NOTICE 2025 IL App (4th) 240770-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-0770 March 3, 2025 not precedent except in the Carla Bender limited circumstances allowed th 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County ANTWONE LAMONT CREATER, ) No. 17CF970 Defendant-Appellant. ) ) Honorable ) William A. Yoder, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justices Knecht and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding defendant’s amended successive postconviction petition, advancing an actual innocence claim based on the affidavit of a key witness at trial, was properly dismissed at the second stage because the affidavit attached to the petition was not of such a conclusive character that it would probably change the result at retrial.
¶2 Defendant, Antwone Lamont Creater, appeals the second stage dismissal of his
amended successive postconviction petition, wherein he claimed, based on an affidavit prepared
by Kacey Wheeler, a key witness, he was actually innocent of unlawful delivery of a controlled
substance (720 ILCS 570/401(d)(i) (West 2016)). Defendant argues the dismissal was improper,
since Wheeler’s new, material, and noncumulative affidavit would probably result in a different
verdict on retrial. We disagree and affirm.
¶3 I. BACKGROUND
¶4 The facts of this case are fully set forth in People v. Creater, 2020 IL App (4th) 180126-U, and People v. Creater, 2022 IL App (4th) 200431-U. Thus, we include only those
facts necessary to resolve this appeal.
¶5 At defendant’s jury trial, Wheeler testified she suffered from drug addiction, had a
criminal record, and became a confidential informant to receive leniency from the State for a
pending felony driving offense and get defendant, her supplier, off the streets. On September 5,
2017, Wheeler used her cell phone to call defendant and arrange to buy heroin from him. The
police were not privy to this conversation. Thereafter, the police searched Wheeler and gave her
$160 in prerecorded buy money.
¶6 Wheeler then texted defendant, “Oh and I need my methadone bottle or I’m going
to get in trouble [and] they won’t give me my methadone today.” Defendant instructed Wheeler
to go to several different locations before directing her to wait at a bus stop near his home.
Wheeler, who was being driven to the different locations by the police, stated defendant sent her
to different locations because “he was seeing police and *** he was scared.” Defendant texted,
“Man I hope you not saying [sic] me up.” Defendant immediately corrected his text to “Setting
me up.”
¶7 Thereafter, defendant texted Wheeler ,“C. He gonna see you up there [at the bus
stop] so wait for him to get up there to you.” Defendant texted Wheeler, “Ok. He know you,” and
“Give him my dust.” Wheeler then texted defendant, “Your cousin just drove past me.”
¶8 Wheeler testified Dorian Parker, whose wife was defendant’s cousin, came back
to the bus stop, she gave Parker $140 in prerecorded buy money, and Parker gave her one packet
of heroin and her methadone bottle. Defendant then arrived at the bus stop. He asked Wheeler,
“ ‘This is it; isn’t it?’ ” Wheeler stated, “[Defendant] was laughing about, you know, that [she]
was setting him up.”
-2- ¶9 Parker, who agreed to testify in return for the dismissal of two nonprobationable
felonies arising from this incident, along with an open plea to an amended probationable count,
stated he was addicted to heroin. On September 5, 2017, defendant gave Parker two packets of
heroin and told him to give them and an empty methadone bottle to Wheeler at the bus stop. In
return, defendant said he would give Parker a bag of heroin. Parker completed the transaction as
requested. Defendant then arrived at the bus stop. Parker stated, “I think [defendant] asked
[Wheeler] if she set him up or something to that nature.” Within 30 seconds of Parker and
defendant leaving the bus stop, they were stopped by the police.
¶ 10 During his testimony, Parker admitted signing an affidavit exonerating defendant.
The affidavit, prepared 11 days after defendant was charged, was notarized and indicated the
statements in it were “true[ and] correct” and made “under penalties of perjury.” It said
defendant had no knowledge of or involvement with the drug transaction and Parker implicated
defendant because Parker was addicted to heroin and did not want to be arrested, as he would be
forced to detox in jail. The affidavit indicated Parker “mentioned [defendant] because [he]
thought [he] could bargain someone else off for [his] freedom.” The affidavit said Parker was
“beyond [his] withdrawals[ ] and completely competent and sober” and could not “let another
person go down for something [he] did.”
¶ 11 Although Parker admitted signing the affidavit, he claimed he did not write the
affidavit, never read it, and did not “really” know its contents. He said he signed it because he
was feeling ill from detoxing and defendant and defendant’s brother, who were also in jail with
him, pressured him to do so.
¶ 12 Police officers testified to having observed Parker and Wheeler sitting next to
each other on a bench at the bus stop. They saw Wheeler lay money on the bench, Parker hand
-3- Wheeler something, and Parker pick up the money. The police then saw defendant approach the
bus stop and leave with Parker.
¶ 13 When Parker and defendant were stopped, the police found $1,772 on defendant
as well as the cell phone he used to contact Wheeler. The police also found $140 in prerecorded
buy money and an additional $121 on Parker. The police received from Wheeler only one packet
of heroin. They questioned her truthfulness after the drug transaction because she kept $20 of the
prerecorded buy money and turned over only one packet of heroin. The packet recovered was
kept in a proper chain of custody, and subsequent testing revealed the substance weighed 0.1
grams and tested positive for heroin.
¶ 14 During a postarrest interview, defendant told the police Wheeler contacted him
only about her methadone bottle, which he directed Parker to give her. He denied ever
instructing Parker to deliver drugs to Wheeler.
¶ 15 The jury found defendant guilty of unlawful delivery of a controlled substance.
The trial court sentenced defendant as a Class X offender to 15 years in prison. Defendant filed a
motion to reconsider his sentence, which the court denied. Thereafter, defendant appealed,
arguing only that his sentence was excessive. This court affirmed. Creater, 2020 IL App (4th)
180126-U, ¶ 30.
¶ 16 While defendant’s direct appeal was pending, he petitioned pro se for
postconviction relief. See 725 ILCS 122-1 et seq. (West 2020). In his lengthy petition, he raised,
among other issues, an actual innocence claim. As the trial court observed, “Defendant
appear[ed] to contend that had [Jonathon] Jamerson testified he wrote the *** affidavit for ***
Parker, which was then signed by *** Parker in the presence of a notary public, that such
testimony would establish [defendant’s] innocence.” The court disagreed with defendant,
-4- finding, “At best, any such testimony by *** Jamerson would merely impeach the trial testimony
of *** Parker.” The court summarily dismissed the petition, defendant appealed, and the Office
of the State Appellate Defender (OSAD) moved to withdraw. We granted OSAD’s motion to
withdraw and affirmed the summary dismissal of defendant’s pro se postconviction petition.
Creater, 2022 IL App (4th) 200431-U, ¶ 77.
¶ 17 On April 22, 2022, defendant moved pro se for leave to file a successive
postconviction petition. In his petition he raised, among other issues, another actual innocence
claim. Defendant asserted Wheeler testified falsely about the incident at his jury trial. Attached
to defendant’s motion was Wheeler’s affidavit, which provided:
“I remember convincing [defendant] to meet me and bring me the lid to
my methadone container. I was really trying to put him in a position to get caught
handing me drugs. [Defendant’s] only intention was to bring me my methadone
cap.
I was an addict and at the time I didn’t want to go back to prison on some
of my own charges. So instead, I did my best to not only implicate [defendant],
but I also feel that I conived [sic] to involve and encourage [defendant] to feel
sorry for me being sick from withdrawls [sic] and I tried to convince him to hand
me something that would get him arrested.
In retrospect, and mostly, now that I’m clean and in my right mind, I find
it hard to live with myself, knowing that [defendant] is still in prison all because I
couldn’t handle my own and I conived [sic] to put the pressure on him. I feel
terrible and I wish I could take it back.
I believe [defendant] deserves to be outside of prison, pursing [sic] a
-5- career and loving on his family. I feel terrible and I hope that I can somehow help
him, since I’m the one who conived [sic] to put him there.
I respectfully apologize to [defendant] for my unacceptable and addicted
behavior and choices and on all others whom I negatively affected or
inconvenienced.”
Wheeler signed the affidavit “under penalties of perjury” before a notary public on April 8, 2022.
¶ 18 On February 17, 2023, the trial court granted defendant’s motion for leave to file
a successive postconviction petition, advanced the case to the second stage of postconviction
proceedings, and appointed counsel to represent defendant.
¶ 19 In January 2024, appointed counsel filed an amended postconviction petition,
raising an actual innocence claim. The petition alleged, based on Wheeler’s affidavit, Wheeler
convinced defendant to bring her the methadone bottle because she wanted to put defendant in a
position where he would get caught delivering drugs. The petition alleged this actual innocence
claim was viable because Wheeler’s affidavit was (1) new, i.e., prepared 14 days before
defendant moved to file a successive postconviction petition; (2) material and noncumulative,
i.e., relevant and probative of defendant’s innocence; and (3) of a conclusive character, i.e.,
without Wheeler’s testimony, the only evidence before the jury was Parker’s suspect testimony
concerning the hand-to-hand drug transaction.
¶ 20 The State moved to dismiss the amended petition. It argued Wheeler’s affidavit
did not support an actual innocence claim because it did not exonerate or discredit the evidence
presented at trial but, rather, merely impeached Wheeler’s trial testimony.
¶ 21 In May 2024, the trial court granted the State’s motion to dismiss. The court
found Wheeler’s affidavit was not of such a conclusive nature that it would probably change the
-6- outcome on retrial. Specifically, the court determined her affidavit did not contain any new facts
to contradict her testimony or the testimony of any other witnesses. Accepting Wheeler’s
affidavit as true, the court found it constituted an “apology letter” to defendant that, at best,
would impeach her trial testimony.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Defendant argues the dismissal of his amended successive postconviction petition
was improper. He contends his amended successive petition made a substantial showing of actual
innocence based on Wheeler’s newly obtained affidavit. According to defendant, Wheeler’s
affidavit contradicted her trial testimony such that a retrial in light of the affidavit would result in
a different verdict.
¶ 25 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022))
provides a three-stage process for the adjudication of a postconviction petition. People v.
Johnson, 2017 IL 120310, ¶ 14. When a motion for leave to file a successive petition is filed, the
petition must satisfy an initial threshold. See People v. Lee, 2016 IL App (1st) 152425, ¶ 42.
Specifically, “the trial court must first determine whether the petition (1) states a colorable claim
of actual innocence [citation] or (2) establishes cause and prejudice.” Id. “This standard is higher
than the normal first-stage ‘frivolous or patently without merit’ standard applied to initial
petitions.” Id. (quoting People v. Edwards, 2012 IL 111711, ¶¶ 25-29).
¶ 26 Here, the trial court found defendant’s petition stated a colorable claim of actual
innocence, and it advanced defendant’s petition to the second stage of postconviction
proceedings. When a defendant’s petition is advanced to the second stage, all the defendant’s
allegations not affirmatively rebutted by the record are taken as true, and the question is whether
-7- the allegations show a substantial constitutional violation. Id. ¶ 46. “ ‘[T]he “substantial
showing” of a constitutional violation that must be made at the second stage [citation] is a
measure of the legal sufficiency of the petition’s well-pled allegations of a constitutional
violation, which if proven at an evidentiary hearing, would entitle [the defendant] to relief.’ ”
(Emphasis in original.) Id. (quoting People v. Domagala, 2013 IL 113688, ¶ 35). “The
substantial showing required to avoid dismissal at the second stage is greater than the standard
that must be satisfied to obtain leave to file a successive petition.” People v. Robinson, 2020 IL
123849, ¶ 43.
¶ 27 Here, the trial court found defendant’s petition failed to make a substantial
showing of a constitutional violation, and, thus, it dismissed his petition at the second stage. We
review this dismissal de novo. Lee, 2016 IL App (1st) 152425, ¶ 50.
¶ 28 Defendant contends his amended successive petition should not have been
dismissed because, with Wheeler’s affidavit, he made a substantial showing of actual innocence,
a due process claim for purposes of these postconviction proceedings. See People v. Washington,
171 Ill. 2d 475, 487 (1996) (“[T]he use of false testimony underlying a conviction is a due
process violation.”). To establish a claim of actual innocence, the supporting evidence must be
(1) newly discovered, (2) material and not cumulative, and (3) of such a conclusive character it
would probably change the result on retrial. Edwards, 2012 IL 111711, ¶ 32. “Newly discovered
evidence” is evidence discovered after trial that could not have been discovered earlier through
the exercise of due diligence. Robinson, 2020 IL 123849, ¶ 47. Evidence is “material” if it is
relevant and probative to the defendant’s innocence, and it is “noncumulative” when it adds to
what the jury heard. Id.
¶ 29 “The conclusive character of the new evidence is the most important element of
-8- an actual innocence claim.” Id. Evidence is of a conclusive character if it would probably change
the result on retrial. Id. The evidence need not be entirely dispositive to likely alter the result on
retrial. Id. ¶ 48. Probability, rather than certainty, is key to whether the fact finder would reach a
different result after considering the new evidence within the context of the other evidence
presented at trial. Id. Ultimately, when the relief sought in a postconviction petition is based on
newly discovered evidence showing actual innocence, we consider whether the evidence
supporting the postconviction petition places the trial evidence in a different light and
undermines our confidence in the defendant’s guilt. Id. ¶ 47. Put another way, the new evidence
must establish “it is ‘probable’ or ‘more likely than not’ a jury would acquit [the] defendant after
a new trial where the new evidence in th[e] case is considered alongside the original trial
evidence.” People v. Whalen, 2020 IL App (4th) 190171, ¶ 103.
¶ 30 Here, even though Wheeler’s affidavit may be new, material, and noncumulative,
we cannot conclude it is of a conclusive character, i.e., that her affidavit would probably result in
a different verdict on retrial. In her affidavit, Wheeler never exonerates defendant. She does not
expressly recant her previous testimony, instead merely providing an alternate explanation for
how the transaction was initiated and her motivation for targeting defendant. She never attests
she lied at trial or defendant was not involved with Parker giving her heroin in return for $140.
Rather, she states she feels bad because she wanted defendant to be caught giving her drugs or
“something,” presumably heroin to help her with her withdrawal, that would justify the police
arresting him. Specifically, she expressly states she was hoping to “involve and encourage
[defendant] to feel sorry for me being sick from withdrawls [sic] and I tried to convince him to
hand me something that would get him arrested.” Apologizing to defendant for having him
deliver heroin to her would not change the result on retrial, as the evidence would still indicate
-9- defendant was involved in delivering heroin to Wheeler. The only difference added with
Wheeler’s affidavit is that Wheeler is now remorseful for her actions. At best, this would
discredit, contradict, or impeach Wheeler’s testimony, which is not enough to make a substantial
showing of actual innocence. See People v. Smith, 177 Ill. 2d 53, 83 (1997) (“ ‘Newly
discovered evidence, the effect of which is to discredit, contradict and impeach a witness, does
not afford a basis for the granting of a new trial.’ ”) (quoting People v. Holtzman, 1 Ill. 2d 562,
568 (1953)).
¶ 31 Moreover, even if Wheeler’s affidavit could do more than discredit her on retrial,
other evidence, aside from Wheeler’s testimony, implicates defendant in delivering the drugs.
Text messages between defendant and Wheeler show Wheeler had previously asked defendant to
bring her something when she asked him to also bring her methadone bottle to her. Although
“something” was never specified in the text messages, the record suggests the item was illegal
and valuable. Defendant took great pains to avoid arrest when transferring the “something” to
Wheeler, continually changing where they were to meet for the delivery because he was seeing
police. He even commented about his concerns Wheeler was trying to set him up. In fact,
defendant was so concerned Wheeler was setting him up that he eventually had Parker deliver
the item for him. The record is also clear defendant expected to be paid. That is, defendant
reminded Wheeler to give Parker defendant’s “dust,” which is a slang term for money. See Dust,
Green’s Dictionary of Slang, https://greensdictofslang.com/entry/sknnwka (last visited January
28, 2025); People v. Crawford, 2013 IL App (1st) 100310, ¶ 118 n.9 (indicating the appellate
court may take judicial notice of information on a public website even though the information
was not in the record on appeal); see also People v. Gorman, 394 Ill. App. 3d 977, 984 (2009)
(“Although the word ‘stolen’ was not used during the entirety of th[e] transaction [between the
- 10 - defendant and the police officer], these veiled references to stealing could be inferred *** in the
same manner that slang references to stealing have been similarly determined by other
jurisdictions.”). Added to this evidence was Parker’s testimony. Although his credibility may be
suspect given his affidavit, his testimony explained and supported the text messages. Parker
testified defendant gave him heroin (the something illegal and of value) that he eventually
delivered to Wheeler in exchange for $140 (defendant’s “dust”).
¶ 32 Citing People v. Williams, 2020 IL App (1st) 172118, defendant argues Wheeler’s
affidavit warrants advancing his petition to a third-stage evidentiary hearing because no physical
evidence linked defendant to the crime and the evidence against him consisted of only witness
testimony. Williams is inapposite.
¶ 33 In Williams, the defendant was convicted of domestic battery. Id. ¶ 23. At the
defendant’s bench trial, the defendant’s wife, Angela Rush, and her two children testified about
an incident where the defendant battered Rush. Id. ¶¶ 6-12. Their testimony was inconsistent
with (1) what Rush, who was the only person the police questioned and did not have any visible
injuries, told the police; (2) photographs of Rush’s injuries allegedly taken right after the
incident; and (3) the defendant’s testimony. Id. ¶¶ 14, 18-20, 26. After he was sentenced, the
defendant filed a posttrial motion, attaching to his motion statements from Rush and her two
children indicating (1) the defendant did not batter Rush on the day in question and (2) the
photographs admitted at trial were of injuries Rush sustained from a prior incident. Id. ¶ 27. The
defendant wished to proceed with an evidentiary hearing on the motion, but the trial court
refused to let him do so and denied his motion. Id. ¶ 29.
¶ 34 On appeal, the defendant argued “the trial court abused its discretion when it
denied his motion for a new trial while refusing his request to present newly discovered
- 11 - evidence.” Id. ¶ 32. The appellate court held the defendant was entitled to an evidentiary hearing
on his posttrial motion because there “was no physical evidence linking defendant to the crime,
the evidence against defendant was solely testimonial, and all of the key witnesses *** recanted
their trial testimony.” Id. ¶ 35.
¶ 35 This case is unlike Williams. Most importantly, Wheeler, unlike the three
witnesses in Williams, did not recant. Rather, she, at best, expressed remorse for helping to
orchestrate the drug transaction that resulted in defendant’s arrest. Further, Parker, the other key
trial witness, did not recant. Although he prepared an affidavit exonerating defendant soon after
defendant was charged, Parker’s trial testimony specifically implicated defendant as the one who
provided the heroin Parker delivered to Wheeler in return for $140, which compensated
defendant for the heroin. Last, unlike in Williams, physical evidence, i.e., the text messages,
suggested defendant and Wheeler alone arranged the drug transaction.
¶ 36 Based on the foregoing, we must conclude defendant failed to make a substantial
showing of his actual innocence. Accordingly, we find the second stage dismissal of defendant’s
amended successive postconviction petition was proper.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the trial court’s judgment.
¶ 39 Affirmed.
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