People v. Saleh

2020 IL App (1st) 172979

No. 1-17-2979

Opinion filed September 30, 2020

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of Cook County.

)

Plaintiff-Appellee, )

)

v. ) No. 07 CR 4544

)

ALI SALEH, ) The Honorable

) William T. O’Brien,

Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

Justices Hall and Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant Ali Saleh appeals from the second-stage dismissal of his

petition for postconviction relief.

¶2 Defendant, age 52, was convicted after a bench trial of the aggravated

battery of Robert Schmitt, age 33, and sentenced to 30 months of felony

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probation. The charges stemmed from an altercation between defendant, who

was a Chicago taxicab driver, and a group of passengers in his cab who had

been drinking on a Saturday night in Wrigleyville. This court affirmed

defendant’s conviction and sentence on appeal. People v. Saleh, 2011 IL App

(1st) 100853-U.

¶3 Defendant's petition claims that his trial counsel was ineffective for

failing to call defendant’s dentist in support of defendant’s claim of self-

defense. Defendant testified at trial that he did not initiate the conflict, that he

acted in self-defense, and that Schmitt punched defendant in the back of his

head, causing defendant to hit his teeth on the roof of his cab.

¶4 For the following reasons we affirm the trial court’s second-stage

dismissal.

¶5 BACKGROUND

¶6 I. Pretrial Proceedings Regarding the Dentist

¶7 After defendant’s pretrial motion for the passengers’ credit card records

to establish their alcohol consumption and his pretrial motion to quash his arrest

were denied, defendant’s original attorney moved to withdraw, and a second

attorney filed an appearance. It is the effectiveness of this second attorney that

defendant placed at issue on this appeal, and we will refer to him as trial

counsel.

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¶8 On January 20, 2009, when trial counsel first appeared in court, he stated

that he was retained “very recently,” that he had not yet received the file from

the prior attorney, but that he wanted “to move the case to trial as rapidly as

possible.” However, on January 27, 2009, he requested more time in order “to

get subpoenas issued.” After several more continuances, trial counsel informed

the court on September 8, 2009: “I don’t have the subpoena I need for [the]

dentist, who fixed my client’s teeth. I need to be able to get him in.” The

assistant State’s attorney (ASA) replied: “he just informed me of a dentist, and

I don’t have any information on that.”

¶9 On September 28, 2009, the following exchange occurred:

“THE COURT: This is set for a bench trial

TRIAL COUNSEL: Yes, Judge, defense is not ready for trial today.

We’re having some difficulty with our dentist that we need. I’d like to

have a date, so that I could issue a subpoena and make sure he’s here.”

Also on September 28, 2009, trial counsel filed defendant’s answer to discovery

which stated that defendant “intends to call as a witness Dr. M. Salih, [address

and phone number], who will testify regarding his treatment of injuries

sustained by the [d]efendant at the hands of the complaining witnesses.” The

answer further stated that defendant “intends to utilize [d]efendant’s medical

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records from Salih Dental Center, and will provide them to the State as soon as

they are received.”

¶ 10 On October 19, 2009, the ASA informed the trial court:

“Counsel had filed an answer of self-defense and listed a witness, an

individual whose name is [Salih]. We attempted to interview that dentist

and we received a fax in the office indicating that he’s been out of the

country for the past three months due to his wife’s death. And the

individual indicated, ‘I tried to look for the records of the patient, the

defendant, but could not find them, called the doctor overseas, asked him

for it, but, unfortunately, he says he has them in his office which I don’t

have access to.’ ”

¶ 11 The ASA stated he was not provided the dentist’s return date, and trial

counsel asked to set the case for status on November 6, 2009, because: “That

way we can see if he’s back or know when he will be back.” On November 6,

trial counsel moved for a trial date of December 17, 2009. After another

continuance, the case proceeded to a bench trial on January 11, 2010, with both

sides answering that they were ready.

¶ 12 II. Trial

¶ 13 At trial, Robert Schmitt, a high school history teacher, testified that his

younger sister, Katie Schmitt, visited him in Chicago on Saturday, December

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No. 1-17-2979

16, 2006, to celebrate her twenty-first birthday. Since Katie shares the same

last name as the victim, we will refer to her as Katie and refer to the victim as

Schmitt. On December 16, Schmitt, Katie, and Schmitt’s then-fiancée and now

wife, Carrie Gilson, departed from his apartment at 8 p.m. and proceeded,

during the course of the evening, to three different establishments where they

consumed both food and alcohol. Schmitt consumed a total of four drinks: two

gin-and-tonics and two beers.

¶ 14 Schmitt testified that, shortly after midnight on December 17, 2006, they

hailed defendant’s yellow taxicab. Schmitt sat behind the front passenger seat,

Gilson sat behind the driver, and Katie sat between them. As the cab

approached the intersection of Ashland and Belmont Avenues, Katie

complained that she felt sick, and Schmitt responded that she would be all right

and they were close to his apartment. However, as the cab crossed Ashland

Avenue, Katie insisted that it pull over because she was going to be sick.

Schmitt asked defendant to pull over, and he did so. When the cab stopped,

Schmitt opened the back passenger-side door and exited the cab. Katie moved

across the back seat and leaned her body outside of the cab to vomit. Although

seated in the back seat, Katie’s arms, legs and head were leaning outside of the

cab. While standing outside of the cab, Schmitt heard defendant speaking in a

heated tone to Gilson, who remained in the cab, but Schmitt could not hear

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No. 1-17-2979

what was said. Katie exited the vehicle and continued vomiting on the

sidewalk, approximately six feet from the cab, while Schmitt stood next to her.

¶ 15 Schmitt testified that he heard Gilson and defendant arguing and, then,

Gilson yelling: “He hit me, he hit me.” Schmitt observed Gilson standing

outside the cab, on the driver’s side, holding her face, with defendant standing

about a foot away from Gilson, facing her. Schmitt ran over and pushed

defendant’s chest with his open palms, to shove defendant away from Gilson.

When pushed, defendant backed up toward the cab door, turned, and then

slapped Schmitt across the left side of Schmitt’s face with his right hand.

Schmitt did not observe a weapon in defendant’s hand, and defendant’s palm

was open.

¶ 16 Schmitt testified that both Gilson and Katie started screaming when they

observed blood pouring down Schmitt’s face. Schmitt had a 3 to 3½ inch open

wound and was losing a significant amount of blood at a fast pace. Defendant

drove away, and Gilson called 911. The police and paramedics arrived, and an

ambulance transported Schmitt to a hospital where he received 38 stitches on

the right side of his face. Schmitt testified that he had a permanent three-inch

scar above his jaw.

¶ 17 Gilson testified that she was also a passenger in defendant’s cab. After

Schmitt and Katie exited the cab, Gilson remained inside. Defendant shouted at

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No. 1-17-2979

Gilson in English and another language that Gilson should exit his cab. When

Gilson told him to “calm down,” defendant’s tone escalated and he used

profanity. As Gilson opened the back driver’s-side door to exit the cab,

defendant also exited the front driver’s-side door. Gilson was standing a foot

away from defendant, outside of the cab, when defendant punched her in the

jaw. Gilson started screaming, and Schmitt ran between her and defendant and

pushed defendant away. Defendant reached back with his right hand and

slapped Schmitt on the left side of Schmitt’s face. Defendant then quickly

drove away. Gilson testified that Schmitt’s “face was gaping open and blood

was just coming out rapidly” and “dropping on his clothes.” Gilson did not

observe a weapon in defendant’s hand. Gilson testified that she called 911

and gave the dispatcher defendant’s taxi number and his physical description.

Later that day, she identified defendant at the police station as the person who

slapped Schmitt.

¶ 18 Officer Martin Walsh testified that he had been a Chicago police officer

for 10 years. On December 17, 2006, he responded to a call of a “person with a

knife,” and he met Schmitt, Gilson and Katie standing on the street. Walsh

observed that Schmitt had a three-inch gash on his cheek, and Gilson had

redness and swelling on the right side of her cheek and a swollen lip. Gilson

did not appear under the influence of alcohol as she provided defendant’s taxi

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No. 1-17-2979

number and description. Walsh testified that Gilson later identified defendant

as the offender at the police station.

¶ 19 Sergeant William Brannigan testified that he had been a police officer for

over 15 years. On December 17, 2006, at 12:15 a.m. he received a message that

a victim had been stabbed during a dispute with a taxicab driver. Brannigan

observed the cab with the reported number, as Brannigan was traveling in a

marked police vehicle, and he followed the cab for three blocks. The cab then

pulled into a police station parking lot and parked. Defendant exited the cab

without being told to do so, and Brannigan asked defendant if he had been

involved in a dispute. After defendant replied affirmatively, Brannigan took

him into custody. Later, when Brannigan searched the cab, he did not observe

or smell vomit and he did not find a weapon.

¶ 20 Detective Michael McDonough testified that he had been a Chicago

police officer for 20 years. On February 8, 2007, his sergeant informed him

that defendant’s case was in misdemeanor court, but that the ASA wanted to

upgrade the charge to a felony.1 McDonough went downstairs to misdemeanor

court and waited in the hallway, outside of the courtroom, for defendant to exit.

When defendant entered the hallway, McDonough stopped him and stated that

the police needed to continue their investigation with him upstairs. They went

1

The felony indictment was filed in this case on March 9, 2007, and

indicates that McDonough was the sole witness.

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No. 1-17-2979

upstairs, to an interview room, where defendant chose not to waive his

constitutional rights and exited the room. However, defendant returned

voluntarily, 20 minutes later, to the interview room and knocked on the door.

McDonough again advised defendant of his constitutional rights, and defendant

again exercised his right not to waive them. Defendant then stated that, when

he stopped the cab because Katie was sick, Schmitt and Gilson became angry

and screamed for him to take them home. Schmitt then exited and tried to fight

defendant, and defendant hit Schmitt with his right hand “very slightly, on the

face.” Defendant stated that he probably had his keys in his hand when he

struck Schmitt. McDonough testified that: “The wound to Mr. Schmitt’s face,

in my opinion, would be a razor blade, or box cut, or something along those

lines.”

¶ 21 The State rested, and defendant moved for a directed finding, arguing

that the State had failed to prove, beyond a reasonable doubt, that defendant

was not acting in self-defense. After the trial court denied the motion,

defendant chose to testify on his own behalf.

¶ 22 Defendant testified that he had been a taxi driver for 30 years. Schmitt,

Gilson and Katie hailed his cab at 11:30 p.m. on December 16, 2006. Shortly

after, Katie appeared sick. Defendant told them that he wanted to stop and pull

the cab over, but Schmitt and Gilson insisted that he continue driving. When

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No. 1-17-2979

defendant observed Katie place her hand on her mouth and vomit into her hand,

he pulled the cab over, at the intersection of Belmont and Ashland Avenues.

When he parked, he asked Schmitt to make sure Katie finished vomiting

outside. Defendant told Gilson that, if they had let him stop earlier, Katie

would not have vomited inside his cab. Defendant testified that the “smell,” at

this point, was “getting bad.” Gilson called him insulting names and told him:

“Shut up, go back to your country.” Defendant asked Gilson to leave but she

still wanted him to take them home. When he informed Gilson that he would

not drive them further, Gilson continued to call him insulting names and was

using profanity.

¶ 23 Defendant testified that, because Gilson appeared unwilling to exit, he

opened her door and said: “Please get out of the cab.” As Gilson exited, she

tried to punch him in the mouth, but he blocked her fist by grabbing her hand.

Gilson then screamed: “He hit me, he hit me.” Schmitt ran over, and defendant

told Schmitt that he had not hit Gilson, but Schmitt hit him anyway. When

defendant turned toward his cab, Schmitt punched him with a closed fist on the

back of his head, saying: “You’re a f***ing terrorist.” The blow caused

defendant to hit his teeth on the top of his cab hard enough to loosen a tooth.

Schmitt and Gilson then simultaneously attacked him, with Gilson grabbing his

hair and scratching his neck and Schmitt punching and jabbing his knee against

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No. 1-17-2979

defendant’s stomach. Defendant then struck Schmitt’s face with his keys in his

hand. Defendant drove away and called 911 to report the incident. Defendant

pulled into the parking lot of a police station, where he told officers what had

happened and they arrested him. On February 8, 2007, when he spoke to

Detective McDonough, he told the detective that Gilson had called him

insulting names and scratched his throat but he did not inform the detective that

Gilson or Schmitt had hit him or that he had injured his teeth during the

incident.

¶ 24 After the defense rested, the State called Officer Kevin Finnegan in

rebuttal who testified that he had been a Chicago police officer for 14 years.

On December 17, 2006, he processed defendant’s arrest and booking, and he

did not observe any injuries or scratches on defendant. Defendant did not

inform Finnegan that he was injured or had been punched, scratched or had

loose teeth. Officer Finnegan asked defendant whether he had any injuries, and

defendant indicated that he did not. After listening to closing arguments, the

trial judge continued the proceedings for a few days to allow him to review his

notes.

¶ 25 On January 15, 2010, the trial judge announced his findings, observing

that there was “a question of credibility” between Schmitt and his wife on the

one side and defendant on the other. The Schmitts claimed that defendant

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No. 1-17-2979

attacked them, while defendant claimed that he was attacked first and acted in

self-defense. The judge noted that, according to the Schmitts, “the sequence of

events” was that (1) defendant punched Gilson; (2) Schmitt pushed defendant

against the cab; and (3) defendant struck Schmitt. The judge noted that, in

contrast, according to defendant, the sequence of events was that: (1) Gilson

tried to punch defendant who grabbed her arm; and (2) Schmitt ran over and

struck defendant in the back of the head, “forcing defendant’s face into the cab

[and] causing the defendant’s teeth to strike the cab and loosening his teeth.”

¶ 26 The trial court found that “[t]he testimony and the photos clearly

support” the Schmitts’ “version.” For example, Gilson testified that defendant

punched her; and Officer Walsh, the first officer on the scene, testified that he

“noted the injury to her.” In addition, photos taken of her “clearly” showed her

injury, while no injury was noted on defendant. The trial court found that

defendant was “the initial aggressor” and that defendant was not injured.

¶ 27 The trial court observed that, “in the defendant’s own words,” the

“smell” in his cab was “bad.” “Yet minutes after this confrontation,” the

officer who placed defendant under arrest did not observe or smell vomit.

Although defendant claimed that he called 911 and ended the call when he

pulled into the police station, there was no evidence that this 911 call was made.

Regarding the claimed dental injury, the trial court observed:

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No. 1-17-2979

“Even after the defendant’s arrival to the station, he never tells the police

that he was attacked by the Schmitt[s]. He claims that he was injured.

He had loose teeth and scratches to the neck, but the lock-up keeper

Finnegan testified that he had interviewed [defendant], [and] there were

no complaints of any injury or illness and he also examined the booking

photo which does not depict any injury to [defendant’s] neck.”

The trial court then found defendant guilty of aggravated battery to Schmitt,

who was the only victim mentioned in the indictment.

¶ 28 On February 18, 2010, defendant was sentenced to 30 months of felony

probation and, on March 18, 2010, he filed a pro se notice of appeal. On

appeal, defendant claimed that the trial court erred in finding that he possessed

the requisite intent for aggravated battery, where the State failed to prove

beyond a reasonable doubt that he knew that slapping Schmitt with an open

palm would cause great bodily harm or disfigurement. This court found \the

claim unpersuasive in light of his admitted “utilization of the keys” (Saleh,

2011 IL App (1st) 100853-U, ¶ 43); and we affirmed his conviction on appeal

on December 16, 2011. Saleh, 2011 IL App (1st) 100853-U, ¶¶ 44-46.

¶ 29 On June 13, 2012, defendant filed a pro se postconviction petition. After

the petition advanced to the second stage and counsel was appointed, defendant

filed a supplemental petition on July 27, 2016. Defendant alleged that his trial

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No. 1-17-2979

counsel was ineffective for failing to call his dentist at trial to corroborate

defendant’s testimony that he was injured by Schmitt and acted in self-defense.

The supplemental petition further alleged that the dentist “refuses to sign an

affidavit that he signed the [attached] letter dated February 6, 2007 that contains

his opinion [that defendant’s] tooth was traumatized; however, [the dentist]

released his treatment records of [defendant] which are attached as evidence of

treatment.”

¶ 30 The petition was supported by: (1) an affidavit by defendant averring

that the petition is “true and correct” and “made upon personal knowledge and

belief”; (2) a Rule 651(c) (eff. July 1, 2017) certificate by his attorney which

stated, among other things, that she had “interviewed [the dentist], and

examined his dental files of [defendant]; however, [the dentist] refused to sign

an affidavit.”

¶ 31 The petition included a letter apparently signed by the dentist, dated

February 6, 2007, on the dental center’s letterhead stationery. The letter stated,

in relevant part:

“This is to certify that [defendant] presented to my office [a] few

weeks ago with a complaint that ‘somebody hit me in the face and losen

[sic] my teeth in a fight.’

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No. 1-17-2979

Upon dental exam it was found that tooth #25 (fron[t] lower tooth) has

been traumatized and very lose [sic], has mobility of +4 which must be

extracted. It was also found that some losening [sic] on upper front

bridge opposing tooth #25.”

Another letter, dated June 20, 2007, also apparently signed by the dentist and

also on the dental center’s letterhead stationery, stated that defendant was “in

need” of certain “treatment as a result of the accident he had and been examined

for on feb. [sic] 6, 2007.” The petition included dental records for defendant

from 2007 through 2011, with the initial date being February 6, 2007.

¶ 32 On July 14, 2017, the State moved to dismiss. The trial judge who heard

the motion was the same trial judge who had presided over defendant’s pretrial,

trial and sentencing proceedings; and on October 20, 2017, he found:

“In reviewing the proceedings and also [I] recall the case, the motion

to dismiss is granted. The Court agrees *** that counsel was not

ineffective for his decision not to call defendant’s dentist as a witness.

*** [B]asically it would not have made a difference, in effect, that the

testimony by the officer and other witnesses contradicted that kind—

those kinds of assertions that [defendant] wanted to make.”

On October 27, 2017, defendant filed a timely notice of appeal, and this appeal

followed.

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No. 1-17-2979

¶ 33 ANALYSIS

¶ 34 I. Post-Conviction Hearing Act

¶ 35 Defendant seeks relief under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2018)).

¶ 36 The Act provides a statutory remedy for criminal defendants who claim

their constitutional rights were violated at trial. People v. Edwards, 2012 IL

111711, ¶ 21. It is not a substitute for an appeal, but rather a collateral

proceeding that attacks a final judgment. Edwards, 2012 IL 111711, ¶ 21.

¶ 37 The Act provides for three stages of review by the trial court. People v.

Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court may

summarily dismiss a petition only if it is frivolous or patently without merit.

725 ILCS 5/122-2.1(a)(2) (West 2018); Domagala, 2013 IL 113688, ¶ 32.

¶ 38 At the second stage, counsel is appointed if a defendant is indigent. 725

ILCS 5/122-4 (West 2018); Domagala, 2013 IL 113688, ¶ 33. After counsel

determines whether to amend the petition, the State may file either a motion to

dismiss or an answer to the petition. 725 ILCS 5/122-5 (West 2018);

Domagala, 2013 IL 113688, ¶ 33. At the second stage, the trial court must

determine “whether the petition and any accompanying documentation make a

substantial showing of a constitutional violation.” People v. Edwards, 197 Ill.

2d 239, 246 (2001).

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No. 1-17-2979

¶ 39 If the defendant makes a “substantial showing” at the second stage, then

the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL

113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as

factfinder, determines witness credibility and the weight to be given particular

testimony and evidence, and resolves any evidentiary conflicts. Domagala,

2013 IL 113688, ¶ 34.

¶ 40 II. Forfeiture

¶ 41 The State argues that defendant’s claim of ineffective assistance of trial

counsel was forfeited by his failure to raise the issue on direct appeal.

¶ 42 “Issues that were decided on direct appeal are barred by the doctrine of

res judicata, and issues that could have been raised on direct appeal, but were

not, are deemed waived.” People v. Enis, 194 Ill. 2d 361, 375 (2000).

¶ 43 In response, defendant argues that he could not have raised this claim on

direct appeal because the dentist’s papers, which are now attached to his

petition, were not part of the court record. It is well-established that “[w]aiver is

not implicated *** where a defendant’s post conviction claim relies on evidence

dehors the record.” Enis, 194 Ill. 2d at 375-76. By the record, the Act means “

‘the court file of the proceeding *** and any transcripts of such proceeding. ’ ”

People v. Sanders, 2016 IL 118123, ¶ 43 (quoting 725 ILCS 5/122-2.1(c) (West

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No. 1-17-2979

2014)). See also People v. Robinson, 2020 IL 123849, ¶ 45 (“the trial record”).

Thus, we do not find the State’s argument persuasive.

¶ 44 In addition, an appellate court always has an independent duty to

consider whether it has jurisdiction to review a case, and we find that we do for

the reasons discussed below. See 725 ILCS 5/122-1(a) (West 2018) (any person

serving a sentence may institute a proceeding under the Act). Since the

sentencing occurred on February 18, 2010, it appears that defendant’s sentence

of 30 months’ probation had not yet run before he filed his pro se

postconviction petition on June 13, 2012, approximately 28 months after his

sentencing.2 In his pro se petition, defendant alleged that he was “a couple of

months away from successfully completing [his] probation.” The State does not

argue that we lack jurisdiction to hear his petition because his sentence was

complete prior to the filing of his pro se petition. Thus, we find that we have

jurisdiction to hear this appeal.

¶ 45 III. The Second Stage

¶ 46 Defendant’s petition was dismissed at the second stage. The issue at the

second stage is whether the petitioner made a substantial showing such that an

2

Neither the presentencing report nor the trial judge at the sentencing

hearing indicated that defendant was to receive any credit for time prior to

sentencing. In the case at bar, defendant was out on bond prior to his conviction

on January 15, 2010. After the trial court’s finding of guilt, the State asked that

bond be revoked, but the trial court denied the motion, finding that “[b]ond will

stand.”

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No. 1-17-2979

evidentiary hearing is warranted. People v. Sanders, 2016 IL 118123, ¶ 37. At

the second stage, the allegations in the petition are “liberally construed in favor

of the petitioner.” Sanders, 2016 IL 118123, ¶ 30. “All well-pleaded factual

allegations must be taken as true.” Sanders, 2016 IL 118123, ¶ 37. “[T]here

are no factual issues” at the second stage. Sanders, 2016 IL 118123, ¶ 31.

“Credibility determinations may be made only at a third-stage evidentiary

hearing.” Sanders, 2016 IL 118123, ¶ 42.

¶ 47 At the second stage, a court considers only the proofs attached by

defendant to his petition and the record of his original trial proceedings.

Sanders, 2016 IL 118123, ¶¶ 45, 48. The Act specifically requires the

petitioner to attach to his petition “affidavits, records or other evidence

supporting the petition’s allegations or state why the same are not attached.”

Sanders, 2016 IL 118123, ¶ 45 (citing 725 ILCS 5/122-2 (West 2014)). The

court must accept as true both the petition’s allegations and its supporting

evidence “unless they are positively rebutted by the record of the original trial

proceedings.” Sanders, 2016 IL 118123, ¶ 48.

¶ 48 When no evidentiary hearing is held, a reviewing court’s standard of

review is de novo. Sanders, 2016 IL 118123, ¶ 31 (a second-stage dismissal is

reviewed de novo). De novo consideration means that we perform the same

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No. 1-17-2979

analysis that a trial judge would perform. People v. Carrasquillo, 2020 IL App

(1st) 180534, ¶ 107.

¶ 49 IV. Ineffective Assistance of Counsel

¶ 50 Defendant’s sole claim is that his trial counsel was ineffective. To prevail

on a claim of ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance was deficient, and that this deficient performance

prejudiced the defendant. Domagala, 2013 IL 113688, ¶ 36. Specifically, at the

second stage, a defendant must make a substantial showing: (1) that counsel’s

performance was objectively unreasonable under prevailing professional norms;

and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

See Domagala, 2013 IL 113688, ¶ 36. “The failure to satisfy either the

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

finding of ineffective assistance of counsel.” Enis, 194 Ill. 2d at 377.

¶ 51 “A reasonable probability is a probability sufficient to undermine

confidence in the outcome, namely, that counsel’s deficient performance

rendered the result of the trial unreliable or the proceeding fundamentally

unfair.” Enis, 194 Ill. 2d at 376.

¶ 52 Specifically, defendant claims that his counsel was ineffective for failing

to call his dentist as a witness. Generally, “decisions concerning whether to call

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No. 1-17-2979

certain witnesses on a defendant’s behalf are matters of trial strategy, reserved

to the discretion of trial counsel.” Enis, 194 Ill. 2d at 378. “Such decisions

enjoy a strong presumption that they reflect sound trial strategy, rather than

incompetence [citation], and are, therefore generally immune from claims of

ineffective assistance of counsel.” Enis, 194 Ill. 2d at 378. However, “this is

not the case *** where counsel’s strategy was so unsound that no meaningful

adversarial testing was conducted.” Enis, 194 Ill. 2d at 378.

¶ 53 Defendant makes his ineffectiveness claim without a supporting affidavit

from the dentist himself. The Act provides that a petition “shall” attach

supporting affidavits “or other evidence,” “or shall state why the same are not

attached.” 725 ILCS 5/122-2 (West 2018). In the case at bar, defendant

provided a Rule 651(c) certificate from his attorney explaining why an affidavit

from the dentist was not attached, namely, because the dentist refused to sign

one.

¶ 54 Generally, “[a] claim that trial counsel failed to investigate and call a

witness must be supported by an affidavit from the proposed witness.” Enis,

194 Ill. 2d at 379. This is because, in the absence of such an affidavit, a

reviewing court cannot usually “determine whether the proposed witness could

have provided testimony or information favorable to the defendant” and, thus,

“further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 379.

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¶ 55 In Enis, the defendant failed to provide an affidavit from the witness, and

our supreme court stated that “even if” it considered an “investigation note,[3] in

lieu of an affidavit,” the defendant’s claim would fail. Enis, 194 Ill. 2d at 379.

This dicta in Enis suggests that there may be exceptional circumstances where a

reviewing court may consider another document “in lieu of an affidavit.” Enis,

194 Ill. 2d at 379.

¶ 56 Even if we were to consider the dentist’s letters and records, we do not

know whether the dentist would testify or in some way verify that defendant’s

injured teeth could or might be the result of an injury at the time of this

incident. Thus, we cannot find that defendant has made a substantial showing

of a reasonable probability that, but for trial counsel’s decision not to call the

dentist, the outcome would have been different.

¶ 57 In the case at bar, the victim of the aggravated battery charge, namely,

Schmitt, admitted that he shoved defendant toward the cab before defendant

laid a hand on Schmitt. Defendant argues that the dental records establish that

Schmitt’s shove was really a punch that was forceful enough to damage

defendant’s teeth, and that this act, in conjunction with other acts by the

Schmitts, was sufficient to justify defendant’s acting in self-defense.

3

The Enis opinion does not specify whether the investigation note was a

police note or the note of a defense investigator. Enis, 194 Ill. 2d at 379-80 (“an

unsigned, unsworn untitled report that defendant identifies as investigation notes

from ‘Consolidated Investigation *** Services.’ ”

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No. 1-17-2979

¶ 58 The first problem with this argument is that it ignores the police

testimony and other evidence that contradicted defendant’s account of events.

Defendant denied punching Gilson, but Officer Walsh, the first officer on the

scene, testified that Gilson appeared to be injured, with redness and swelling to

the right side of her cheek and a swollen lip; and photos of Gilson’s face further

substantiated her and Walsh’s testimony. In addition, defendant testified that

the vomit in his cab smelled “bad,” but another officer, Sergeant Brannigan,

testified that, when he searched the cab shortly after the incident, he did not

observe or smell any vomit. Although defendant testified that Gilson scratched

his neck while Schmitt punched him, Officer Finnegan, the booking officer, did

not observe any injuries or scratches on defendant. The same judge who

presided over both defendant’s bench trial and postconviction proceedings

found that testimony from the dentist would not have made a difference in light

of the police testimony and other evidence. Performing a de novo review, we

agree.

¶ 59 Second, even if we presumed that the dentist would have testified in

accord with the documents that defendant now presents, those documents

contradict each other. The first letter, dated February 6, 2007, states: “This is to

certify that [defendant] presented to my office few weeks ago [sic] with a

complaint that ‘somebody hit me in the face and lo[o]sen my teeth in a fight.’ ”

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No. 1-17-2979

However, a second letter, dated June 20, 2007, states: “This is to certif[y] that

[defendant] is in need of the following treatment as a result of the accident that

he had and been examined for on [F]eb. 6[,] 2007.” The first letter mentions a

fight, while the second letter mentions an accident. The first letter indicates that

defendant “presented” to the dentist’s office a few weeks prior to February 6,

2007, while the second letter and all the attached dental charts indicate that the

earliest examination date was actually February 6, 2007, almost two months

after the offense. By relating these facts, we are not engaging in a credibility

determination; rather, without his affidavit, we are left to guess as to which

version the dentist would testify to. One version would aid defendant by

showing a more immediate outcry, while one would undercut his trial testimony

by showing an unexplained gap in time of almost two months.

¶ 60 Third, it is hard to ignore the fact that the first entries made by the dentist

in his dental charts are dated February 6, 2007, almost two months after the

altercation, but only two days before defendant appeared in misdemeanor court

when the charges were shortly changed to felony charges.

¶ 61 Lastly, we cannot find that trial counsel acted below the norms of

professional conduct when he made the apparently strategic decision not to call

a witness who so consistently avoided any sworn statement. On September 28,

2009, trial counsel informed the court that he was “having some difficulty with

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No. 1-17-2979

our dentist.” On October 19, 2009, the ASA informed the court that the State

had also tried to interview the dentist and obtain records from him without

success. Defendant’s supplemental postconviction petition states that the

dentist refused to sign an affidavit confirming that he actually signed the letter,

dated February 6, 2007, which mentioned a fight and trauma to a tooth.

Postconviction counsel’s Rule 651(c) certificate states that she interviewed the

dentist but he refused to sign any affidavit. As our supreme court has observed

before, uncooperative witnesses do not always make the best witnesses. E.g.,

People v. Lewis, 105 Ill. 2d 226, 248 (1984) (where the ineffectiveness alleged

by a postconviction petition is counsel’s failure to call certain “uncooperative”

witnesses, “the tactical decision not to have them testify was reasonable and

could have been in defendant’s best interest”).

¶ 62 For all the foregoing reasons, we cannot find either: (1) that counsel’s

performance was objectively unreasonable under prevailing professional norms;

or (2) that there is a reasonable probability that, but for counsel’s alleged errors,

the result of the proceeding would have been different. See Domagala, 2013 IL

113688, ¶ 36.

¶ 63 CONCLUSION

¶ 64 For the foregoing reasons, we affirm the trial court’s second-stage

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dismissal of defendant’s postconviction petition.

¶ 65 Affirmed.

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No. 1-17-2979

No. 1-17-2979

Cite as: People v. Saleh, 2020 IL App (1st) 172979

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07 CR 4544;

the Hon. William T. O’Brien, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Elizabeth Cook, of State

for Appellate Defender’s Office, of Chicago, for appellant.

Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.

for Spellberg, John E. Nowak, and Noah Montague, Assistant State’s

Appellee: Attorneys, of counsel), for the People.

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