2025 IL App (4th) 241551-U
NO. 4-24-1551 NOTICE FILED This Order was filed under IN THE APPELLATE COURT September 16, 2025 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed OF ILLINOIS Court, IL under Rule 23(e)(1). FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County JUAN J. CERDA, ) No. 18CF253 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw and affirmed the trial court’s judgment summarily dismissing defendant’s postconviction petition.
¶2 Defendant, Juan J. Cerda, appeals the trial court’s order summarily dismissing his
petition for postconviction relief filed pursuant to the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2024)). On appeal, defendant’s appointed appellate counsel, the
Office of the State Appellate Defender (OSAD), moves to withdraw on the basis it can raise no
colorable argument the court erred in summarily dismissing defendant’s petition. For the reasons
that follow, we grant OSAD’s motion and affirm the court’s judgment.
¶3 I. BACKGROUND
¶4 In August 2018, a grand jury returned a bill of indictment charging defendant
with, in relevant part, one count of first degree murder (720 ILCS 5/9-1(a)(1) (West 2018)). The State alleged defendant intentionally killed his wife, Kenia Acosta, on July 13, 2018, by stabbing
her “about the torso, arms, and neck.”
¶5 The State filed the following relevant pretrial motions, all of which were granted
by the trial court: (1) a motion to compel defendant to provide a sample of his DNA pursuant to
section 5-4-3(a-3.2) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-4-3(a-
3.2) (West 2018)); (2) a motion in limine pursuant to section 115-7.4 of the Code of Criminal
Procedure (Criminal Code) (725 ILCS 5/115-7.4 (West 2020)), seeking to elicit testimony from
Kenia’s mother, Celia Acosta Perez, who had been in a 20-year romantic relationship with
defendant that ended in 2014, for the purpose of establishing defendant’s propensity to commit
acts of domestic violence; and (3) three separate motions in limine pursuant to section 115-10.2a
of the Criminal Code (id. § 115-10.2a), seeking to present hearsay evidence in the form of
testimony from three of Kenia’s friends and coworkers—Leah Evans, Alejandro Rivas, and Jose
Fernandez—regarding statements Kenia made to them describing acts of domestic violence
defendant had perpetrated against her prior to her death.
¶6 Defendant waived his right to a jury trial. He asserted the affirmative defense of
self-defense at trial. The matter proceeded to a bench trial, and the trial court ultimately found
defendant guilty. This court set forth in detail the trial evidence in defendant’s direct appeal.
People v. Cerda, 2023 IL App (4th) 220898-U, ¶¶ 10-42. For purposes of addressing the
potential merit of defendant’s postconviction claims in this appeal, we provide the following
summary of the evidence and findings by the trial court, which are contained in its written
judgment finding defendant guilty:
“As further explained below, the Court finds that the death of Kenia
Acosta on 7/13/2018 was the result of an unsuccessful murder-suicide by the
-2- defendant. This was the product of a well-thought-out plan that involved a
laying-in-wait manner of execution. The defendant was confident that Kenia had
to return to the home some time, and when she did, he would execute the plot. As
seen from the evidence, the trap was set on the evening of July 12th. The
defendant spent much of that night and the early morning of July 13th attempting
to get Kenia home so he could put the plan into play. The Court finds the
following facts were proven in support of the motive established above.
1. The testimony of the defendant was not credible; it was
inconsistent with the real evidence and was illogical given all the other
evidence in the case. Therefore, the Court gives little or no weight to his
testimony.
2. Defendant had a history of domestic violence against [Celia] as
well as Kenia herself. He was controlling and would threaten harm to
them if they left him.
3. Kenia became friends with some of her coworkers at Speedway,
where she typically worked from 2:00-10:00 p.m. Her friends from work
were [Rivas], [Evans] and [Fernandez].
4. On July 4, 2018, after work, [Rivas, Evans, and Fernandez] and
Kenia (along with Kenia’s three children[)] went to IHOP about 11:00
p.m. When she returned home, the defendant was upset that she went out
and he struck her with a belt leaving a mark. He took her truck and cell
phone, and he threatened her with a knife. The next day at work, Kenia
told [Fernandez, Evans, and Rivas] about the abuse and threats and
-3- showed them the marks on her leg.
5. Kenia moved in with [Evans] about three or four days after the
July 4th incident.
6. On July 12, 2018, Kenia told [Fernandez] that the defendant
threatened to kill himself if she did not come home. [Fernandez] took
Kenia to the police station, so she could tell the police about this threat,
because he did not want Kenia to get in trouble for not disclosing that
possibility in advance. After they left the police station, [Fernandez]
dropped Kenia off at [Evans’s], and he went to a family event.
7. Later on that day (about 11:00 p.m.), [Evans, Rivas, Fernandez
and] Kenia went to IHOP. When they left IHOP, [Fernandez] left
separately, while [Evans, Rivas] and Kenia went back to [Evans’s]
apartment. When they were at [Evans’s]house, the defendant texted Kenia
and told her that he was coming to [Evans’s] apartment. [Evans] did not
think that it was safe for Kenia to be there when the defendant arrived, so
they contacted [Fernandez] to come pick her up. Kenia left [Evans’s]
home with [Fernandez], and they drove around until about 4:00 a.m.
8. Sometime between 2:00-3:00 a.m., the defendant showed up at
[Evans’s] house and woke [Evans] and her brother up when he began
banging on the door. [Evans’s] brother answered the door; the defendant
told him that Kenia needed to leave their apartment and go home;
[Evans’s] brother advised him that Kenia was not there and that defendant
needed to leave the property or he would call the police.
-4- 9. Kenia’s mom, Celia, lived in Florida at the time. She was
awoken by a call from the defendant in the early morning on July 13, 2018
(between 3:00-4:00 a.m. Illinois time). The defendant directed Celia to
contact Kenia and tell her to come to the defendant’s home to pick up the
kids because he had an interview that morning and the victim was not
answering his phone calls. Despite having no intention to do so, she
advised the defendant that she would call Kenia. About 10 minutes later,
Celia called the defendant back to tell him a fabricated story that Kenia
was not answering for her either, but the defendant stated that Kenia just
arrived and the defendant hung up on Celia.
10. Meanwhile, [Fernandez] dropped Kenia off at the marital
residence in Capron and took a screen shot of the time (3:59 a.m.).
[Fernandez] took the screenshot because he was worried about Kenia. She
instructed [Fernandez] to call the police if she did not come back out of
the home. [Fernandez] went to wait for her at Casey’s [(a gas station)]
(which was nearby). Kenia did not return, so [Fernandez] eventually called
the nonemergency number for law enforcement. Jose did not remember
the exact time he called the police, but it appears that [a police officer]
was dispatched to the area about 5:20 a.m.
11. Sometime between 5:39 a.m. and 6:00 a.m. that morning, the
defendant called his niece, Rocio Cerda. [Rocio] was very close with the
family and babysat [Kenia’s and defendant’s] kids frequently. The phone
call consisted of the defendant saying, ‘Come get me because I’m dying.’
-5- She asked the defendant what was going on, and he did not respond. Rocio
then called her dad, and then she called 911. The call to 911 was about
6:00 a.m. After she received the phone call from the defendant, Rocio
noticed that the defendant had sent her two prior text messages that
morning[;] one was received at 4:37 a.m. and the other at 5:39 a.m. The
texts were in Spanish; the interpreters read those text messages into the
record with a summary as follows:
a. 4:37 a.m. text—‘Rocio, tell my brother that I put my kids
under his care. I left him two papers on the table. It’s the custody
for my kids and also in regards to [my] properties. All the
documents are on the safety box. The keys are in the glove
compartment—the glove compartment of my truck, my gray truck.
And to forgive me because I couldn’t ask for forgiveness from
everybody. The papers are on top of the refrigerator and the
vehicle titles are in the safety box and the keys for the pickup truck
are on top of the refrigerator as well. Forgive me for being a
coward but I could not handle this. Tell everybody that I could not
allow Kenia to live with someone—to live with a lesbian. That’s
why I did it. I ask for forgiveness to everybody.’
b. 5:39 a.m. text—‘Tell my brother Alvaro…but I loved
Kenia to death. Tell my kids that I was the best and to forgive me
for being a coward…sorry to everybody…’ Rocio clarified that the
text also referenced a desire to not let Kenia’s mom (Celia) take
-6- the kids.
12. The papers the defendant referenced were found, just as he
indicated in his text message, on top of the refrigerator. These handwritten
notes were in Spanish and as translated by the interpreter, they said:
a. ‘I, Juan J. Cerda, I give custody of my children to my
brother, Alvaro Cerda. I ask you not to share custody of my kids,
not even to Joanna or Alejandra. Only Alvaro can have custody—
total custody of my three children. Attentively, Juan J. Cerda.
Please take care of them, brother, and forgive me for being a
coward. This is for the best. I love you all and please take care of
them a lot. Thank you. Tell them I love them all three. You must
not let anyone take them from you, brother. Thank you. Juan J.
Cerda.’ ‘Brother, forgive me. I don’t want my children to see their
mom as a lesbian. I don’t want my children to suffer any trauma.
Forgive me everyone for this. I don’t want them to get close to my
body. Joanna or Alejandra or Kenia and Celia, they are the persons
that caused me a lot of bad things. Thank you to all. I love you and
forgive me please. With Kenia I let—went to—with Kenia to the
lesbian’s house. I love you.’
b. ‘I also give up my rights to Alvaro Cerda so he can sell
all my belongings. Attentively Juan J. Cerda.’
13. When law enforcement arrived [at] the residence, the door was
locked from the inside and they had to force entry. There were bloody
-7- footprints (later determined to be from defendant’s footprints) leading to a
room where Kenia was lying dead on her back and the defendant lying on
top of her unconscious but breathing. A box cutter and a folding knife
were found in the room with blood on them.
14. The evidence testified to by the experts confirmed that Kenia
had multiple knife wounds with some of them excise wounds and others
were stab wounds. They also found defensive wounds on Kenia. The
cause of death was a stab wound to the heart that could *** not have been
caused by the box cutter but could have been caused by the folding knife.
After killing Kenia, the defendant walked to the front door to lock it. It
was likely about this time that he sent the first text message to Rocio
referencing the notes on the refrigerator (which he had placed there prior
to Kenia returning to the home that morning). He cut himself thereafter
with the timing likely being about 5:39 a.m.—when he sent the second
text message and called Rocio. He then placed himself on top of Kenia to
die. However, the emergency response team arrived shortly thereafter and
saved his life.”
¶7 On September 27, 2022, the trial court sentenced defendant to 50 years of
imprisonment. Defendant appealed his conviction and sentence. This court affirmed on direct
appeal. See Cerda, 2023 IL App (4th) 220898-U.
¶8 On July 17, 2024, defendant filed the instant petition for postconviction relief, in
which he raised 16 separate claims of alleged denials of his constitutional rights. Defendant
raised mostly claims of ineffective assistance of trial and appellate counsel, but he also claimed
-8- he was denied his right to a fair trial because his jury waiver was invalid, the State made
improper remarks in its opening and closing statements, and the trial court considered facts not in
evidence in reaching its verdict. See U.S. Const., amends. IV, V, VI, XIV; Ill. Const. 1970, arts.
I, II. On September 23, 2024, defendant filed an amendment to the petition, in which he claimed
Evans, Celia, and Fernandez should not have been allowed to testify, his sentence was excessive,
and the State’s evidence was only sufficient to prove him guilty of second degree murder. Given
the number of postconviction claims, we will not set forth the factual allegations underpinning
each claim here but instead will provide the necessary facts when analyzing the potential merit of
each claim in the analysis section.
¶9 On October 29, 2024, the trial court entered a detailed written order summarily
dismissing defendant’s postconviction petition on the basis each claim raised therein was
frivolous or patently without merit. Defendant appealed, and OSAD was appointed to represent
him on appeal.
¶ 10 II. ANALYSIS
¶ 11 On appeal, OSAD contends it can raise no colorable argument the trial court erred
in summarily dismissing defendant’s postconviction petition. In its motion to withdraw, OSAD
has identified each of the claims raised in defendant’s petition and explained why each claim
lacks arguable merit.
¶ 12 A. The Act and the Trial Court’s Compliance Therewith
¶ 13 The Act provides a method for criminal defendants to “assert that their
convictions were the result of a substantial denial of their rights under the United States
Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009)
(citing 725 ILCS 5/122-1 et seq. (West 2006)). A defendant initiates postconviction proceedings
-9- by filing a petition that must, among other things, “clearly set forth the respects in which [the]
petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2024). At the first
stage of proceedings, “the trial court independently determines, without input from the State and
[w]ithin 90 days after the filing and docketing of the petition, whether the petition is frivolous or
is patently without merit.” (Internal quotation marks omitted.) People v. Anderson, 2015 IL App
(2d) 140444, ¶ 11; see People v. Swamynathan, 236 Ill. 2d 103, 113 (2010) (“The 90-day time
requirement is mandatory and a trial court’s noncompliance with the time requirement renders a
summary dismissal order void.”). A postconviction petition “may be summarily dismissed as
‘frivolous or *** patently without merit’ pursuant to section 122-2.1(a)(2) [(725 ILCS
5/122-2.1(a) (West 2006))] only if the petition has no arguable basis either in law or in fact.”
Hodges, 234 Ill. 2d at 16. A petition lacks an arguable legal basis if it is based on “an
indisputably meritless legal theory,” such as a legal theory “which is completely contradicted by
the record.” Id. “The summary dismissal of a postconviction petition is reviewed de novo.”
People v. Brown, 236 Ill. 2d 175, 184 (2010).
¶ 14 Initially, we note that we agree with OSAD no argument can be made the trial
court failed to comply with the procedural requirements of the Act in summarily dismissing
defendant’s petition. The court entered its order within 90 days of the filing of the amendment to
the petition and without input from the State—defendant filed the amendment on September 23,
2024, and the court entered its dismissal order on October 29, 2024. See People v. Watson, 187
Ill. 2d 448, 451 (1999) (“[W]hen a defendant who has filed an original post-conviction petition
subsequently files an amended petition, the 90-day period in which the court must examine the
defendant’s petition and enter an order thereon is to be calculated from the filing of the amended
petition.”).
- 10 - ¶ 15 B. Defendant’s Postconviction Claims
¶ 16 Defendant raised a total of 18 claims in his postconviction petition and the
amendment thereto. The majority of the claims alleged ineffective assistance of trial and
appellate counsel. Defendant also raised several claims he was denied a fair trial, a claim
challenging his 50-year prison sentence as excessive, and a claim that the State’s evidence was
only sufficient to prove him guilty of second degree murder. For the reasons discussed below, we
agree with OSAD that all of defendant’s claims lack arguable merit.
¶ 17 1. Defendant’s Claims of Ineffective Assistance of Trial Counsel
¶ 18 Defendant raised nine claims of ineffective assistance of trial counsel. Below, we
discuss in turn why each claim lacks arguable merit.
¶ 19 “To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” People v. Domagala, 2013 IL 113688, ¶ 36. “More specifically, a
defendant must show that counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). “[A] defendant must establish both prongs
of the Strickland test, such that the failure to establish either precludes a finding of ineffective
assistance of counsel.” People v. Cherry, 2016 IL 118728, ¶ 31. “At the first stage of
postconviction proceedings under the Act, a petition alleging ineffective assistance may not be
summarily dismissed if (i) it is arguable that counsel’s performance fell below an objective
standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Hodges, 234
Ill. 2d at 17.
- 11 - ¶ 20 a. Counsel’s Failure to Contest the State’s Section 5-4-3(a-3.2) Pretrial Motion for DNA Testing
¶ 21 Defendant claimed counsel was ineffective for failing “to challenge and/or oppose
and present arguments in regards to the State’s DNA motion.” According to defendant, counsel
failed to inform him of his right to refuse the collection of his DNA. Defendant’s claim is
meritless for several reasons. First, subsection a-3.2 of section 5-4-3 of the Corrections Code is
mandatory, and defendant therefore had no right to refuse the collection of his DNA. See 725
ILCS 5/5-4-3(a-3.2) (West 2018). (stating any person arrested and indicted for first degree
murder “shall be required to provide a specimen of blood, saliva, or tissue”). A challenge to the
statute’s constitutionality would have been unsuccessful in light of the United States Supreme
Court’s decision upholding the constitutionality of an analogous Maryland statute. Maryland v.
King, 569 U.S. 435, 465-66 (2013) (“When officers make an arrest supported by probable cause
to hold for a serious offense ***, taking and analyzing a cheek swab of the arrestee’s DNA is,
like fingerprinting and photographing, a legitimate police booking procedure that is reasonable
under the Fourth Amendment.”). Moreover, defendant failed to explain how the taking of his
DNA prejudiced him, and any attempt to argue prejudice would have been meritless considering
defendant testified Kenia stabbed him, meaning his DNA still would have been present at the
crime scene under his theory of the case.
¶ 22 b. Counsel’s Waiver of Opening Statement
¶ 23 Defendant claimed counsel was ineffective for waiving the opportunity to make
an opening statement because “it allowed the trial court to hear testimony without being aware of
[his] self-defense claim and that may have prejudiced [him] in the eyes of the trial court.”
Initially, we note defendant’s claim is frivolous on its face, as he merely speculates that
counsel’s waiver of making an opening statement “may have prejudiced” him. Such speculation
- 12 - is insufficient to state even the gist of an ineffectiveness claim. See People v. Patterson, 2014 IL
115102, ¶ 81 (“Satisfying the prejudice prong necessitates a showing of actual prejudice, not
simply speculation that defendant may have been prejudiced.”); People v. Garcia, 2024 IL App
(1st) 230325-U, ¶ 46 (citing People v. Johnson, 2021 IL 126291, ¶¶ 57-58) (“[A]llegations of
prejudice based on speculation are insufficient even when a petition is at the first stage of
proceedings under the Act.”). Defendant’s claim is also meritless because the decision to waive
opening statements is a matter of trial strategy and generally immune from ineffectiveness
claims. See, e.g., People v. Conley, 118 Ill. App. 3d 122, 127-28 (1983) (“[W]aiver of opening
statements has been recognized repeatedly as a matter of trial strategy ***, particularly in a
bench trial.”). Even if defendant could arguably satisfy the deficiency prong, it is not arguable he
was prejudiced by counsel’s decision to waive an opening statement given the overwhelming
evidence of his guilt. See Cerda, 2023 IL App (4th) 220898-U, ¶¶ 64-68 (conducting a
harmless-error analysis).
¶ 24 c. Counsel’s Failure to Object to Dr. Peters’s Use of Table Charts
¶ 25 Defendant claimed counsel was ineffective for failing to object to the use of table
charts as an aid in describing the victim’s stab wounds by Dr. Mark Peters, a forensic pathologist
who performed the autopsy of the victim. The charts listed the length and width of the victim’s
incised wounds and the length and depth of the stab wounds. Defendant alleged counsel should
have objected to Dr. Peters’s use of the charts because Dr. Peters did not personally make them
and therefore “could not [have] know[n] with certainty if [they] accurately depicted the
measurements of the wounds or were even measured correctly.” Defendant further alleged
counsel’s failure to object “caused prejudice where no substantial proof was presented that the
individual who made the chart was qualified or the charts were accurate and free from bias and
- 13 - influence.” Defendant’s claim is based on pure speculation and lacks arguable merit. See
Patterson, 2014 IL 115102, ¶ 81; Garcia, 2024 IL App (1st) 230325-U, ¶ 46.
¶ 26 d. Counsel’s Failure to Hire a Forensic Pathologist to Perform an Independent Autopsy
¶ 27 Defendant claimed counsel was ineffective for failing to “obtain an independent
expert to challenge the testimony and findings of Dr. Peters.” Defendant highlighted a portion of
Dr. Peters’s testimony in which he testified he did not measure the depth of the victim’s incised
wounds. According to defendant, “counsel’s failure to obtain an independent expert was
ineffective because Dr. Peters *** provided no medical or expert reasoning as to why he chose
not to perform any depth measurements of the wounds.” Defendant further alleged that “counsel
had the ability to obtain an independent expert to perform independent testing methods which
may have provided relevant information and/or results to contradict the prosecution’s theory of
the events.” It appears defendant’s allegations amount to a claim that counsel was ineffective for
failing to hire a forensic pathologist to perform an independent autopsy on the victim. However,
defendant’s claim is based on pure speculation that an independent autopsy would have yielded
helpful evidence and therefore lacks arguable merit. See Patterson, 2014 IL 115102, ¶ 81;
Garcia, 2024 IL App (1st) 230325-U, ¶ 46.
¶ 28 e. Counsel’s Failure to Challenge the Search Warrant for Defendant’s Cell Phone
¶ 29 Defendant claimed counsel was ineffective for failing “to challenge the
sufficiency of the warrant of law enforcement officials in regards to obtaining information from
[his] cellphone.” In support of his claim, defendant highlighted a portion of the testimony of
David Bird, a police officer with the Belvidere Police Department. Bird testified that he
performed an extraction on Rocio’s cell phone with her consent, which is how the State was able
- 14 - to introduce the text messages defendant had sent to her around the time of the victim’s death.
Contrary to defendant’s assertion, the State did not present any evidence that it had searched
defendant’s phone. Thus, defendant’s claim has no arguable basis in fact. See Hodges, 234 Ill. 2d
at 16.
¶ 30 f. Counsel’s Failure to Hire an Independent Expert to Swab for DNA
¶ 31 Defendant claimed counsel was ineffective for failing “to obtain an independent
expert to swab the carpeted area within the bedroom for other possible DNA evidence.” He
alleged “counsel’s failure to obtain an independent forensic expert to perform an independent
examination of the crime scene and perform additional chemical swabbing which may have
produced relevant evidence was ineffective.” Defendant’s claim is based on pure speculation that
such an independent forensic expert would have provided helpful evidence and lacks arguable
merit. See Patterson, 2014 IL 115102, ¶ 81; Garcia, 2024 IL App (1st) 230325-U, ¶ 46.
¶ 32 g. Counsel’s Failure to Hire an Independent Expert to Challenge the State’s DNA Evidence
¶ 33 Defendant claimed counsel was ineffective “for failing to subject the State’s
forensic evidence to a full adversarial test by failing to obtain an independent forensic expert to
challenge the results in regards to the testing and DNA evidence.” He alleged that “had trial
counsel obtained an independent forensic expert to perform independent testing, a test may have
produced a possible third-party profile which may have linked to Kenia’s boyfriend and if so
would have changed the trial court’s view in regards to [his] claim of self-defense.” Defendant’s
claim is based on pure speculation that such an independent forensic expert would have provided
helpful evidence and lacks arguable merit. See Patterson, 2014 IL 115102, ¶ 81; Garcia, 2024 IL
App (1st) 230325-U, ¶ 46.
- 15 - ¶ 34 h. Counsel’s Failure to Argue His Motion for Directed Verdict
¶ 35 Defendant claimed counsel was ineffective for failing to “present any evidence or
arguments” in support of his motion for directed verdict. Defendant’s claim is meritless. Given
the overwhelming evidence of his guilt, no argument can be made that a reasonable probability
exists the trial court would have entered a directed verdict if counsel had presented an argument
in support of his motion. See Cerda, 2023 IL App (4th) 220898-U, ¶¶ 64-68.
¶ 36 i. Counsel’s Failure to Hire a Handwriting Expert
¶ 37 Defendant claimed counsel was ineffective “for failing to obtain an expert in
handwriting to support [his] testimony he did not write the letters.” Defendant further alleged
that “had trial counsel obtain[ed] an expert to examine, fingerprint, and do handwriting samples
and comparisons, the results may have substantiated [his] testimony.” Defendant’s claim is based
on pure speculation that a handwriting expert would have provided helpful evidence and lacks
arguable merit. See Patterson, 2014 IL 115102, ¶ 81; Garcia, 2024 IL App (1st) 230325-U, ¶ 46.
We also note defendant acknowledged writing the letters in the text messages he sent to Rocio,
and he did not deny sending the messages. Cerda, 2023 IL App (4th) 220898-U, ¶ 67.
¶ 38 2. Defendant’s Claim He Was Denied a Fair Trial
¶ 39 Defendant also claimed he was denied a fair trial because (1) the State made
improper remarks in its closing statement, (2) the trial court considered facts not in evidence in
reaching its verdict, (3) his waiver of his right to a jury trial was invalid, and (4) Evans, Celia,
and Fernandez were not “proper” witnesses and should not have been allowed to testify.
¶ 40 a. Prosecutorial Misconduct
¶ 41 Defendant claimed he was denied a fair trial where the State made improper
remarks in its closing argument by describing his wounds as “self-inflicted” and the attack as
- 16 - “torture,” despite there having been no evidence presented at trial that he stabbed himself or
tortured the victim. “Every defendant is entitled to a fair trial free from the prejudicial comments
by the prosecution.” People v. Young, 347 Ill. App. 3d 909, 924 (2004). “The State is afforded a
great deal of latitude in presenting closing argument and is entitled to argue all reasonable
inferences from the evidence.” People v. Moore, 358 Ill. App. 3d 683, 693 (2005). “Further,
improper comments can constitute reversible error only when they engender substantial
prejudice against defendant such that it is impossible to say whether or not a verdict of guilty
resulted from those comments.” Id. Here, the State’s remarks amounted to reasonable inferences
drawn from the evidence, and, even assuming the remarks were improper, no argument can be
made they led to the guilty verdict. See Cerda, 2023 IL App (4th) 220898-U, ¶¶ 64-68.
¶ 42 b. The Trial Court’s Reliance on Facts Not in Evidence
¶ 43 Defendant claimed the trial court violated his right to a fair trial by relying on
facts not in evidence in reaching its verdict. Specifically, defendant challenged the court’s
finding that he “cut himself” because “no evidence or testimony was presented that [his] wounds
were self-inflicted.” Our supreme court “has held that the deliberations of the trial judge are
limited to the record made before him during the course of the trial.” People v. Wallenberg, 24
Ill. 2d 350, 354 (1962). “In a bench trial, it is the function of the trial court to determine the
credibility of witnesses, weigh the evidence, draw reasonable inferences therefrom, and resolve
any conflicts in the evidence.” People v. Petrov, 2023 IL App (1st) 160498, ¶ 54. Here, no
argument can be made it was improper for the court to draw the reasonable inference that
defendant’s wounds were self-inflicted. Id.
¶ 44 c. Invalid Jury Waiver
¶ 45 Defendant claimed he was denied a fair trial because his jury waiver was invalid
- 17 - due to the trial court’s inadequate admonishments regarding the nature of the charge against him.
Specifically, defendant alleged his jury waiver was invalid because the court did not use the
“exact” language of the first degree murder statute when admonishing him as to the nature of the
charge. Although OSAD neglected to address this claim in its motion to withdraw, we
nonetheless find it indisputably meritless. Aside from there being no requirement that a trial
court recite the statutory language setting forth a criminal offense verbatim when informing a
criminal defendant of the nature of the offense charged, defendant’s claim is also meritless
because the allegations in his petition are wholly irrelevant to the question of whether he
understood his jury waiver meant the facts of his case would be determined by a judge and not a
jury. See People v. Bannister, 232 Ill. 2d 52, 69 (2008) (“When a defendant waives the right to a
jury trial, the pivotal knowledge that the defendant must understand—with its attendant
consequences—is that the facts of the case will be determined by a judge and not a jury.”).
¶ 46 d. Testimony of Evans, Celia, and Fernandez
¶ 47 Although not entirely clear, it appears defendant claimed he was denied a fair trial
where Evans, Fernandez, and Celia were allowed to testify at his trial. Specifically, defendant
alleged Evans should not have been allowed to testify because she did “not have firsthand
knowledge of the crime nor was [she] present when the crime was committed.” Defendant’s
claim is based on an indisputably meritless legal theory, and we decline to address it beyond
noting Evans’s testimony had nothing to do with what occurred at the crime scene. Next,
defendant alleged Fernandez should not have been allowed to testify because his “story” was not
corroborated by the police. Again, defendant’s claim is based on an indisputably meritless legal
theory. There is no requirement that testimony must be corroborated for it to be admissible;
indeed, uncorroborated testimony, standing alone, can be sufficient to sustain a conviction under
- 18 - certain circumstances. See People v. Cruz, 162 Ill. 2d 314, 348 (1994) (“The basic rule is that all
relevant evidence is admissible unless otherwise provided by law.”); People v. Mack, 25 Ill. 2d
416, 420-21 (1962) (stating uncorroborated testimony alone may be sufficient to sustain a
conviction). Lastly, defendant alleged Celia should not have been allowed to testify because she
“was not a witness at all[;] she was [his] ex relationship for 20 years.” Assuming defendant’s
claim can be characterized as an attempt to argue the trial court erred in allowing Celia to testify
as a propensity witness, this court previously affirmed the court’s grant of the State’s
section 115-7.4 pretrial motion, and defendant’s claim is therefore barred by the doctrine of
res judicata. See People v. Harris, 206 Ill. 2d 1, 12 (2002) (“Issues that were raised and decided
on direct appeal are barred by the doctrine of res judicata.”); Cerda, 2023 IL App (4th)
220898-U, ¶¶ 54-60.
¶ 48 3. Excessive Sentence
¶ 49 Defendant claimed his 50-year prison sentence was excessive where the State
recommended a 40-year sentence at his sentencing hearing. However, we rejected defendant’s
excessive-sentence claim on direct appeal, and it is therefore barred by the doctrine of
res judicata. See Harris, 206 Ill. 2d at 12; Cerda, 2023 IL App (4th) 220898-U, ¶¶ 70-75.
¶ 50 4. Second Degree Murder
¶ 51 Defendant claimed the evidence presented at trial “constitute[d] not only
self-defense but if charge [sic] it should be the charge of second-degree murder” because “the
witness Fernandez and Kenia had made a plan to provoke or harm” him. Defendant’s claim is
meritless. As the trial court stated in its written order, “the Court did not believe much of
[defendant’s] testimony at trial and did not support any argument of self-defense.” Moreover,
defendant forfeited this claim by failing to raise it on direct appeal. See People v. Blair, 215 Ill.
- 19 - 2d 427, 443-44 (2005) (noting that in an initial postconviction proceeding the doctrine of
forfeiture bars claims that were or could have been raised on direct appeal).
¶ 52 5. Ineffective Assistance of Appellate Counsel
¶ 53 Finally, defendant claimed appellate counsel was ineffective for failing to raise on
direct appeal the claims advanced in his postconviction petition. However, because we have
determined each of the claims in his petition lack arguable merit, his claim of ineffective
assistance of appellate counsel likewise lacks arguable merit. See, e.g., People v. Pingelton, 2022
IL 127680, ¶ 64 (“Appellate counsel is not obligated to brief and argue every conceivable issue
on appeal, and a defendant cannot claim prejudice based on appellate counsel’s failure to raise an
issue that is not meritorious.”).
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we grant OSAD’s motion to withdraw and affirm the trial
court’s judgment.
¶ 56 Affirmed.
- 20 -