2022 IL App (1st) 160907-U
SIXTH DIVISION February 10, 2022
No. 1-16-0907
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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. 94 CR 17108 ) PATRICK COMI, ) Honorable ) Evelyn B. Clay, Defendant-Appellant. ) Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court. Presiding Justice Pierce and Justice Harris concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of defendant’s successive petition for postconviction relief is affirmed where defendant failed to provide sufficient support for his actual innocence claim.
¶2 Defendant Patrick Comi appeals from the second-stage dismissal of his second successive
petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2014)). On appeal, he argues the circuit court erred in dismissing his petition where he made a
substantial showing of actual innocence based on two affiants who averred he was not at the scene
when the offense occurred. We affirm. No. 1-16-0907
¶3 I. BACKGROUND
¶4 Following a 1995 jury trial, Mr. Comi was found guilty of two counts of aggravated battery
with a firearm upon a peace officer, two counts of attempted first degree murder, and one count of
armed robbery, and sentenced to a total of 90 years’ imprisonment. The convictions stemmed from
a botched robbery of a currency exchange on February 15, 1992.
¶5 We affirmed on direct appeal and set forth a thorough description of the evidence at trial.
People v. Comi, No. 1-95-3441 (1997) (unpublished order under Supreme Court Rule 23). Here,
we summarize the trial evidence necessary to resolve the issue now on appeal, which concerns Mr.
Comi’s postconviction petition attaching affidavits from two witnesses who stated that he was not
present at the robbery.
¶6 At trial, Rose Albarran testified that she was a cashier at a currency exchange on the 5900
block of North Clark Street. On February 15, 1992, at about 8:50 a.m., she was opening the
exchange’s front door to work a lone shift. The front door led into a customer area, and a “half
door” led from the customer area into the back employee area. As Ms. Albarran opened the front
door, a man placed a firearm to her back, told her, “[i]t is a hold up,” and directed her to open the
safes in the employee area. She opened the safes, saw another person standing in the customer
area, and could tell there was a third person behind her out of view. The men ordered her to the
ground and tied her hands behind her back. The police arrived and she heard gunshots. Afterwards,
a police officer untied her.
¶7 Harlan Smolin, the owner of the currency exchange, testified that he went to the exchange
that afternoon and determined $200 was missing. There was an orange bag left at the scene that
contained $500 in quarters. The orange bag was inside a white plastic bag that contained about
$17,000.
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¶8 Karen Luc identified Mr. Comi in court. She testified that at about 9 a.m., she parked her
vehicle in front of the currency exchange and exited. She heard a male voice say, “[g]et down,”
and heard gunshots. Ms. Luc got down and, from five or six feet away, saw Mr. Comi run past her
with a firearm in his hand. On the evening of February 17, 1992, Ms. Luc saw a picture of Mr.
Comi on the television news, called the police, and signed a photograph of Mr. Comi that the
police showed her. On June 28, 1994, she went to the police station and identified Mr. Comi from
a lineup.
¶9 Chicago police officer Jacqueline Healy also identified Mr. Comi in court. She testified
that at about 9 a.m., she responded to the scene, entered the exchange, and announced her presence.
The door to the employee area opened. A man, who was crouched on the ground about 10 feet
from Officer Healy, shot her in the stomach with a semiautomatic firearm. Officer Healy shot back
and radioed for help. Behind the first man, she saw Mr. Comi holding a revolver and Toywell
Mitchell holding a semiautomatic firearm. The three men shot at her several times. Officer Healy
was shot in the left shoulder by Mr. Mitchell, threw herself to the ground, and remained motionless.
From the ground, Officer Healy saw the men exit through the exchange’s shattered window. On
June 28, 1994, she identified Mr. Comi from a lineup.
¶ 10 Chicago police officer James Schodtler testified that at about 9 a.m., he received a signal
that a police officer at the currency exchange needed assistance “right away” and stopped his
vehicle two or three doors from the exchange. He heard shots fired, saw windows break, and exited
his vehicle. Jason Francis crawled out of the exchange with a semiautomatic handgun and ran
down the sidewalk. Officer Schodtler pointed his firearm at Mr. Francis, yelled “police,” and told
him to stop, but Mr. Francis continued running. Officer Schodtler then fired at Mr. Francis.
Moments later, Officer Schodtler heard numerous gun shots before falling to the ground. He had
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been shot in his right upper hip.
¶ 11 Chicago police forensic investigator Thomas Reynolds testified that he and his partner
Officer James Hogan arrived at the scene at about 9:15 a.m. where they recovered evidence from
inside and outside the exchange. He collected a white plastic bag, inside of which was about
$17,000 in currency, and an orange bag containing $500 in quarters.
¶ 12 Rupert Pottinger testified that he knew Mr. Comi’s uncle, Steve Harvey, and had met Mr.
Comi. On February 15, 1992, at about 10 a.m., Mr. Harvey called Mr. Pottinger and asked him to
come to his house. When Mr. Pottinger arrived, Mr. Comi and Mr. Harvey asked him to drive Mr.
Comi and two other men, one of whom was named Bally, out of Chicago. Bally had a bandaged
hand and arm. Mr. Pottinger drove the three men to New York City, where they arrived at around
2:30 or 3 a.m., and dropped Bally off at a hospital. Mr. Comi told Mr. Pottinger they had gotten in
a “shootout with some people.” Mr. Pottinger drove back to Chicago alone and was later arrested
and charged with aiding a fugitive.
¶ 13 Chicago police sergeant Michael O’Brien testified that on February 15, 1992, at 5:30 p.m.,
he received the description and license plate number of a vehicle suspected to be involved in the
incident. After midnight, he drove near the intersection of West Farwell Avenue and North Ridge
Boulevard and observed an empty silver Sterling matching the description with a Virginia license
plate.
¶ 14 Chicago police detective Lawrence Aiken testified that on February 16, 1992, officers
learned the Sterling was registered to Mr. Comi in Virginia. That evening, Detective Aiken went
to a basement apartment that was two blocks from where the Sterling was found. The apartment
was occupied by a woman and Mr. Harvey. In a garbage dumpster behind the apartment, Detective
Aiken found a bag containing shoes, a jacket and sweatshirt with blood and corresponding bullet
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holes in the left sleeve, some carpet, and other clothing items. Mr. Francis was eventually arrested
in New York, and Mr. Mitchell was arrested later that summer in California.
¶ 15 Chicago police forensic investigator Ronald Ferrari testified that on February 16, 1992, at
about 2 p.m., he and his partner, Officer Tom Ginnely, photographed and recovered the Sterling,
which had bloodstains throughout the interior. Fingerprints were lifted from the vehicle, including
a fingerprint from the inside door handle to the rear driver-side door. Inside the glove compartment
were “various documents” bearing Mr. Comi’s name.
¶ 16 The State presented several fingerprint witnesses. Chris Harris, a police latent fingerprint
developer, testified that he received the orange bag recovered from the scene of the shooting and
lifted a fingerprint from the bag’s upper portion. Steven Mostacchio, a Chicago police lockup
keeper, testified that he fingerprinted Mr. Comi. Theatrice Patterson, a Chicago police latent
fingerprint examiner, testified that he received the inked fingerprints of Mr. Comi, Mr. Mitchell,
and Mr. Francis, and was able to match each of their prints to some piece of physical evidence.
Officer Patterson found that Mr. Comi’s fingerprint matched the print lifted from the orange bag,
Mr. Francis’s fingerprints matched two fingerprints lifted from the white plastic bag, and Mr.
Mitchell’s fingerprint matched the print lifted from the silver Sterling’s door handle.
¶ 17 Federal Bureau of Investigation special agent Wilfred Baptiste testified that in January
1994, he was assigned to locate Mr. Comi. In the early morning of January 28, 1994, Mr. Comi
was arrested in an apartment in the Bronx borough of New York City.
¶ 18 The defense called Michelle Latty, who testified that she lived in the Bronx, knew Mr.
Comi by the name Byron Mitchell, and had a daughter with him. She testified that Mr. Comi spent
the night with her on February 14, 15, and 16, 1992. In the early morning of February 16, Mr.
Comi woke up, put on clothes, said he would be back, and left.
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¶ 19 On cross-examination, Ms. Latty testified that in February 1992, she saw Mr. Comi two or
three times a week. Mr. Comi drove “several” vehicles, but Ms. Latty was not aware that he owned
a silver Sterling with a Virginia license plate. She did not know Mr. Comi lived in Virginia but
knew he had visited Virginia before. When Mr. Comi left her place on the morning of February
16, he said he had to take a friend to the hospital. He returned at around 8 or 9 a.m. that same
morning.
¶ 20 Mr. Comi testified that his full name is Byron Fitzgerald Mitchell, but he is also known as
Patrick Comi. He lived with his mother in the Bronx in February 1992 and had part ownership in
a carpet cleaning service in Virginia. On February 6, 1992, he lent a silver Sterling to Mr. Francis
and never saw the vehicle again. He identified the white plastic bag that was recovered at the scene
of the robbery as having come from the trunk of that car.
¶ 21 According to his testimony, on February 14, 1992, Mr. Comi spent the whole day at Ms.
Latty’s apartment and remained there until February 15 at about 9:30 a.m. He returned there on
the 15th at about 11 p.m. On February 16, at about 3 a.m., Mr. Francis drove by and honked his
horn. Mr. Comi looked outside and saw Mr. Francis, Mr. Mitchell, and Mr. Pottinger in a jeep.
Mr. Francis was “wrapped up” in coats and looked like he was in pain. Mr. Comi asked him what
was wrong. He said he was robbed and had been shot, and asked Mr. Comi to take him to the
hospital, which he did. Mr. Comi denied that he had any involvement in the alleged crimes.
¶ 22 On cross-examination, Mr. Comi testified that after he took Mr. Francis to the hospital, he
learned “what happened” two days later and learned that the police were looking for him about
five days “after that.” At that point, he went to London for about six months because he was scared
and then went to Jamaica for about one year. He then went to Florida for three or four days and
returned to New York in October 1993 to “turn [him]self in and get [his] life together.” However,
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he did not turn himself in.
¶ 23 Mr. Comi explained that he thought police were looking for him because his vehicle was
used. On the weekend of the incident, no one else was in Ms. Latty’s apartment with Mr. Comi
and Ms. Latty. The State asked whether anyone else could have verified where Mr. Comi was on
the date of the incident, and Mr. Comi stated his “friend in Queens” could have verified, as well
as the landlord who saw him there.
¶ 24 The jury found Mr. Comi guilty of one count of armed robbery as to Ms. Albarran, two
counts for aggravated battery with a firearm upon Officers Healy and Schodtler, and two counts
for the attempted first degree murder of Officers Healy and Schodtler.
¶ 25 On September 8, 1995, the trial court sentenced Mr. Comi to a total of 90 years’
imprisonment, which consisted of concurrent extended terms of 60 years for each of the two
attempted first degree murder counts, to run consecutively with a 30-year term for the armed
robbery count.
¶ 26 We affirmed on direct appeal, rejecting Mr. Comi’s arguments that the prosecutor
improperly bolstered the testimony of a State’s witness and that his extended-term sentence was
improper. People v. Comi, No. 1-95-3441 (1997) (unpublished order under Supreme Court Rule
23).
¶ 27 Since that time, Mr. Comi filed several unsuccessful collateral challenges, in all of which
we affirmed the circuit court on appeal. People v. Comi, Nos. 1-98-1782 (2000) (affirming the
summary dismissal of Mr. Comi’s initial postconviction petition under the Act); 1-01-1096 (2003)
(affirming the dismissal of Mr. Comi’s second postconviction petition); 1-04-3120 (2006)
(granting Mr. Comi’s counsel leave to withdraw and affirming the dismissal of Mr. Comi’s petition
for relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000))
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(unpublished orders under Supreme Court Rule 23).
¶ 28 On November 8, 2016, after filing the postconviction petition at issue on this appeal, Mr.
Comi also filed a motion for leave to file another successive postconviction petition, as well as a
motion for forensic testing. On appeal, we granted Mr. Comi’s counsel leave to withdraw and
affirmed the denial of both filings. People v. Comi, No. 1-17-0670 (2021) (unpublished summary
order under Supreme Court Rule 23(c)).
¶ 29 This appeal dates back to January 2006, when Mr. Comi filed a pro se section 2-1401
petition. On January 25, 2006, the circuit court appointed counsel for Mr. Comi. In February 2006,
Mr. Comi filed a pro se motion to file an amended section 2-1401 petition, alleging the State
amended his indictment by instructing the jury as to elements not in his charging instrument,
causing him to be convicted of “elements” for which he was not charged. He also claimed that one
of the jury instructions was “invalid,” “ambiguous, misleading, and confusing,” rendering it
unconstitutional; that the trial judge improperly had “ex parte communication” with the jury during
deliberations; and that the prosecutor made prejudicial comments during closing arguments. On
September 13, 2006, appointed counsel withdrew, and Mr. Comi retained a private attorney, who
filed an appearance.
¶ 30 On March 21, 2014, Mr. Comi, through his private attorney, filed an amended petition for
relief under both section 2-1401 and the Act, incorporating the claims from his pro se amended
section 2-1401 petition. Mr. Comi additionally alleged that he was actually innocent, based on the
affidavits of Mr. Harvey and Mr. Francis, both of whom were not available at the time of trial
because they were involved in their own criminal cases and could have invoked fifth amendment
privileges. He also claimed that had his attorney hired an independent expert to analyze the
fingerprint evidence on the orange bag at the scene, he would have been proven actually innocent
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because he “was never in this currency exchange and never touched this bag.”
¶ 31 Attached to the petition was the affidavit of Mr. Harvey, which was signed by Mr. Harvey
and dated January 7, 2006. In that affidavit, Mr. Harvey averred that he knew the people who
committed the armed robbery, and that he was falsely accused of the offense based on “the
admission of coercive statements introduced at [Mr. Harvey’s] trial.” He stated that Mr. Comi was
also falsely accused of the offense “in that he was not in Chicago” on February 15, 1992, and “any
testimony I made contrary to this was based on the advice of my trial counsel.”
¶ 32 Mr. Comi also attached to his petition the “affidavit” of Mr. Francis, which was signed, but
not dated or notarized. In this handwritten document, Mr. Francis stated that a notarized copy of
the affidavit was “forthcoming.” He further stated that Mr. Comi “had nothing to do with the ***
crime,” and Mr. Comi was “never at no time in Chicago, Illinois at the time of this *** crime.” He
claimed that he borrowed Mr. Comi’s vehicle and drove it to Chicago, and the vehicle was used in
the offense. He then returned to New York and told Mr. Comi he no longer had the vehicle. Mr.
Comi noticed Mr. Francis was bleeding and took him to the hospital. Mr. Francis averred that after
it was discovered that Mr. Comi’s vehicle was involved, he was “pressured to implicate him in the
crime.” He further stated that Mr. Comi “had no knowledge that his car was used in this offense.”
¶ 33 On May 19, 2014, the circuit court granted Mr. Comi leave to file the successive petition
on the basis that the prohibition against multiple postconviction petitions, and the cause and
prejudice standard, do not apply to claims of actual innocence. The petition proceeded to second-
stage postconviction proceedings.
¶ 34 On January 26, 2015, Mr. Comi filed a “submission of a notarized copy of Jason Francis’s
affidavit,” which included a copy of Mr. Francis’s affidavit notarized on January 9, 2015, and a
second affidavit stating the contents of Mr. Francis’s first affidavit were true and correct.
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¶ 35 Also on January 26, 2015, the State filed a motion to dismiss Mr. Comi’s successive
postconviction petition, arguing in relevant part that Mr. Comi (1) failed to explain why he could
not have presented the affidavits of Mr. Harvey and Mr. Francis in his pro se 2006 petition, and
(2) failed to show that he exercised due diligence in presenting his claim. The State also argued
the affidavits did not constitute newly discovered evidence, as they set forth facts Mr. Comi would
have known at or prior to trial. As to Mr. Harvey’s affidavit, the State asserted that Mr. Harvey
failed to provide any facts supporting his conclusions that Mr. Comi was falsely accused and not
in Chicago at the time of the offense. Mr. Harvey also did not explain why he did not come forward
until 2006, more than 10 years after Mr. Comi’s conviction. As to Mr. Francis’s affidavit, the State
argued that Mr. Francis likewise failed to explain why he did not come forward earlier. The State
further asserted that because of the lack of a date on the affidavit, there was no way of knowing
when Mr. Comi received the affidavit.
¶ 36 On May 13, 2015, Mr. Comi filed a response to the State’s motion, arguing in relevant part
that Mr. Harvey and Mr. Francis were unavailable earlier because their appeals were pending at
that time. He also asserted the affidavits were material and not merely cumulative because they
were relevant to the question of who was present when the offense was committed, and the
evidence was “sufficiently ‘conclusive’ ” because “if credited” by a trier of fact it “could change
the outcome.”
¶ 37 On June 18, 2015, the circuit court heard arguments on the State’s motion to dismiss. On
February 3, 2016, it entered a written order dismissing Mr. Comi’s petition as to both his section
2-1401 and postconviction claims. The court found in relevant part that the affidavits of Mr.
Harvey and Mr. Francis did not constitute newly discovered evidence, as both affiants could have
testified at trial. The court also found it was unlikely that any new evidence would change the
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outcome of Mr. Comi’s trial, and the record rebutted the affiants’ claims that Mr. Comi was not at
the scene.
¶ 38 II. JURISDICTION
¶ 39 The circuit court dismissed Mr. Comi’s postconviction petition on February 3, 2016, and
Mr. Comi timely filed his notice of appeal from that dismissal on February 23, 2016. We have
jurisdiction over this appeal pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const.
1970, art. VI, § 6) and Illinois Supreme Court Rule 606 (eff. July 1, 2017) and Rule 651(a) (eff.
July 1, 2017), governing appeals from final judgments in postconviction proceedings.
¶ 40 III. ANALYSIS
¶ 41 On appeal, Mr. Comi contends that the circuit court erred in dismissing his successive
petition, where he set forth a substantial showing of actual innocence supported by the affidavits
of Mr. Harvey and Mr. Francis.
¶ 42 The Act provides a three-stage method for persons serving criminal sentences 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, 9-10 (2009).
Generally, the Act contemplates the filing of only one postconviction petition, and section 122-3
of the Act provides that any claim of substantial denial of constitutional rights not raised in the
original or an amended petition is waived. People v. Orange, 195 Ill. 2d 437, 449 (2001); 725
ILCS 5/122-3 (West 2014). However, the procedural bar against successive proceedings will be
relaxed on either of two grounds: (1) “where the petitioner can establish cause and prejudice for
the failure to assert a postconviction claim in an earlier proceeding”; and (2) “where the petitioner
asserts a fundamental miscarriage of justice based on actual innocence.” People v. Robinson, 2020
IL 123849, ¶ 42. Where a request for leave to file a successive petition is granted, as is the case
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here, the petition is docketed for second-stage proceedings. Id. ¶ 43.
¶ 43 At the second stage of proceedings, the State is permitted to file responsive pleadings, and
“the circuit court must determine whether the petition and any accompanying documentation make
a substantial showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 245-46
(2001). “[A]ll well-pleaded facts that are not positively rebutted by the trial record are to be taken
as true.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The second stage of postconviction
review tests the legal sufficiency of the petition. People v. Domagala, 2013 IL 113688, ¶ 35. We
generally review de novo the circuit court’s second-stage dismissal of a postconviction petition.
Pendleton, 223 Ill. 2d at 473.
¶ 44 To establish an actual innocence claim, the supporting evidence must be (1) newly
discovered, (2) material and not merely cumulative, and (3) “of such conclusive character that it
would probably change the result on retrial.” People v. Edwards, 2012 IL 111711, ¶ 32. Newly
discovered means “the evidence was discovered after trial and could not have been discovered
earlier through the exercise of due diligence.” People v. Coleman, 2013 IL 113307, ¶ 96. Evidence
is material if it is “relevant and probative of the petitioner’s innocence,” and it is noncumulative if
it “adds to what the jury heard.” Id. Evidence is conclusive if it “would probably lead to a different
result” when considered along with the trial evidence. Id. The conclusiveness of the new evidence
is the most important element of an actual innocence claim. People v. Sanders, 2016 IL
118123, ¶ 47.
¶ 45 As our supreme court made clear in Robinson, the conclusiveness requirement means that
the court must find that the new evidence, when considered along with the trial evidence, would
“probably” lead to the defendant’s acquittal. 2020 IL 123849, ¶ 47. When considering the
conclusiveness of newly discovered evidence, the question is “whether the evidence supporting
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the postconviction petition places the trial evidence in a different light and undermines the court’s
confidence in the judgment of guilt.” Id. ¶ 48.
¶ 46 We find the circuit court properly dismissed Mr. Comi’s actual innocence claim because
these two affidavits were simply insufficient to place the trial evidence in a different light and they
do not undermine confidence in the judgment of guilty.
¶ 47 Mr. Harvey and Mr. Francis both provided affidavits that Mr. Comi was not in Chicago
when the offense occurred. Specifically, Mr. Harvey averred that both he and Mr. Comi were
“falsely accused of the above crime, in that [Mr. Comi] was not in Chicago on the above date,”
and that any testimony he gave to the contrary was “based on the advice of [his] trial counsel.”
Similarly, Mr. Francis averred that Mr. Comi was not in Chicago when the offense occurred, and
that he had borrowed Mr. Comi’s car and used it in the offense, without Mr. Comi’s knowledge.
¶ 48 These affidavits, both of which are lacking in detail, are insufficient to warrant further
proceedings. As outlined above, Mr. Comi was shown to have been present in Chicago by two
witnesses at the scene who positively identified him. In addition, the State presented the testimony
of Mr. Pottinger who testified that he drove Mr. Comi and two others from Chicago to New York
at the request of Mr. Harvey right after the crime occurred. Mr. Pottinger also testified that during
that trip, Mr. Comi told Mr. Pottinger that they had gotten into a shootout with some people in
Chicago. There was also expert testimony that Mr. Comi’s fingerprints were recovered from an
orange bag full of quarters recovered at the scene. While Mr. Comi suggested to the jury, just as
he argues on appeal, that those prints might have come from the white plastic shopping bag which
he had testified was in the trunk of his car that he loaned to Mr. Francis, the jury clearly rejected
that theory. Also, as the State notes, the only prints recovered on the white plastic bag belonged to
Mr. Francis.
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¶ 49 In light of the strong evidence presented at trial of Mr. Comi’s guilt, we cannot find that
the unsupported, conclusory statements of Mr. Harvey and Mr. Francis place the trial evidence in
a different light or undermine the court’s confidence in the judgment of guilt. Robinson, 2020 IL
123849, ¶ 48; see also People v. Jones, 2017 IL App (1st) 123371, ¶¶ 49-57 (an affidavit that was
“devoid” of key details was not likely to change the outcome of the defendant’s trial, where the
State presented several witnesses and physical evidence of the defendant’s guilt). We thus
conclude that the circuit court properly dismissed Mr. Comi’s successive postconviction claim.
¶ 50 IV. CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 52 Affirmed.
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