taken by

an appellate court in such a proceeding, any transcripts of such proceedings, and affidavits

or records attached to the petition.” People v. Diehl, 335 Ill. App. 3d 693, 700 (2002) (citing

725 ILCS 5/122-2.1(c) (West 1998)). The trial court may summarily dismiss the petition if

the allegations in the petition are positively rebutted in the record. See Coleman, 183 Ill. 2d

at 381-82 (“this court has consistently upheld the dismissal of a post-conviction petition

when the allegations are contradicted by the record from the original trial proceedings”

(citing People v. Gaines, 105 Ill. 2d 79, 91-92 (1984), and People v. Arbuckle, 42 Ill. 2d 177,

182 (1969)); see, e.g., People v. Williams, 364 Ill. App. 3d 1017, 1025 (2006) (concluding

that defendant failed to state the gist of a constitutional claim that he was unfit to plead guilty

when the record “clearly show[ed] that defendant understood the nature and purpose of the

proceedings,” informed the trial court that he understood the charges against him, did not

exhibit “irrational” behavior in court, and actively participated in the proceedings and

conferred with trial counsel).

¶ 59 4. A Summary Dismissal Is Proper When Petition Is Considered

“Frivolous or Patently Without Merit”

¶ 60 The trial court must dismiss the petition in a written order if the court finds that the

petition is “frivolous or *** patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2008).

Neither “frivolous” nor “patently without merit” is defined in the Act. However, the Illinois

Supreme Court has held that a postconviction petition is considered frivolous or patently

without merit only if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d

at 16. A petition lacking an arguable basis in law or fact is one “based on an indisputably

meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill. 2d at 16. A claim

completely contradicted by the record is an example of an indisputably meritless legal theory.

Hodges, 234 Ill. 2d at 16. Fanciful factual allegations include those that are fantastic or

delusional. Hodges, 234 Ill. 2d at 17.

¶ 61 If the trial court does not dismiss the petition as frivolous or patently without merit, then

the petition advances to the second stage. If the petition advances to the second stage, the

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trial court may appoint counsel for an indigent defendant and counsel will have an

opportunity to amend the petition. 725 ILCS 5/122-4 (West 2008). The State can file a

motion to dismiss or an answer to the petition and the trial court must then determine

whether the petition and any accompanying documentation make a substantial showing of

a constitutional violation. 725 ILCS 5/122-5 (West 2008); Edwards, 197 Ill. 2d at 246 (citing

Coleman, 183 Ill. 2d at 381). If no such showing is made, the petition is dismissed. If,

however, a substantial showing of a constitutional violation is made, the petition is advanced

to the third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6

(West 2008); Edwards, 197 Ill. 2d at 246.

¶ 62 In the case at bar, the trial court dismissed defendant’s postconviction petition at the first

stage and provided in its written order three reasons for the dismissal: (1) the issues raised

in the petition were also raised on direct appeal and therefore barred by the doctrine of res

judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked

required supporting documents such as affidavits or other sworn statements as required under

section 122-2 of the Act; and (3) defendant’s petition was frivolous and patently without

merit. However, the trial court did not specify which issues were dismissed for which reason.

Thus, we consider each of the trial court’s reasons as it applies to defendant’s claims on

appeal.

¶ 63 C. Whether Defendant’s Claims Are Barred by Res Judicata

¶ 64 First, defendant claims that the trial court erred in summarily dismissing his

postconviction petition when it found that the issues raised in the petition were barred by res

judicata.

¶ 65 In the context of a postconviction petition, res judicata bars consideration of claims that

were previously raised and decided on direct appeal. People v. Blair, 215 Ill. 2d 427, 443

(2005). Defendant’s claims of ineffective assistance of counsel were not raised on direct

appeal and, thus, cannot be barred by res judicata. Accordingly, res judicata does not bar

consideration of defendant’s claims of ineffective assistance of trial and appellate counsel.

¶ 66 D. Whether Defendant’s Petition “Lacked Supporting Documents”

¶ 67 Second, defendant claims that the trial court erred in finding that the petition “lack[ed]

supporting documentation.” The pleading requirements of the Act are found in section 122-2

(see Hodges, 234 Ill. 2d at 9), which requires that the petition “clearly set forth the respects

in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2008).

Section 122-2 also requires that “[t]he petition shall have attached thereto affidavits, records,

or other evidence supporting its allegations or shall state why the same are not attached.” 725

ILCS 5/122-2 (West 2008). As noted, defendant attached Jenkins’s affidavit, which was

signed but not notarized.

¶ 68 The State argues that although defendant attached Jenkins’s affidavit to the petition, the

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affidavit is not valid because it is not notarized. Thus, the State concludes, the trial court was

not required to consider Jenkins’s affidavit and the court properly dismissed defendant’s

postconviction petition because it lacked supporting documentation. We disagree.

¶ 69 To be considered a valid affidavit, our supreme court has held that an affidavit must be

notarized unless otherwise provided for by a specific supreme court rule or statutory

authorization. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 496 (2002). In

Roth, our supreme court explained that “ ‘[a]n affidavit is simply a declaration, on oath, in

writing, sworn to *** before some person who has authority under the law to administer

oaths.’ ” Roth, 202 Ill. 2d at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). Thus, the

supreme court concluded, statements in writing that have not been sworn to before an

authorized person cannot be considered as affidavits. Roth, 202 Ill. 2d at 494.

¶ 70 In determining the validity of Jenkins’s proposed affidavit, we find instructive a case

from the Second District of the Appellate Court, People v. Niezgoda, 337 Ill. App. 3d 593

(2003). In Niezgoda, the defendant filed a pro se postconviction petition alleging ineffective

assistance of counsel and attached his own affidavit and section 122-2 supporting affidavits

from three other potential witnesses. Niezgoda, 337 Ill. App. 3d at 595. None of the affidavits

were notarized. Niezgoda, 337 Ill. App. 3d at 595. The Second District, following Roth,

found that affidavits filed pursuant to the Act must be notarized to be valid. Niezgoda, 337

Ill. App. 3d at 597. The Niezgoda court then found that “the affidavits the defendant filed had

no legal effect” because the affidavits were not notarized or sworn before a person who had

the authority to administer oaths, and, as a result, the trial court properly dismissed the

petition. Niezgoda, 337 Ill. App. 3d at 597 (citing People v. Johnson, 183 Ill. 2d 176, 191

(1998)).

¶ 71 Here, similar to the defendant’s petition in Niezgoda, Jenkins’s affidavit is not notarized

and, thus, not a valid affidavit on its face. However, in Niezgoda, the defendant appealed

from a second-stage dismissal of his petition. To support a claim of failure to present a

witness, a defendant must tender a valid affidavit from the individual who would have

testified. People v. Enis, 194 Ill. 2d 361, 380 (2000) (citing People v. Johnson, 183 Ill. 2d

176, 192 (1998), and People v. Thompkins, 161 Ill. 2d 148, 163 (1994)). Without a valid

affidavit, a reviewing court cannot determine whether the proposed witness could have

provided information or testimony favorable to the defendant. Johnson, 183 Ill. 2d at 192

(citing People v. Guest, 166 Ill. 2d 381, 402 (1995), and People v. Ashford, 121 Ill. 2d 55,

77 (1988)). After this case was initially filed, the Second District decided People v. Carr, 407

Ill. App. 3d 513 (2011). In Carr, the defendant appealed from the summary dismissal of his

pro se postconviction petition at the first stage. Carr, 407 Ill. App. 3d at 515. Relying on

Niezgoda, the Second District held that because the defendant’s section 122-1 affidavit was

not notarized, it was not valid. Carr, 407 Ill. App. 3d at 515. The court also declined to

distinguish affidavits filed pursuant to section 122-1 from the section 122-2 affidavit at issue

in Niezgoda because Niezgoda held that the notarization requirement for affidavits applies

to the entire Act. Carr, 407 Ill. App. 3d at 515. Accordingly, the court did not consider the

differing purposes of the two affidavit requirements. The court found that because the

defendant’s section 122-1 affidavit was not notarized, it was not valid and he was not entitled

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to relief. Carr, 407 Ill. App. 3d at 516.

¶ 72 Recently, in People v. Henderson, 2011 IL App (1st) 090923, Justice Lavin authored an

opinion analyzing the case based on a defendant’s failure to obtain notarization of a verifying

affidavit where defendant was imprisoned and there was no guarantee that a defendant would

be afforded the services of a notary public. Henderson, 2011 IL App (1st) 090923, ¶ 36. The

court in Henderson found that “the purposes of the Act and section 122-2.1 would be

hindered by preventing petitions which are neither frivolous nor patently without merit from

proceeding to the second stage due to the technicality at issue.” Henderson, 2011 IL App

(1st), 090923, ¶ 35. The Henderson court further found that “[a]t the second stage, the State

will have the opportunity to object to the lack of notarization” and that “appointed counsel

can assist in arranging for the notarization of the verification affidavit.” Henderson, 2011 IL

App (1st), 090923, ¶ 35. Henderson declined to follow Carr as we do.

¶ 73 E. Whether Defendant’s Petition Is Frivolous and Patently Without Merit

¶ 74 Third, defendant claims that the trial court erred when it summarily dismissed his petition

as frivolous and patently without merit. Specifically, defendant argues that he presented a

non-frivolous constitutional claim that his trial counsel was ineffective for failing to fulfill

his promise to the jury to present Jenkins’s exculpatory testimony and that appellate counsel

was ineffective for failing to raise the issue on appeal.

¶ 75 A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. The Illinois Supreme Court has held that, to

determine whether a defendant was denied his or her right to effective assistance of counsel,

an appellate court must apply the two-prong test set forth in Strickland v. Washington, 466

U.S. 668 (1984), which the Illinois Supreme Court adopted in People v. Albanese, 102 Ill.

2d 54 (1984).

¶ 76 Under Strickland, a defendant must prove both that: (1) his attorney’s actions or inactions

constituted error(s) so serious as to fall below an objective standard of reasonableness “under

prevailing professional norms” (People v. Colon, 225 Ill. 2d 125, 135 (2007); People v.

Evans, 209 Ill. 2d 194, 220 (2004)); and (2) defense counsel’s deficient performance

prejudiced the defendant. People v. Hodges, 234 Ill. 2d at 17 (citing Strickland, 466 U.S. at

687-88). “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 reasonableness and (ii) it is arguable that the

defendant was prejudiced.” Hodges, 234 Ill. 2d at 17. The failure to satisfy either the

deficiency prong or the prejudice prong of the Strickland test precludes a finding of

ineffective assistance of counsel. Strickland, 466 U.S. at 697; People v. Patterson, 192 Ill.

2d 93, 107 (2000).

¶ 77 Ineffective assistance of appellate counsel is determined under the same standard as a

claim of ineffective assistance of trial counsel. People v. Edwards, 195 Ill. 2d 142, 163

(2001) (citing People v. West, 187 Ill. 2d 418, 435 (1999)). Appellate counsel is not required

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to raise every conceivable issue on appeal, and it is not incompetence for counsel to refrain

from raising issues that counsel believes are without merit. Edwards, 195 Ill. 2d at 163-64

(citing People v. Johnson, 154 Ill. 2d 227, 236 (1993)). Accordingly, unless the underlying

issue has merit, there is no prejudice from appellate counsel’s failure to raise an issue on

appeal. Edwards, 195 Ill. 2d at 164 (citing People v. Childress, 191 Ill. 2d 168, 175 (2000)).

¶ 78 Defendant claims that it is arguable that trial counsel’s performance fell below an

objective standard of reasonableness because counsel promised the jury during his opening

statement that Jenkins would provide exculpatory testimony on defendant’s behalf, and then

failed to provide the promised testimony during trial.

¶ 79 A defendant is entitled to reasonable, not perfect, representation. People v. Fuller, 205

Ill. 2d 308, 330 (2002) (citing People v. Palmer, 162 Ill. 2d 465, 476 (1994)); West, 187 Ill.

2d at 432 (citing People v. Stewart, 104 Ill. 2d 463, 492 (1984)). Decisions concerning which

witnesses to call at trial and what evidence to present on defendant’s behalf ultimately rest

with trial counsel. People v. Munson, 206 Ill. 2d 104, 139-40 (2002); West, 187 Ill. 2d at 432

(citing People v. Ramey, 152 Ill. 2d 41, 53-55 (1992)). It is well established that these types

of decisions are considered matters of trial strategy and are generally immune from claims

of ineffective assistance of counsel. People v. Smith, 195 Ill. 2d 179, 188 (2000); West, 187

Ill. 2d at 432. “In recognition of the variety of factors that go into any determination of trial

strategy, *** claims of ineffective assistance of counsel must be judged on a circumstance-

specific basis, viewed not in hindsight, but from the time of counsel’s conduct, and with

great deference accorded counsel’s decisions on review.” People v. Fuller, 205 Ill. 2d 308,

330-31 (2002) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), and Strickland, 466

U.S. at 689). Thus, “[m]istakes in trial strategy or tactics or in judgment do not of themselves

render the representation incompetent.” (Internal quotation marks omitted.) People v.

Hillenbrand, 121 Ill. 2d 537, 548 (1988).

¶ 80 A defense counsel’s failure to provide testimony promised during opening statements is

not ineffective assistance of counsel per se. People v. Manning, 334 Ill. App. 3d 882, 892

(2002). We agree with defendant that counsel’s assistance may be ineffective if he or she

promises that a particular witness will testify during opening statements, but does not provide

the promised testimony during trial. See generally People v. Briones, 352 Ill. App. 3d 913

(2009). However, we have also recognized that counsel’s decision to abandon a trial strategy

during trial may be reasonable under the circumstances and that the decision not to provide

promised testimony may be warranted by unexpected events. People v. Ligon, 365 Ill. App.

3d 109, 120 (2006). In either case, a defendant must overcome a strong presumption that the

challenged action or inaction of defense counsel may have been the product of sound trial

strategy. Evans, 186 Ill. 2d at 93; People v. Coleman, 183 Ill. 2d 366, 397 (1998); People v.

Griffin, 178 Ill. 2d 65, 73-74 (1997); see also People v. Gacy, 125 Ill. 2d 117, 126 (1988)

(“The burden of *** overcoming the presumption that an attorney’s decision is the product

of ‘sound trial strategy’ rests upon the defendant ***.”).

¶ 81 A defendant may overcome the strong presumption that defense counsel’s choice of

strategy was “sound if counsel’s decision appears so irrational and unreasonable that no

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reasonably effective defense attorney, facing similar circumstances, would pursue such a

strategy.” (Emphasis in original.) People v. King, 316 Ill. App. 3d 901, 916 (2000) (citing

People v. Faulkner, 292 Ill. App. 3d 391, 394 (1997)). “[Sound trial strategy] embraces the

use of established rules of evidence and procedure to avoid, when possible, the admission

of incriminating statements, harmful opinions, and prejudicial facts.” People v. Moore, 279

Ill. App. 3d 152, 159 (1996).

¶ 82 Here, we cannot say that defense counsel’s decision not to call Jenkins as a witness was

outside the realm of sound trial strategy. The record shows that defense counsel contemplated

calling Jenkins as a witness. However, after interviewing him, defense counsel determined

that Jenkins’s testimony would not be in defendant’s “best interest.” Defense counsel then

informed defendant and the trial judge of his decision not to call Jenkins as a witness. The

trial court discussed the matter with defendant and his counsel in open court and defendant

informed the court that he agreed with his counsel’s decision. Based on the record, defense

counsel’s decision to not call Jenkins as a witness appears to be the product of sound trial

strategy, a strategy that the defendant agreed with. See People v. Flores, 128 Ill. 2d 66, 106

(1989) (“defense counsel need not call a witness if he reasonably believes that under the

circumstances the individual’s testimony is unreliable or would likely have been harmful to

the defendant”).

¶ 83 Considering Jenkins’ affidavit in addition to the record, we still conclude that defendant

did not overcome the strong presumption that defense counsel’s decision was the product of

sound trial strategy at the time that he interviewed Jenkins.

¶ 84 The record also shows that two of the State’s witnesses, Morgan and Parker, testified that

there was animosity between defendant and Jenkins and the victim, which supported the

defense counsel’s self-defense theory. Specifically, Morgan testified that the victim was in

a gang rival to defendant’s and Jenkins’s gang. He further testified that the victim had a

confrontation with defendant and Jenkins two weeks prior to the shooting. Parker testified

that the victim had a “beef” with Jenkins. Both Morgan and Parker testified that the victim

pursued defendant and Jenkins as they were walking into the gangway. Jenkins’s purported

testimony now, as stated in his affidavit, would have not supported defendant’s theory that

he acted in self-defense. According to Jenkins’s affidavit, Jenkins would have testified that

defendant had nothing to do with the shooting and that he alone shot the victim. This was not

the theory that was presented by the defense at trial.

¶ 85 Moreover, Jenkins was a codefendant and his testimony may have been harmful to

defendant. The chance of such harm is even more likely considering that defendant

successfully moved for severed trials on the grounds that Jenkins had made statements

which, if introduced at trial, would be prejudicial to defendant. In People v. Ashford, 121 Ill.

2d 55, 75 (1988), our supreme court rejected the defendant’s postconviction petition claim

that his counsel was ineffective for not subpoenaing his codefendant to testify. The supreme

court found that subpoenaing his codefendant

“would surely have been an incomprehensible, if not utterly egregious, trial tactic ***.

Having successfully moved for severed trials on the ground that [his codefendant] had

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made statements which, if introduced at trial, would be prejudicial to him, we cannot

understand how the defendant can now fault counsel for failing to subpoena [his

codefendant].” Ashford, 121 Ill. 2d at 75.

¶ 86 In his motion for severance, defendant alleged that Jenkins “has made written and/or oral

statements implicating [him].” He further alleged that he believed that Jenkins’s defense “is

in conflict and antagonistic toward [him] and he cannot obtain a fair and impartial trial

because of the prejudice created by the inconsistent, conflicting, and antagonistic defenses.”

¶ 87 Accordingly, we cannot say that defense counsel’s decision not to call Jenkins was so

irrational or unreasonable that his performance fell below an objective standard of

reasonableness when, before trial, defendant sought to sever Jenkins’s trial from his own, and

when, during trial, defense counsel determined after interviewing Jenkins that his testimony

would not be in defendant’s best interest.

¶ 88 We find the case at bar distinguishable from the cases defendant cites where defense

counsel’s performance was deficient for failing to fulfill his promise to the jury to present

exculpatory testimony from witnesses. Defendant cites People v. Bryant, 391 Ill. App. 3d 228

(2009), and People v. Briones, 352 Ill. App. 3d 913 (2004).

¶ 89 In Bryant, the Fifth District found that defense counsel was ineffective in the defendants’

joint murder case for failing to call any witnesses, who were available to testify at trial, in

support of the defense theory proffered in opening statements to the jury that the murder was

committed by others. Bryant, 391 Ill. App. 3d at 229. On review, the Bryant court found that

defense counsel’s performance was deficient because trial counsel attempted to present his

defense entirely through cross-examination of the State’s witnesses, but his questions were

repeatedly and successfully challenged by “beyond the scope” objections from the State.

Bryant, 391 Ill. App. 3d at 239. The court found that, although counsel’s decision not to call

any witnesses was a matter of trial strategy, said strategy was not reasonable, and the

resulting prejudice was not harmless, as it “appears that counsel concluded that rather than

support the defense theory with evidence that the jury might reject, it was better to not

support the theory at all.” Bryant, 391 Ill. App. 3d at 241.

¶ 90 In the case at bar, there is no indication in the record, and defendant does not argue, that

defense counsel entirely failed to support his theory of self-defense similar to the defense

counsel in Bryant. Rather, our examination of the record in this case shows that defense

counsel’s performance was not deficient because counsel exhibited an understanding of the

fundamental rules of criminal procedure, subjected the State’s witnesses to meaningful

adversarial testing, and presented a trial strategy without flawed legal arguments. People v.

Schlager, 247 Ill. App. 3d 921, 932 (1993).

¶ 91 In Briones, the Fifth District of the Appellate Court found that defense counsel’s

performance was deficient after counsel reneged on a promise to the jury during opening

statements that the defendant would testify. Briones, 352 Ill. App. 3d at 919. During trial the

defendant informed the trial court that he decided, after speaking to his trial counsel, that he

would not testify on his own behalf. Briones, 352 Ill. App. 3d at 916. On appeal, defendant

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claimed that his defense counsel’s decision for him not to testify was unsound trial strategy

and the appellate court agreed. Briones, 352 Ill. App. 3d at 918.

¶ 92 In deciding whether defense counsel’s decision constituted deficient performance, the

court recognized that it was trial counsel’s “responsibility to evidence in the record that [her

performance] was not deficient, i.e., that the determination [that defendant would not testify]

was a result of the defendant’s fickleness or of counsel’s sound trial strategy due to

unexpected events.” Briones, 352 Ill. App. 3d at 919. In its review, the court found that

defense counsel “failed to show in the record that the defendant inexplicably changed his

decision to testify or that, because of unexpected events, sound trial strategy required her to

break her promise that the defendant would testify.” Briones, 352 Ill. App. 3d at 919. As a

result, the appellate court declined to presume that defense counsel’s decision not to present

the defendant’s testimony, after promising to do so in opening statements, was the result of

sound trial strategy and thus concluded that counsel’s performance was deficient. Briones,

352 Ill. App. 3d at 919. See also People v. Tate, 305 Ill. App. 3d 607, 612 (1999) (unable to

determine “as a matter of law” whether defense counsel’s decision to not call certain

witnesses was a “professionally reasonable tactical decision” because the record did not

reflect counsel’s reasoning for the decision).

¶ 93 Here, unlike Briones and Tate, the record shows that defense counsel had a reason for not

calling Jenkins to testify–he reasonably believed that, after interviewing Jenkins, the

testimony Jenkins would provide would not be in defendant’s best interest. Defense counsel

interviewed Jenkins before presenting the testimony and, as a result of that interview,

determined that his testimony would not be in the best interest of the defendant. Defense

counsel then informed the trial court and defendant of his decision, and defendant informed

the court that he agreed with his counsel’s decision.

¶ 94 Defendant also argues that defense counsel’s “failure to present Jenkins’s exculpatory

testimony to support defendant’s otherwise uncorroborated defense amounts to ineffective

representation.” Defendant cites People v. King, 316 Ill. App. 3d 901 (2000), but we find that

case also distinguishable to the case at bar.

¶ 95 In King, the defendant was convicted of aggravated criminal sexual assault and

aggravated kidnaping for the abduction and rape of a 17-year-old passenger on the

defendant’s school bus route. King, 316 Ill. App. 3d at 903-04. Defendant maintained that

he did not rape the passenger and was never alone with her on the bus. Defendant provided

his defense counsel with the name of an alibi witness who worked as a bus attendant on

defendant’s bus and who was working on the bus on the day of the alleged rape. King, 316

Ill. App. 3d at 904. The defendant alleged that his trial counsel never interviewed the bus

attendant in preparation for trial and never called her as a witness, although she was present

at court and available to testify on the trial date. King, 316 Ill. App. 3d at 904. The bus

attendant’s affidavit stated that she was on the bus the entire time the students were riding

home and that the 17-year-old passenger was never alone on the bus with the defendant.

King, 316 Ill. App. 3d at 904.

¶ 96 This court held that defense counsel’s performance was deficient because defense

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counsel was aware of the alibi witness but failed to interview the witness at any time before

or during trial and failed to provide an explanation for failing to call or even interview the

exculpatory witness. King, 316 Ill. App. 3d at 916. We could not conceive of any sound trial

strategy for failing to do so. King, 316 Ill. App. 3d at 916.

¶ 97 Here, on the other hand, defendant does not claim in his postconviction petition that

defense counsel failed to interview Jenkins before trial commenced, nor did Jenkins state in

his affidavit that defense counsel failed to interview him prior to trial. There is no dispute

that defense counsel did interview Jenkins before presenting his defense. As a result of that

interview, defense counsel presented defendant and the trial judge with a reason for deciding

not to call Jenkins as a witness–namely, that after interviewing the witness during a recess,

he determined that calling Jenkins was not in defendant’s best interest.

¶ 98 Defendant further argues that defense counsel’s performance was deficient for failing to

interview Jenkins, a known witness, before opening statements. However, we do not find any

factual support for this argument. Defendant does not allege in his postconviction petition

that his defense counsel did not interview Jenkins before opening statements. Jenkins, in his

affidavit, also did not allege that he was not interviewed before opening statements. We also

do not find any indication in the record that Jenkins was not interviewed before opening

statements. Normally witnesses are interviewed well in advance of trial. It is also possible

for a witness to change his testimony from the time he or she was first interviewed to the

time he or she is called as a witness. However, a codefendant in a criminal trial may not

agree to an interview until his trial has been concluded. We do not know, nor does the

petition state, when Jenkins was first interviewed or what attempts were made to interview

Jenkins prior to trial.

¶ 99 The record shows that defendant’s decision not to call Jenkins as a witness, even after

promising to call him as a witness during opening statements, appears to be the product of

sound trial strategy. Considering Jenkins’s affidavit in addition to the record, we cannot say

that defendant overcame the presumption that his defense counsel’s decision not to call

Jenkins was the product of reasonable trial strategy. Since we are unable to conclude that

defense counsel’s performance arguably fell below objective standards, defendant’s claim

of ineffective assistance of trial counsel and appellate counsel must fail. Patterson, 192 Ill.

2d at 107. Accordingly, we cannot say that the trial court’s summary dismissal of defendant’s

postconviction petition as frivolous and patently without merit was not proper.

¶ 100 III. CONCLUSION

¶ 101 We affirm the trial court’s summary dismissal of defendant’s pro se postconviction

petition as frivolous and patently without merit.

¶ 102 Affirmed.

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¶ 103 JUSTICE GARCIA, specially concurring:

¶ 104 I do not subscribe to the majority’s rejection of People v. Carr, 407 Ill. App. 3d 513

(2011), which held that an unsigned affidavit is not valid, for being at odds with this court’s

decision in People v Henderson, 2011 IL App (1st) 090923. Supra ¶ 72. Specifically, I

disagree with the implicit suggestion by the majority that because a first-stage postconviction

petition should not necessarily be dismissed for lack of supporting documentation based on

an unsworn “affidavit” from a postconviction defendant under Henderson, the same result

should obtain when the unsworn “affidavit” purports to be from a codefendant on behalf of

a postconviction defendant. I agree with the observation in Henderson, “We need not address

the result in Wilborn, as that case did not present an issue identical to the one before us.”

Henderson, 2011 IL App (1st) 090923, ¶ 36.

¶ 105 In this case, the defendant offers the excuse that Jenkins’s efforts to notarize his

statement were rebuffed by the Illinois Department of Corrections. It is fair to say that the

defendant’s assertion cannot be based on his own knowledge. There may be another equally

plausible reason for Jenkins’s statement not being notarized. In any event, I am not persuaded

that an unsigned “affidavit” from a postconviction petitioner and an unsigned “affidavit”

from a purported witness should be treated alike.

¶ 106 However, I agree with the majority’s conclusion that upon de novo review the

postconviction petition, with its supporting documentation, meets the legal standard of

frivolous and patently without merit to warrant dismissal at the first stage, which after all is

the true holding of this case and is the same result we reached as to the postconviction

petition we reviewed in Henderson.

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