2020 IL App (1st) 181062-U No. 1-18-1062 Order filed September 11, 2020 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 5536 ) DENNIS ALLEN, ) Honorable ) Domenica A. Stephenson, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Rochford concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed because it failed to make an arguable claim of ineffective assistance of counsel.
¶2 Defendant Dennis Allen appeals from the circuit court’s summary dismissal of his pro se
petition for relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2016)). On appeal, defendant contends that this court should remand for further
proceedings because he raised an arguable claim that he was denied the effective assistance of No. 1-18-1062
counsel based on trial counsel’s failure to present character witnesses who would have testified
to his “reputation for morality and chastity.” We affirm.
¶3 Following a jury trial, defendant was found guilty of three counts of predatory criminal
sexual assault of a child and was sentenced to mandatory life imprisonment. See 720 ILCS 5/12-
14.1(a)(1), (b)(1.2) (West Supp. 2011). The underlying facts were fully set forth in our order on
direct appeal. See People v. Allen, 2016 IL App (1st) 142135-U. Therefore, we will only recite
those facts necessary to the disposition of this appeal. 1
¶4 Defendant was arrested based on incidents involving two minors, R.G. and A.G.
Following a pretrial hearing, the court granted the State’s motion to admit certain hearsay
statements of the minors into evidence pursuant to section 115-10 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-10 (West 2014)).
¶5 Defendant’s answer to the State’s motion for pretrial discovery listed four potential
witnesses: Vincent Appleton, Vishon Appleton, Makil Appleton, and Angela Bullock. 2 The State
then filed a motion in limine seeking, in pertinent part, to bar those witnesses from testifying
unless defendant first provided the trial court with a proffer of their proposed testimony, as
“[n]one of the named witnesses are occurrence witnesses.” At the hearing on the State’s motion,
trial counsel stated that the answer to discovery identified “some” character witnesses, but that
“after talking to [defendant] about it, we have decided that we are not going to be calling any
character witnesses in this case.”
1 The trial transcript is missing pages throughout. However, these missing pages do not prevent the court from fully addressing the merits of defendant’s particular contention in this appeal. 2 In defendant’s answer to discovery, the witnesses’ names were set forth in a handwritten addition to typed text. As the handwriting is unclear, we use an approximation of the spelling.
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¶6 At trial, Jetty G., the victims’ adoptive mother, testified that in February 2011, R.G. and
A.G. were under 13 years of age. Jetty rented rooms in her home, and defendant worked as a
caregiver for Eugene Cornelius, one of her tenants. Previously, defendant had also rented a room.
Although defendant’s duties did not include interacting with Jetty’s children, defendant wanted
to be their father figure. There were five children in the home, but defendant specifically bought
things for R.G. and A.G. and took them on outings. When R.G. and A.G. came home from
school, Jetty would be at work and defendant would be present. She told defendant four or five
times not to enter the boys’ bedroom.
¶7 Between 1 and 2 a.m. on February 25, 2011, Jetty woke to her adult daughter Cynthia G.
screaming. When Jetty went downstairs to the living room, where R.G. had been sleeping due to
home renovations, Cynthia was threatening defendant with an iron. Defendant said he “didn’t do
it.”
¶8 Cynthia testified that defendant asked to spend the night on February 24, 2011 because
Cornelius had a medical appointment early the next morning. At one point, Cynthia woke to
make a snack. She then saw R.G. “thrown” onto an air mattress by defendant. Cynthia told
defendant she “caught” him and told Jetty that defendant was “messing around” with her
younger brother. Although defendant stated that R.G. was “sleep[ing] wild,” Cynthia did not
believe him.
¶9 R.G. testified that he was born on June 13, 2000, and lived with Jetty since he was four
years old. He met defendant when he was seven years old. Defendant took R.G. and A.G.
shopping, and to movies and restaurants. On the night of February 24, 2011, R.G. slept on an air
mattress in the living room and defendant slept on a pallet beside him. At one point, R.G. was
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pulled off the air mattress and felt a “heavy person” on top of him. He then heard the sound of
popcorn and saw a light turn on. Defendant threw him back on the air mattress and R.G. heard
Cynthia “cursing out” defendant. The next morning, R.G. went to the hospital and spoke to
police officers.
¶ 10 R.G. further testified that when he was about nine years old, he and A.G. were in their
bedroom when defendant entered, said it was “time to play,” removed his penis from his pants,
and tried to make them suck it. Although both boys resisted, defendant’s penis touched each
one’s face. R.G. next described an incident in which defendant performed oral sex on R.G. and
A.G. Defendant took them to their bedroom and locked the door. Defendant first went to A.G.,
pulled down his clothing, and began sucking his penis. Defendant then went to R.G. and began
sucking R.G.’s penis. After about 10 seconds, R.G. “peed” in defendant’s mouth. Defendant said
he was going to “whoop” R.G., but the doorbell rang, so defendant went to answer the door.
¶ 11 When the State asked R.G. whether defendant touched R.G.’s penis “one time or more
than one time,” R.G. said it was only once. The State then asked whether defendant made R.G.
put his mouth on defendant’s penis “one time or more than one time,” and R.G. answered,
“Twice.” R.G. later reiterated that defendant made him put his mouth on defendant’s penis on
another occasion. R.G. did not tell anyone what happened because he was afraid he would be
taken away from Jetty.
¶ 12 A.G. testified that he was born on July 18, 1998. He slept in Jetty’s room on the night of
February 24, 2011, because he “didn’t have time for [defendant] to be playing and feeling on
me.” In the middle of the night, A.G. heard Jetty run downstairs and Cynthia’s voice. When he
went to the stairs, he saw Cynthia holding an iron and Jetty trying to find out what had happened.
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A.G. returned to Jetty’s room and began crying because he “was happy that [defendant] had got
caught.”
¶ 13 A.G. then testified that when he was 12 years old, he and R.G. were in their bedroom and
defendant tried to make them suck his penis. On another occasion, A.G. was in his room when
defendant entered and tried to put his penis in A.G.’s mouth. R.G. ran into the room, but
defendant forced R.G. out and locked the door. A.G. then told defendant that he did not want to
do “this” anymore. After this point, defendant “turned all his attention” to R.G. A.G. initially
testified that he did not see defendant put his penis in R.G.’s mouth, but later admitted to being
present when defendant put his mouth on R.G.’s penis and R.G. “peed” into defendant’s mouth.
A.G. never told anyone because he was afraid that he would be removed from Jetty’s home.
¶ 14 Lynn Aladeen, a forensic interviewer with the Chicago Children’s Advocacy Center,
testified that she interviewed R.G. and A.G. on March 14, 2011. During R.G.’s interview, he
stated, in pertinent part, that “the man” came into his bedroom and sucked his penis. Another
time, the man sucked R.G.’s penis in the living room, and R.G. saw the man suck A.G.’s penis in
a bedroom. R.G. stated these incidents began when he was about eight years old, and the last
occurred around two weeks prior to the interview. R.G. also stated the man tried to make him
and A.G. suck the man’s penis.
¶ 15 During A.G.’s interview, he stated that his first “encounter” took place just before he
turned 11 years old when “the man made him and [R.G.] suck the man’s penis.” A.G. then
described “a few different incidents,” including one where “the man made A.G. suck his penis,”
and another where “the man tried to make [A.G.] and [R.G.] suck his penis.” A.G. also stated
that the man made R.G. watch A.G. suck the man’s penis.
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¶ 16 Defendant testified and denied any inappropriate contact with R.G. and A.G. He
confirmed that he was 47 years old on February 24, 2011, and that he spent the night at Jetty’s
home so that he could prepare Cornelius for an early morning medical appointment. Defendant
woke during the night to the smell of popcorn and noticed R.G.’s head on his arm. He then
moved R.G., getting onto the air mattress in the process. At this point, Cynthia started yelling at
him.
¶ 17 The jury found defendant guilty of three counts of predatory criminal sexual assault for
contact between defendant’s penis and R.G.’s mouth, defendant’s mouth and R.G.’s penis, and
defendant’s mouth and A.G.’s penis. The circuit court imposed the statutorily mandated sentence
of natural life imprisonment. See 720 ILCS 5/12-14.1(b)(1.2) (West Supp. 2011).
¶ 18 On direct appeal, defendant contended that (1) there was insufficient evidence to support
his conviction for contact between his penis and R.G.’s mouth, or in the alternative, that he was
entitled to a new trial because the evidence supporting this conviction was inadmissible; (2) he
was denied effective assistance by counsel’s failure to object to allegedly inadmissible or
nonexistent evidence of contact between defendant’s mouth and A.G.’s penis; and (3) the State
committed various instances of misconduct. We affirmed. People v. Allen, 2016 IL App (1st)
142135-U.
¶ 19 On October 17, 2017, defendant filed a pro se postconviction petition alleging he was
denied the effective assistance of counsel when, “on the day of trial in [the] courtroom,” trial
counsel advised that he would not call any witnesses although their testimony could have made a
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“big empact [sic]” on establishing defendant’s innocence. Attached to the petition were the
affidavits of defendant’s brother Tony Allen 3 and sister-in-law Patricia Ann Brown.
¶ 20 Tony stated that he loved defendant, did not know what happened in connection with the
charges, and that defendant, who was a churchgoer, did not “do these things that was [said] about
him.” Tony further stated that “we got boys and girl cousin[s] and everything we talk to them
[about] they say no way.” Tony also stated that he did not know what the charges were, but
“hope[d] and pray[ed]” that defendant did not do “this.” Tony finally stated that defendant was a
good man and the “things that been [said] are not true.”
¶ 21 Brown stated that although she did not know what happened, defendant was “not what
people are saying”; rather, he was quiet and “all about kids.” Brown further stated that she
prayed that defendant was innocent and that “everyone will know what happen[ed] when court is
ran right” and “the right people [are] in court.” Brown finally stated that the case should be put in
God’s hand, she thought that defendant was innocent, and the proceedings should be examined
again.
¶ 22 On December 21, 2017, the circuit court summarily dismissed the pro se petition as
frivolous and patently without merit in a written order. The court noted that defendant’s sole
claim for postconviction relief was that he was denied effective assistance by trial counsel’s
failure to present witnesses who could have impacted the trial, but he failed to identify the
potential witnesses. Rather, defendant attached affidavits from his brother and sister-in-law
vouching for his character. The court concluded that the “barebones” and conclusory allegation
in defendant’s petition failed to set forth a claim of ineffective assistance. Moreover, both
3 For clarity, we refer to Tony Allen by his first name.
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affiants admitted they did not know what happened and failed to “shed new light as to the merits
of the case.” On June 8, 2018, this court granted defendant leave to file a late notice of appeal.
¶ 23 On appeal, defendant contends that the circuit court erred in summarily dismissing his
petition because he presented an arguable claim that trial counsel was ineffective when he failed
to present character witnesses at trial in order to establish defendant’s reputation for chastity,
support defendant’s testimony that he was innocent, and undermine the State’s case. He argues
that a defendant’s reputation for morality and chastity is relevant in a prosecution for criminal
sexual abuse and notes that his petition included affidavits from two potential character
witnesses.
¶ 24 The Act provides a procedural mechanism through which a defendant may assert a
substantial denial of his constitutional rights in the proceedings which resulted in his conviction.
725 ILCS 5/122-1 et seq. (West 2016). A proceeding initiated under the Act is “not a substitute
for a direct appeal, but rather is a collateral attack on a prior conviction and sentence.” People v.
Davis, 2014 IL 115595, ¶ 13. The Act allows inquiry into constitutional issues arising in the
original proceeding that were not raised and could not have been adjudicated on direct appeal. Id.
Issues raised and 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 forfeited. Id.
¶ 25 At the first stage of proceedings under the Act, a defendant files a petition, which the
circuit court independently reviews and, taking the allegations as true, determines whether it is
frivolous or is patently without merit. People v. Tate, 2012 IL 112214, ¶ 9. A petition should be
summarily dismissed as frivolous or patently without merit only when it has no arguable basis in
either fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition lacks an arguable
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basis in fact or law when it “is based on an indisputably meritless legal theory or a fanciful
factual allegation.” Id. at 16. Fanciful factual allegations are those which are “fantastic or
delusional,” and an indisputably meritless legal theory is one that is “completely contradicted by
the record.” Id. at 16-17.
¶ 26 Because most petitions are drafted at the first stage by pro se defendants, the threshold
for a petition to survive the first stage of postconviction review is low. People v. Allen, 2015 IL
113135, ¶ 24. This low threshold, however, “does not excuse the pro se [defendant] from
providing factual support for his claims; he must supply sufficient factual basis to show the
allegations in the petition are ‘capable of objective or independent corroboration.’ ” Id. (quoting
People v. Collins, 202 Ill. 2d 59, 67 (2002)). We review the dismissal of a first stage
postconviction petition de novo. Allen, 2015 IL 113135, ¶ 19.
¶ 27 When considering a claim of ineffective assistance of trial counsel at the first stage of
postconviction proceedings, the defendant must show both that counsel’s performance was
arguably deficient, and that the defendant was arguably prejudiced by counsel’s deficient
performance. Hodges, 234 Ill. 2d at 17 (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)).
¶ 28 Generally, decisions about which witnesses to call at trial and what evidence to present
are matters of trial strategy and are immune from claims of ineffective assistance of counsel.
People v. Wilborn, 2011 IL App (1st) 092802, ¶ 79. “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 reasonably effective defense attorney, facing similar
circumstances, would pursue such a strategy.” (Emphasis and internal quotation marks omitted).
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Id. ¶ 81. An exception to the general rule exists for those cases when trial counsel’s chosen
strategy is so unsound that counsel failed to conduct any meaningful adversarial testing. People
v. West, 187 Ill. 2d 418, 432 (1999).
¶ 29 On appeal, defendant contends that it was unreasonable for trial counsel not to present
witnesses who would testify to his reputation for morality and chastity in order to support his
testimony that he was innocent and to undermine the State’s case. The question before this court
is therefore whether the petition met the low standard applied to pro se defendants at the first
stage of proceedings under the Act such that the circuit court erred in summarily dismissing it as
frivolous and patently without merit.
¶ 30 A postconviction petition “cannot consist of nonfactual and nonspecific assertions that
merely amount to conclusions that errors occurred at trial. [Citations.] Rather, a petition filed
under the Act must ‘clearly set forth the respects in which petitioner’s constitutional rights were
violated.’ ” Wilborn, 2011 IL App (1st) 092802, ¶ 54 (quoting 725 ILCS 5/122-2 (West 2008)).
Unsupported allegations of ineffective assistance are insufficient to avoid first-stage dismissal.
See People v. Ivy, 313 Ill. App. 3d 1011, 1019 (2000) (“the postconviction petition stated mere
conclusory allegations without factual support that appellate counsel was ineffective for failing
to challenge the denial of [the defendant’s] motion to withdraw his guilty plea”).
¶ 31 We find that the circuit court did not err in summarily dismissing defendant’s petition
because he failed to support his allegations of ineffective assistance of trial counsel. Our de novo
review of the petition shows that it merely offered conclusory statements that trial counsel failed
to have any of defendant’s witnesses testify at trial when those witnesses could have made a “big
empact [sic]” on his innocence, and defendant was informed that the witnesses would not be
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called “the day of trial in [the] courtroom.” However, the petition did not identify the witnesses
or explain their potential testimony and did not state where and when defendant informed trial
counsel about their existence. Moreover, although defendant attached affidavits from two family
members, he did not explain how their testimony would have benefited him or supported his
innocence, as both affiants stated that defendant was of good character but admitted that they did
not know the circumstance of the offenses in question. Additionally, although the petition
alleged that trial counsel told defendant the day of trial that defendant’s witnesses would not be
presented at trial, this allegation is contradicted by the record. Specifically, trial counsel stated at
a pretrial hearing that after a discussion with defendant, “we have decided that we are not going
to be calling any character witnesses in this case.” See People v. Torres, 228 Ill. 2d 382, 394
(2008) (the dismissal of a postconviction petition will be upheld when the allegations are
contradicted by the record from the original trial proceedings).
¶ 32 The petition merely contained vague, conclusory statements about counsel’s supposed
ineffectiveness in failing to present defendant’s witnesses without specifying any supporting
facts or evidence. See Allen, 2015 IL 113135, ¶ 24 (a pro se defendant is not excused from
providing factual support for his claim in order to show that the petition’s allegations are capable
of objective or independent corroboration). These conclusory and unsupported statements do not
overcome the presumption that trial counsel’s strategy was reasonable, or amount to an arguable
claim that defendant was prejudiced by counsel’s decision not to present these unidentified
witnesses at trial. See People v. Delton, 227 Ill. 2d 247, 258 (2008) (petition’s allegation that
counsel was “ineffective for failing to interview all possible witnesses to the incident” without
“alleg[ing] that someone actually saw or heard the incident” was “nothing more than a broad
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conclusory allegation of ineffective assistance of counsel”); People v. Lewis, 2017 IL App (1st)
150070, ¶ 16 (“Broad conclusory allegations of ineffective assistance of counsel are not
sufficient to avoid a summary dismissal.”). We thus conclude that the instant petition did not
raise an arguable claim of ineffective assistance of counsel.
¶ 33 Accordingly, we affirm the circuit court’s summary dismissal of the petition.
¶ 34 Affirmed.
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