NOTICE 2026 IL App (5th) 250161-U NOTICE Decision filed 07/21/26. The This order was filed under text of this decision may be NO. 5-25-0161 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 15-CF-510 ) DAVID B. BEVERLY, ) Honorable ) Randall B. Rosenbaum, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
PRESIDING JUSTICE CATES delivered the judgment of the court. Justices Hackett and Clarke concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying, following a third-stage evidentiary hearing, the defendant’s amended successive postconviction petition. Because no argument to the contrary would have arguable merit, the defendant’s appellate counsel is grantedleave to withdraw, and the judgment of the circuit court of Champaign County is affirmed.
¶2 The defendant, David B. Beverly, appeals the judgment of the circuit court of Champaign
County that denied, following a third-stage evidentiary hearing, the defendant’s amended
successive postconviction petition. The Office of the State Appellate Defender (OSAD) was
appointed as the defendant’s appellate counsel. OSAD has concluded that this appeal lacks
arguable merit and, on that basis, has filed a motion for leave to withdraw as counsel, pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987), along with a supporting memorandum of law. OSAD
properly served the defendant with notice. This court gave the defendant the opportunity to file a
1 response to OSAD’s motion. The defendant has not filed a response. Having reviewed OSAD’s
Finley motion and memorandum, and the entire record on appeal, this court agrees with OSAD’s
assessment of this appeal. Therefore, we grant OSAD’s motion, and we affirm the judgment of the
circuit court.
¶3 I. BACKGROUND
¶4 The facts surrounding the defendant’s conviction, following a jury trial, of the offense of
first degree murder are described in detail in the defendant’s direct appeal. See People v. Beverly,
2019 IL App (4th) 160168-U. Of significance to this appeal, at the defendant’s trial, Dreshana
Caston testified that she was the girlfriend of the victim, Arsenio Carter, and that she witnessed
the murder. Beverly, 2019 IL App (4th) 160168-U, ¶¶ 4-5. She testified that she, Carter, and
Caston’s brother attended a barbecue at Oakwood Trace Apartments in Champaign on April 10,
2015, arriving there at approximately 4 p.m. or 5 p.m. Beverly, 2019 IL App (4th) 160168-U, ¶¶ 4-
5. After remaining in their parked vehicle for approximately 10 minutes, they left for 5 or 10
minutes, then returned. Beverly, 2019 IL App (4th) 160168-U, ¶ 6.
¶5 Upon their return, Caston saw the defendant and two other men. Beverly, 2019 IL App
(4th) 160168-U, ¶ 8. She testified that she could see the defendant’s face, and that she “recognized
his tattoos as well as his dreadlocks.” Beverly, 2019 IL App (4th) 160168-U, ¶ 8. Caston testified
that when she initially saw the defendant, he was wearing a black hoodie with the hood on, but
that the hood was not tightly drawn and the defendant’s dreadlocks were outside of it. Beverly,
2019 IL App (4th) 160168-U, ¶ 8. When Caston was asked how sure she was of her identification
of the defendant “at that time,” Caston testified that she was “ ‘pretty sure.’ ” Beverly, 2019 IL
App (4th) 160168-U, ¶ 9. She testified that she knew the defendant, that she had seen him on
approximately five prior occasions when the defendant was “ ‘out’ ” and “ ‘going into clubs and
2 stuff like that,’ ” and that the defendant had been to her house for a social event. Beverly, 2019 IL
App (4th) 160168-U, ¶ 9.
¶6 Caston testified that at the barbecue, the defendant walked up to her vehicle. Beverly, 2019
IL App (4th) 160168-U, ¶ 12. She was asked how sure she was of her identification of the
defendant as he approached her vehicle. Beverly, 2019 IL App (4th) 160168-U, ¶ 12. She testified,
“ ‘It was David.’ ” Beverly, 2019 IL App (4th) 160168-U, ¶ 12. She thereafter stated that she was
referring to the defendant. Beverly, 2019 IL App (4th) 160168-U, ¶ 12.
¶7 Caston testified that she could see the defendant’s tattoos, his face, and his hair. Beverly,
2019 IL App (4th) 160168-U, ¶ 12. She testified that it was light outside, and that she could see
“ ‘a blue glove on [the defendant’s] hand’ ” as the defendant approached her vehicle. Beverly, 2019
IL App (4th) 160168-U, ¶ 12. She asked, “ ‘[W]hy would [the defendant] just be walking around
with a blue glove on his hand unless he’s going to do something to somebody[?]’ ” Beverly, 2019
IL App (4th) 160168-U, ¶ 12. Caston was shown a picture of a blue glove, in the State’s Exhibit
No. 7, and “identified the glove in the picture as the same glove she saw [the] defendant wearing
at the time of the shooting.” Beverly, 2019 IL App (4th) 160168-U, ¶ 12.
¶8 Caston testified that as she tried to back her vehicle out of the parking lot, the defendant
pulled out a short black gun. Beverly, 2019 IL App (4th) 160168-U, ¶ 13. As Caston attempted to
drive away, the defendant fired the gun at Carter, from a distance of about three feet away from
the vehicle, shooting him in the chest. Beverly, 2019 IL App (4th) 160168-U, ¶ 13. Caston testified
that when she thereafter talked to the police, she pulled up a social media profile for the defendant
on her cell phone. Beverly, 2019 IL App (4th) 160168-U, ¶ 15. She testified that she knew the
defendant by the nickname “Glocc,” and that the social media profile listed its owner as “Glocc
Murdablock Krazi.” Beverly, 2019 IL App (4th) 160168-U, ¶ 15.
3 ¶9 On cross-examination, Caston testified that when first questioned by police officers, she
stated that the defendant was wearing light-colored jeans. Beverly, 2019 IL App (4th) 160168-U,
¶ 17. When she later spoke with police officers, she was shown a mug shot of the defendant, and
stated that he was the shooter. Beverly, 2019 IL App (4th) 160168-U, ¶ 17. On redirect
examination, Caston testified that the defendant pulled the glove from his pocket, and then held
the gun with the glove when he shot Carter. Beverly, 2019 IL App (4th) 160168-U, ¶ 18.
¶ 10 After this court affirmed the defendant’s conviction, but vacated his sentence and remanded
for resentencing due to an error in the defendant’s original sentencing (Beverly, 2019 IL App (4th)
160168-U, ¶ 126), the defendant filed, on April 1, 2021, a postconviction petition pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). The trial court denied
the petition following a third-stage evidentiary hearing, and this court affirmed. See People v.
Beverly, 2022 IL App (4th) 210677-U.
¶ 11 The defendant then sought leave to file two successive postconviction petitions, but
subsequently withdrew each petition. The first successive postconviction petition, which the
defendant sought leave to file on January 7, 2022, asserted a claim of actual innocence on the basis
of an affidavit from Kamari Ray-Davis, which the defendant claimed provided an account of the
shooting that contradicted Caston’s testimony that the defendant was the shooter. However, on
January 26, 2024, counsel, who was appointed to represent the defendant on the first successive
postconviction petition, filed a motion to withdraw the petition. Therein, counsel stated that
counsel and an investigator from counsel’s office “completed additional investigation,” and that
after “[c]onsidering the new information obtained from that investigation,” and consulting with
the defendant, the defendant decided that he no longer desired to move forward with the petition.
4 ¶ 12 The second successive postconviction petition, which the defendant sought leave to file on
January 19, 2023, asserted a claim of actual innocence on the basis of an affidavit from Beth
Emmons, which the defendant claimed provided an account of the shooting that contradicted
Caston’s testimony that the defendant was the shooter. However, on May 25, 2023, counsel who
was appointed to represent the defendant on the second successive postconviction petition filed a
motion to withdraw the petition. Therein, counsel stated that counsel and an investigator from
counsel’s office “completed additional investigation,” and that “[i]n light of the new information
obtained from that investigation,” and after a consultation with the defendant, the defendant
decided that he no longer desired to move forward with the petition.
¶ 13 On August 6, 2024, the defendant filed the amended successive postconviction petition
(petition) that is the subject of this appeal. In the petition, the defendant raised a claim of actual
innocence, in which he alleged that he was “legally and factually innocent of the charge of” first
degree murder that he had been convicted of in 2016, and for which he was presently incarcerated.
The defendant asserted that his actual innocence claim was based on the accompanying affidavit
of Tavell Bates.
¶ 14 The defendant alleged that Bates’s affidavit provided “newly discovered evidence” that
could not have been discovered earlier because Bates “was not from the area” where the murder
occurred, “and did not return to the area after the incident occurred.” He further alleged that “Bates
was not interviewed by police and did not make his identification of another individual known to
the [defendant] or [t]rial [c]ounsel before trial.” The defendant claimed that Bates’s affidavit was
“relevant and probative of the [defendant’s] innocence,” because it provided “firsthand eyewitness
testimony of the shooting,” and because it stated that the defendant “was not involved in the
5 shooting at any point.” Thus, the defendant contended, Bates’s affidavit contradicted “the principal
evidence resulting in [the defendant’s] conviction,” which was Caston’s testimony.
¶ 15 The defendant also alleged that Bates’s affidavit was “non-cumulative, as the trial record
contains only one firsthand account of the shooter,” and “Bates directly contradicts the State’s eye-
witness testimony involving the [defendant] and is supportive of his innocence.” He alleged that
Bates’s affidavit was conclusive for purposes of an actual innocence claim, because “while
contradicted by the testimony of one State witness,” the affidavit was “not positively rebutted,” as
“no evidence was presented at trial that” contradicted Bates’s averment “that he was present when
the shooting occurred,” and that no evidence was presented that Bates “could not have observed
what he states he saw.” The defendant asserted that “[t]he State failed to present any other
eyewitness testimony at the trial aside from Dreshanna [sic] Caston,” who, “when asked how sure
she was of her identification of the [defendant] at that time[,] *** stated she was ‘pretty sure.’ ”
¶ 16 The defendant argued that “[t]he State’s trial evidence was circumstantial and had only one
first-hand account identifying the [defendant] as the malefactor,” and that the State did not present
“any physical or scientific evidence that would positively rebut Bates’s statement that [the
defendant] was not the shooter.” He further argued that “the physical evidence that was presented
was not linked to [the defendant] despite extraordinary attempts by law enforcement, specifically
the use of a Michigan lab in an attempt to find [the defendant’s] latent prints on the one recovered
shell casing.” The defendant asserted that “[t]he State presented no evidence at trial of a firearm
connected by any forensic evidence to” him, and that there was not “any forensic evidence
demonstrating that [the defendant] had discharged a firearm, despite his arrest mere hours after the
shooting and, per the State’s theory, wearing the same pants as he was during the commission of
the offense and being in possession of a rubber glove the shooter was identified as having donned.”
6 ¶ 17 On September 20, 2024, the State filed a motion to dismiss the petition. On October 9,
2024, the trial court denied the State’s motion and ordered the State to file an answer to the petition.
On October 22, 2024, the State filed its answer. The trial court subsequently set the matter on
January 6, 2025, for a third-stage evidentiary hearing, which was continued until February 20,
2025, due to inclement weather.
¶ 18 At the February 20, 2025, hearing, Bates testified that he was presently incarcerated in the
Illinois Department of Corrections (IDOC), but that at the time of the shooting, in April of 2015,
he lived in the Springfield area. He testified that he had never lived in the Champaign area, but
that on the date of the shooting, he traveled to Champaign with two women whose full names he
did not know. He testified that he and the two women went to the barbecue, along with two of his
friends. When asked to name his two friends, Bates testified that he did not “want to involve their
names.” He testified that they arrived at the apartment complex “[a]fter 12” p.m., and that the
barbecue was already going on. He testified that there were approximately 50 people at the
barbecue, and that he did not know anyone other than the people he arrived with.
¶ 19 Bates testified that he did not know the defendant, or anyone who went by the nickname
“Glocc,” and did not see the defendant at the barbecue. He testified that “[m]aybe an hour or so”
after he arrived at the barbecue, he observed a black woman and a black man arguing in the parking
lot. Bates testified that the man was “[v]ery tall,” but Bates could not otherwise describe him, other
than to testify that he did not believe the man had any tattoos. He testified that the man and the
woman got into a truck. He testified that this man was not the shooter, and described the shooter
as having an afro, wearing a dark shirt, and having no tattoos. He testified that the first time he
saw the shooter, the shooter was wearing a “sweat hoodie,” but that the hoodie was not on the
7 man’s head; he testified that at the time of the shooting, the hoodie was on the man’s head. He
testified that the shooter “didn’t have any facial hair.”
¶ 20 Bates testified that the very tall man was the person who ended up being shot. He testified
that prior to the shooting, the shooter left the apartment complex, but then returned to where the
very tall man and the woman were sitting in a truck, and fired a single shot into the passenger side
of the truck, where the very tall man was sitting. Bates testified that he was “really close” to the
truck when the shooting occurred, although he could not give an approximate distance, testifying
that he was “not precise with the distance.” He agreed that he observed the shooter for a total of
approximately four minutes.
¶ 21 Bates testified that at some point after the shooting, the women he attended the barbecue
with showed him a picture of the defendant, who had been arrested for the shooting. He testified
that he told the women that the defendant was not the shooter. He testified that he observed the
shooting, and that it was “[a]bsolutely” his testimony that the defendant was not the shooter. When
asked why he did not contact the police, Bates testified, “I don’t know, scared maybe. Didn’t want
to get involved.” He testified that he was still in Champaign when he learned of the defendant’s
arrest, and that he had never before called the police to report a violent crime. When asked if he
thought other people would talk to the police about the shooting, Bates testified, “I didn’t think
about that.” He testified that he never returned to Champaign, that he could identify the shooter if
he saw him, and that the shooter was not the defendant.
¶ 22 Bates testified that he first met the defendant in 2023 at Menard Correctional Center. He
testified that the two men were “just talking,” and the defendant told Bates that the defendant was
at a barbecue in Champaign. Bates told the defendant that Bates was also at the barbecue. Bates
testified that the defendant, not Bates, first brought up the barbecue while speaking to someone
8 else, and that Bates “jumped in the conversation.” Bates testified that the defendant did not provide
Bates with any information about the shooting, and that after he told the defendant that he
witnessed the shooting, the defendant asked Bates to write an affidavit of what he remembered.
Bates testified that he was not pressured by the defendant. The defendant did not coerce Bates, ask
him to lie, or promise him anything. Bates testified that no one else promised him anything, that
he was receiving no benefit for his testimony, and that he was testifying of his own free will. When
asked why he was testifying, Bates testified that it was because he was “incarcerated for the same
thing,” that there are “a lot of other people that’s incarcerated wrongfully,” and that the defendant
was “incarcerated wrongfully.” He testified that no one, including the defendant, helped him write
his affidavit.
¶ 23 On cross-examination, Bates agreed that when he arrived at Menard Correctional Center
in 2023, it was his first time in an adult correctional institution, and that he had convictions for
first degree murder and residential burglary. He further agreed that after he wrote his affidavit in
this case, his relationship with the defendant “improved,” and the two men “became kind of
friendly.” Bates agreed that after he filed his affidavit, he was interviewed by Champaign police
officers. Bates again refused to name the two friends that he and the two females attended the
barbecue with, and agreed that he had refused to name them to the police officers who interviewed
him. He testified that the reason he refused to name the two friends was because he did not want
the police to contact them. He testified that he also refused to provide the police with additional
information about the two females, including phone numbers, information about their car, and their
place of residence. He agreed that “out of the four people that [he had] specifically identified who
could perhaps give some corroboration to [his] version of events,” he refused to provide additional
information about any of them. Bates further agreed that his two male friends were with him the
9 whole time at the barbecue, would have seen approximately the same things he saw, and that he
still refused to identify them because he did not want the police to contact them.
¶ 24 Bates testified that he did not remember telling police officers that there were no basketball
courts at the park near the apartment complex, and after being shown an aerial photograph of the
park, agreed that if he had walked where he said he had walked, he would have passed basketball
courts. He testified that he did not remember telling police officers that the shooter had a
moustache, and presently did not remember the shooter having any facial hair. He thereafter
testified that the shooter had a moustache, then stated, “I guess he had a moustache. He had
something on his face, but he did not have a lot of hair on his face. He had barely—he didn’t have
any hair on his face, but here (indicating) by his nose he had a thin hair.”
¶ 25 Bates testified that his present testimony was consistent with his description of the events
to police, even though he told police that the shooter and the woman were arguing prior to the
shooting, and that it was the very tall man who intervened to stop their argument. He testified that
when the shooter returned prior to the shooting, the shooter “walked right past” Bates, which
caused Bates to focus on him again. He testified that he could not recall whether he told police
officers that he did not see the shooter’s gun. He testified that when the shooter walked past him,
the shooter did not have a gun pulled out, and that the shooter pulled out his gun when he reached
the truck. Bates testified that he could not describe the gun. He agreed that his first statement to
police came approximately nine years after the shooting, but testified that he still believed he could
identify the shooter if he saw him.
¶ 26 On redirect examination, Bates testified that he did not receive protection in prison from
the defendant in exchange for writing his affidavit. He testified that he did not go to the apartment
complex to play basketball, and that he could have overlooked any basketball courts he saw on the
10 way. He testified that the argument he witnessed involved two people at first, the shooter and the
female, and that the very tall man intervened and directed the female to the truck. With regard to
the shooting, Bates testified that he saw the shooter’s arm extend forward toward the passenger
side window of the truck, but that he did not see a gun before that. Following Bates’s testimony,
the defense rested.
¶ 27 The State’s first witness was Officer Stephen Vogel, who testified that he was a detective
with the Champaign Police Department. He testified that on October 14, 2024, he met with Bates
at Menard Correctional Center. He testified that Bates initially told him that Bates and his two
male friends drove up to Champaign to meet the two females. Officer Vogel testified that Bates
would not reveal the names of his two male friends, and that Bates stated that he did not remember
where they stayed in Champaign, or any details about the vehicles he traveled in. He testified that
Bates told him that Bates had been at the barbecue for about one and a half to two hours prior to
the shooting. Officer Vogel testified that the shooting happened at approximately 6 p.m. He
testified that Bates “affirmatively denied” that there were basketball courts at the park near the
apartment complex, and that Bates told him the shooter had a moustache. On cross-examination,
Officer Vogel agreed that Bates had not recanted his affidavit in this case.
¶ 28 Sergeant Robert DeLong of the Champaign Police Department testified that he had been
involved in law enforcement for approximately 20 years, and that he was one of the original
responders to the shooting in this case. He testified that he subsequently became involved in a
“postconviction investigation with a Ms. Beth Emmons.” He identified Emmons’s affidavit, which
was admitted into evidence. He testified that when he interviewed Emmons’s sister in an effort to
find Emmons, she told him that Emmons “was a drug addict, and liar.” Sergeant DeLong testified
that he believed those were “her exact words.” He testified that when he located and interviewed
11 Emmons, her version of what happened on the date of the shooting differed from her affidavit. He
testified that she told him that she did not witness the shooting, whereas in her affidavit she stated
that she did.
¶ 29 Sergeant DeLong testified that Emmons claimed that she did not know the defendant, or
anyone in his family. He testified that he conducted an investigation to determine if that was true,
and found out that Emmons’s nephew was incarcerated with the defendant at the same facility at
the time Emmons’s affidavit was filed, and that during part of that time, Emmons’s nephew and
the defendant “were housed in the same unit, on the same deck, and in the same block with cells
directly across from one another.” He added, “They would have shared common yard time and
common area space.”
¶ 30 Sergeant DeLong also testified that he was familiar with Kamari Ray-Davis. He testified
that he interviewed Ray-Davis at the time of the shooting, and that Ray-Davis told him that Ray-
Davis “had not seen anything.” He testified that Ray-Davis stated that he heard a gunshot, but that
Ray-Davis “had nothing else of value to offer” about the shooting. On cross-examination, Sergeant
DeLong testified that Emmons “recanted her statement and stated she was no longer gonna be
involved in any more court proceedings.”
¶ 31 Following Sergeant DeLong’s testimony, the parties presented argument, and the trial court
took the matter under advisement. On February 25, 2025, the trial court entered the written order
that is the subject of this appeal. Therein, the trial court noted that in the petition, the defendant
claimed he was actually innocent because Bates allegedly witnessed the shooting and said the
defendant was not the shooter. The trial court stated that the defendant’s account contradicted the
testimony of Caston, “the State’s main witness at trial,” because Caston testified that she knew the
defendant, and that he was the shooter. The trial court added that “[a]lthough there was no gun
12 found and there was no DNA or fingerprints linking [the d]efendant to the shooting, Caston
identified [the d]efendant as wearing blue latex gloves during the shooting and [the d]efendant had
such gloves on his person at his arrest.” The trial court continued that “[o]n direct appeal, the
Appellate Court found that the evidence was not closely balanced and commented on Caston’s
testimony, the evidence of the blue latex glove and [the d]efendant’s weak alibi evidence.”
¶ 32 The trial court then thoroughly discussed the evidence presented at trial, as well as Bates’s
testimony at the hearing. The court stated that the testimony surrounding the affidavits filed by
Davis and Emmons supported “the argument that [the d]efendant may have found people in
[IDOC] who could assist him in filing affidavits which were later recanted.” The trial court
continued that “[e]ven before addressing what Bates said about the murder,” the court had
“concerns about his motive and interest in the case.” The court noted that Bates “testified that he
got involved *** because it was the right thing to do,” and because Bates “did not want an innocent
man in prison for something he did not do.” The trial court stated that nevertheless, Bates “had
several opportunities to do more than he has and he chose not to do so.” The trial court pointed out
that Bates claimed to know that police arrested the defendant within a day or two of the murder,
but that Bates waited approximately eight years to come forward with his affidavit in support of
the defendant. Bates also would not provide the names of the two male friends who were with him,
which led the court to conclude that it was “not credible to believe that Bates want[ed] to help [the
d]efendant but did not take steps to do so.”
¶ 33 The trial court also found that it was “not credible the way in which Bates says he found
out about the murder.” The trial court further found that “it was not credible that Bates would put
the important details of the offense in his affidavit when he claimed he never spoke to [the
d]efendant about the facts.” The trial court added that it could not “disregard that Bates is serving
13 a sentence for murder when considering his credibility” as a witness for the defendant. The trial
court then recounted several internal inconsistencies in Bates’s testimony, as well as
inconsistencies between Bates’s testimony and the testimony of other witnesses at the defendant’s
trial. The trial court noted, for example, that Bates testified that he arrived at the barbecue in the
early afternoon, after 12 p.m., and that it was only an hour or so later when the argument and
shooting occurred, whereas “[a]ll other witnesses said the argument and shooting occurred about
6 p.m.” Likewise, whereas Bates “only identified two men at the car, the victim and the shooter,”
Caston testified that others, including the defendant, were there. The trial court stated that the
foregoing suggested to the court that Bates was “not credible.”
¶ 34 The trial court stated that to determine if the outcome of the defendant’s trial probably
would have been different with Bates’s testimony, the court had to consider all of the evidence
presented at the trial. The trial court pointed out that “Bates did not know [the d]efendant at all and
only saw the perpetrator briefly,” whereas “Caston knew [the d]efendant and recognized him—he
had dreadlocks, tattoos and was wearing blue latex gloves which were found on” the defendant.
The trial court stated that “Caston had no time to fabricate and no motive to lie,” which suggested
that she was “telling the truth.” The trial court reiterated that at trial, the defendant presented a
weak alibi, and that the defendant’s trial “witnesses were vague on when they were with [the
d]efendant and they contradict[ed] each other in terms of where they were with him and when.”
¶ 35 The trial court stated that following a third-stage evidentiary hearing, the defendant had
“the burden of proof by a preponderance of the evidence to show that his Constitutional rights
were violated.” The court continued that the defendant “must ‘clearly and convincingly
demonstrate that a [new] trial would probably result in acquittal.’ ” The court added, “Said another
way, he must show that the new evidence is ‘so conclusive that it is more likely than not that no
14 reasonable juror would find [the defendant] guilty beyond a reasonable doubt.’ ” The court ruled
that Bates’s testimony was newly discovered, material, and not cumulative, but that after
considering Bates’s credibility, and weighing the evidence presented at the defendant’s trial, the
court concluded that the defendant had “failed to establish the foregoing propositions.”
Accordingly, the trial court denied the petition. This timely appeal followed.
¶ 36 II. ANALYSIS
¶ 37 As noted above, OSAD has filed a Finley motion to withdraw as counsel. In the legal
memorandum that accompanies its motion, OSAD states that it considered raising two issues:
(1) whether the trial court applied the correct burden of proof when it denied the petition following
the third-stage evidentiary hearing, and (2) whether the denial of the petition’s actual innocence
claim was manifestly erroneous. However, OSAD states that it concluded neither issue would have
arguable merit. For the following reasons, we agree.
¶ 38 The Act provides a means by which a criminal defendant may assert that, in the proceedings
that resulted in the defendant’s conviction, there occurred a substantial denial of the defendant’s
rights under the United States Constitution, the Illinois Constitution, or both. People v. Evans,
2013 IL 113471, ¶ 10 (citing 725 ILCS 5/122-1(a)(1) (West 2022)). The Act allows the filing of
only one postconviction petition without leave of court, and expressly states that any claims not
raised in the original petition or an amended petition are waived. Evans, 2013 IL 113471, ¶ 10.
However, a trial court may grant a defendant leave to file a successive postconviction petition in
order to avert a fundamental miscarriage of justice. People v. Harris, 2024 IL 129753, ¶ 43. In
such circumstances, the defendant must show actual innocence. Harris, 2024 IL 129753, ¶ 43.
¶ 39 When a defendant submits evidence in an attempt to demonstrate actual innocence, that
“evidence must be new, material, noncumulative, and, most importantly, of such conclusive
15 character as would probably change the verdict on retrial.” Harris, 2024 IL 129753, ¶ 47. For
purposes of an actual-innocence analysis, “conclusive” means the evidence, when considered
along with the trial evidence, would probably lead to a different result. Harris, 2024 IL 129753,
¶ 65. “The conclusive-character element requires only that the [defendant] present evidence that
places the trial evidence in a different light and undermines the court’s confidence in the judgment
of guilt,” and therefore “[p]robability, not certainty, is the key, as the trial court in effect predicts
what another jury would likely do, considering all the evidence, both new and old, together.”
Harris, 2024 IL 129753, ¶ 65.
¶ 40 At a third-stage evidentiary hearing, the trial court serves as the fact finder, and therefore
must determine witness credibility, decide the weight to be given to particular testimony and
evidence, and resolve any evidentiary conflicts. People v. Domagala, 2013 IL 113688, ¶ 34. At
the hearing, the defendant bears the burden of showing the denial of the defendant’s constitutional
rights by a preponderance of the evidence. People v. Coleman, 2013 IL 113307, ¶ 92. A trial
court’s denial of a postconviction petition after a third-stage evidentiary hearing is reviewed for
manifest error. Coleman, 2013 IL 113307, ¶ 98. Manifest error is error that is clearly evident, plain,
and indisputable. Coleman, 2013 IL 113307, ¶ 98. “Thus, a decision is manifestly erroneous when
the opposite conclusion is clearly evident.” Coleman, 2013 IL 113307, ¶ 98.
¶ 41 In this case, the trial court found that Bates’s testimony was new, material, and not
cumulative, but that because Bates was not credible, his testimony was not of such conclusive
character as would probably change the verdict on retrial. Accordingly, the trial court denied the
petition. We agree with OSAD that there is no arguable merit to the first potential issue OSAD
considered raising: whether the trial court applied the correct burden of proof when it denied the
petition following the hearing.
16 ¶ 42 Whether a trial court applied the proper legal standard is a question of law that this court
reviews de novo. People v. Robinson, 2021 IL App (1st) 171371, ¶ 52. As OSAD points out, even
though the trial court erroneously stated in its order that the defendant “must ‘clearly and
convincingly demonstrate that a [new] trial would probably result in acquittal,’ ” the trial court
preceded this statement by correctly stating that the defendant had “the burden of proof by a
preponderance of the evidence to show that his Constitutional rights were violated.” Likewise,
earlier in the trial court’s order, the trial court expressly stated that at a third-stage evidentiary
hearing, “[a] defendant has the burden of proof by a preponderance of the evidence.” Thus, both
times the burden of proof was stated by the trial court in its order, it was stated correctly. Because
the trial court twice correctly stated the defendant’s burden of proof, and because there is nothing
to indicate the trial court applied a different burden of proof, this court presumes the trial court
correctly applied the preponderance of the evidence burden of proof. See, e.g., People v. Kluxdal,
225 Ill. App. 3d 217, 223 (1991) (trial court is presumed to know the law and apply it properly, a
presumption that is rebutted only when the record affirmatively shows the contrary). As OSAD
also points out, the trial court denied the petition because the court found that Bates was not
credible. The trial court never stated that it found Bates’s testimony to be less than clear and
convincing. Instead, it rejected Bates’s testimony entirely, explaining in detail why it did so. In
addition, the trial court stated that to determine if the outcome of the defendant’s trial probably
would have been different with Bates’s testimony, the court had to consider all of the evidence
presented at the trial, which suggests the trial court was holding the defendant to a preponderance
of the evidence burden of proof, not a clear and convincing evidence burden of proof.
¶ 43 We also agree with OSAD that there is no arguable merit to the potential claim that the
trial court’s denial of the petition’s actual innocence claim was manifestly erroneous. The actual
17 innocence claim was based entirely upon the testimony of Bates. The trial court, acting as the
finder of fact, found that Bates was not credible. The trial court’s reasons for that finding are laid
out in detail above, and include skepticism of Bates’s professed motive for coming forward with
his affidavit, credibility issues with regard to how Bates claims to have learned of the
circumstances surrounding the defendant’s conviction, internal inconsistencies in Bates’s
testimony, and conflicts between Bates’s testimony and that of other trial witnesses, including
Caston. As OSAD aptly notes, the trial court’s decision “was based upon the court’s credibility
assessment and the strength of the trial evidence.” We conclude that the opposite conclusion to the
one reached by the trial court is not clearly evident, and, accordingly, that the trial court’s decision
was not manifestly erroneous. See, e.g., Coleman, 2013 IL 113307, ¶ 98.
¶ 44 III. CONCLUSION
¶ 45 For the foregoing reasons, we agree with OSAD that the two potential issues it considered
raising in this appeal are without arguable merit. Moreover, this court’s examination of the entire
record establishes that this appeal presents no other issues of arguable merit. Therefore, the motion
of appointed counsel to withdraw is granted, and the judgment of the circuit court of Champaign
County is affirmed.
¶ 46 Motion granted; judgment affirmed.