NOTICE 2021 IL App (4th) 190168-U FILED This Order was filed under April 28, 2021 Supreme Court Rule 23 and is NO. 4-19-0168 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County JASON E. FONVILLE, ) No. 11CF1691 Defendant-Appellant. ) ) Honorable ) Thomas E. Griffith Jr., ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.
ORDER
¶1 Held: The trial court’s first-stage dismissal of defendant’s postconviction petition was appropriate.
¶2 In April 2015, defendant, Jason E. Fonville, was found guilty of attempt (first degree
murder) for shooting Ed Gunning. He was also found to have personally discharged the firearm
that proximately caused great bodily harm to Gunning. In May 2015, defendant was sentenced to
30 years in the Illinois Department of Corrections with an additional 50-year add-on for
personally discharging the firearm and causing great bodily harm. In January 2018, this court
affirmed defendant’s conviction and vacated certain fines imposed by the circuit clerk. People v.
Fonville, 2017 IL App (4th) 150499-U. In December 2018, defendant filed, pro se, the instant
postconviction petition claiming ineffective assistance of trial counsel for counsel’s “failure to
investigate, interview and call alibi witnesses.” Defendant also claimed ineffective assistance of appellate counsel for failing to raise certain evidentiary claims of error. In March 2019, the trial
court ordered a first-stage summary dismissal of defendant’s petition and he appeals. On appeal,
he advances only his ineffective assistance of trial counsel claim.
¶3 I. BACKGROUND
¶4 In December 2011, defendant was charged by information with the offenses of
attempt (first degree murder), a Class X nonprobationable felony punishable by 6 to 30 years’
imprisonment with a statutory add-on of 25 years to life for personally discharging a firearm
causing great bodily harm (720 ILCS 5/8-4(a), (c)(1)(D), 9-1 (West 2010)), aggravated battery
with a firearm, also a Class X felony (720 ILCS 5/12-4.2 (West 2010)), and being an armed
habitual criminal, also a Class X felony (720 ILCS 5/24-1.7(a) (West 2010)). The underlying
facts of this case are set forth in detail in the direct appeal referenced above. We will recite only
those facts necessary for our analysis of defendant’s claims here.
¶5 At trial in April 2015, defendant was positively identified by the victim, Ed
Gunning, as the person who walked up and shot him in the face, head, and arm sometime after
7:30 p.m. on October 20, 2009. Although other witnesses described a black male dressed in
black or dark clothing running from the area, no one other than Gunning could identify the
shooter. Shell casings found at the scene and elsewhere, along with slugs removed from
Gunning, were later matched to a handgun found at a residence defendant shared with his wife,
Latesha. The handgun identified by Latesha as belonging to defendant was found under a
mattress when police were summoned to the residence for a domestic dispute in November 2009.
He was not arrested on the charges in this case until April 2013, after being apprehended in
Nashville, Tennessee, on a warrant issued in December 2011.
¶6 The jury found defendant guilty of attempt (first degree murder) and found the
-2- aggravating factors present and caused by defendant as well. His posttrial motion argued: (1) the
verdict was “improper and not based on evidence from which the jury could find the Defendant
guilty beyond a reasonable doubt,” (2) the trial court erred by allowing testimony from Latesha
Fonville which was otherwise protected by the marital privilege, and (3) the trial court erred by
allowing Latesha Fonville to testify about an incident occurring on the same night as the
shooting where Fonville “cocked a firearm and [made] the statement, ‘I love the sound of that.’ ”
The trial court denied the motion, and defendant was sentenced to 30 years in prison for the
attempt (first degree murder) charge and a consecutive 50 years for discharging the firearm that
proximately caused great bodily harm to the victim.
¶7 On direct appeal, defendant argued: (1) the State’s evidence was insufficient to
prove beyond a reasonable doubt he was the shooter, (2) the trial court erred by refusing to
instruct the jury on the lesser-included offense of aggravated battery with a firearm, and (3) the
circuit clerk improperly imposed certain fines. We affirmed defendant’s conviction and vacated
certain fines in Fonville, 2017 IL App (4th) 150499-U.
¶8 In December 2018, defendant filed, pro se, the instant postconviction petition
alleging ineffective assistance of counsel for trial counsel’s “failure to investigate, interview, and
call” three alibi witnesses, including his mother, son, and son’s mother to testify at his trial.
According to his petition, the witnesses could have testified he was “at his mother’s house
babysitting his niece at the time of the shooting.” Defendant also claimed to have given his trial
counsel this information. Defendant contended he was unable to attach affidavits from them
supporting his claim “due to his inability to hire and [sic] investigator to locate and prepare the
affidavits from them.” He also alleged ineffective assistance of appellate counsel for failing to
claim ineffective assistance of trial counsel for (1) eliciting otherwise inadmissible evidence
-3- regarding prior consistent statements by his wife to a detective, (2) failing to object to admission
of a “mugshot” photo, and (3) failing to object to “inflammatory witness opinion that [defendant]
did shootings for a living.”
¶9 In March 2019, in a detailed written order, the trial court summarily dismissed
defendant’s postconviction petition, finding defendant made conclusory allegations unsupported
by any reference to facts in the record and unsupported by affidavits, records, or other evidence
as required by section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 (West
2018)). The court further found defendant’s petition included claims which either were or could
have been raised on direct appeal and were therefore barred by res judicata and/or waiver.
Regarding defendant’s ineffective assistance of counsel claims, the court found they were not
sufficient to “form an arguable basis that counsel’s performance fell below an objective standard
of reasonableness” or that defendant was prejudiced, both because there were no affidavits
supporting the claimed statements of the alibi witnesses and because there was no basis to
believe the outcome of the trial would have been different. The trial court also addressed the
other evidentiary issues, which are not the subject of defendant’s petition here. As a result, the
trial court found the petition “frivolous and patently without merit” and dismissed it. Defendant
appeals.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant makes one claim of error, asserting the trial court’s
summary dismissal of his postconviction petition was in error because he stated the arguable
basis for a claim his retained trial counsel was ineffective for failing to investigate and present
defendant’s alibi evidence.
¶ 12 The Act provides a means by which criminal defendants can assert their
-4- convictions were the result of a substantial denial of their rights under the federal or state
constitutions, or both. People v. Guerrero, 2012 IL 112020, ¶ 14, 963 N.E.2d 909. “Proceedings
under the Act are commenced by the filing of a petition in the [trial] court in which the original
proceeding took place.” People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d 1204, 1208 (2009). The
purpose of the proceeding is to allow inquiry into constitutional issues involved in the original
conviction and sentence that have not been and could not have been adjudicated previously on
direct appeal. People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966 (2007). The defendant
must show he or she suffered a substantial deprivation of his or her federal or state constitutional
rights. People v. Caballero, 228 Ill. 2d 79, 83, 885 N.E.2d 1044, 1046 (2008). In postconviction
proceedings, issues that could have been raised on direct appeal are deemed waived, and those
which were raised are barred from reconsideration under the doctrine of res judicata. People v.
Simpson, 204 Ill. 2d 536, 546, 792 N.E.2d 265, 274 (2001).
¶ 13 The Act establishes a three-stage process for adjudicating a postconviction
petition. People v. English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. At the first stage, the trial
court’s review of the postconviction petition is to determine whether “the petition is frivolous or
is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). A pro se postconviction
petition is considered frivolous or patently without merit only if it “ ‘has no arguable basis either
in law or in fact.’ ” People v. Brown, 236 Ill. 2d 175, 184-85, 923 N.E.2d 748, 754 (2010)
(quoting Hodges, 234 Ill. 2d at 16). The threshold for surviving the first stage of postconviction
proceedings is low. To do so, the petition need only present “the gist of a constitutional claim.”
Harris, 224 Ill. 2d at 126. In considering the petition, the trial court may examine the court file,
any transcripts of proceedings, and any action by the appellate court. 725 ILCS 5/122-2.1(c)
(West 2018). Our review of a trial court’s dismissal of a defendant’s postconviction petition at
-5- the first stage is de novo. People v. Buffer, 2019 IL 122327, ¶ 12, 137 N.E.3d 763. In addition,
we are permitted to affirm the trial court’s decision on any basis found in the record. People v.
Walker, 2018 IL App (1st) 160509, ¶ 23, 128 N.E.3d 978.
¶ 14 Ineffective assistance of counsel claims raised in a postconviction proceeding are
governed by the well-known standards set forth in Strickland v. Washington, 466 U.S. 668
(1984). People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998). To prevail, a
petitioner must first establish defense counsel’s performance was deficient in that “ ‘counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’ ” People v. Haynes, 192 Ill. 2d 437, 472-73, 737 N.E.2d
169, 189 (2000) (quoting Strickland, 466 U.S. at 687). To establish the second prong, a petitioner
must show the deficient performance prejudiced him, i.e., there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been different. People v.
Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767 (citing Strickland, 466 U.S. at 694). Our
analysis may proceed in any order, however, and since a defendant must satisfy both prongs of
the Strickland test, the trial court can dismiss the petition if either prong is not met. People v.
Peterson, 2017 IL 120331, ¶ 79, 106 N.E.3d 944.
¶ 15 Here, defendant contended his privately retained counsel’s performance was
deficient for failing to call three alibi witnesses at trial—his mother, son, and son’s mother.
Although his petition alleged counsel’s failure to interview or call the son and son’s mother, his
affidavit alleged he told counsel those two and his mother would all testify as alibi witnesses at
trial. “ ‘A defense counsel has a professional duty to conduct a reasonable investigation or make
a reasonable decision that a particular investigation is not necessary.’ ” People v. Rodriguez,
2018 IL App (1st) 160030, ¶ 54, 118 N.E.3d 557 (quoting People v. Robinson, 2017 IL App (1st)
-6- 161595, ¶ 99, 93 N.E.3d 573, citing Domagala, 2013 IL 113688, ¶ 38). Counsel’s duty includes
an obligation to independently investigate any possible defenses. People v. Kokoraleis, 159 Ill.
2d 325, 329, 637 N.E.2d 1015, 1017 (1994). “[A] particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” (Internal quotation marks omitted.) People v. Simmons, 2020
IL App (1st) 170650, ¶ 42 (quoting People v. Guest, 166 Ill. 2d 381, 400, 655 N.E.2d 873, 882
(1995), quoting Strickland, 466 U.S. at 691). However, “the decision whether to call a certain
witness for the defense is a matter of trial strategy, left to the discretion of counsel after
consultation with the defendant.” Peterson, 2017 IL 120331, ¶ 80. As a result, such decisions
will not ordinarily support a claim for ineffective assistance of counsel and even “a mistake in
trial strategy” will not, by itself, render representation constitutionally defective. Peterson, 2017
IL 120331, ¶ 80.
¶ 16 Even though a pro se petitioner need present only a limited amount of detail and
is not required to include legal argument or citation to authority (People v. Edwards, 197 Ill. 2d
239, 244, 757 N.E.2d 442, 445 (2001)), he is not excused from providing any factual detail
whatsoever on the alleged constitutional deprivation. Brown, 236 Ill. 2d at 184. The petition
needs to set forth some facts which can be corroborated and are objective in nature or contain
some explanation as to why those facts are absent. Hodges, 234 Ill. 2d at 10; see also 725 ILCS
5/122-2 (West 2018) (stating a petition must have attached “affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached”). The purpose of the
“affidavits, records, or other evidence” requirement of section 122-2 of the Act is to establish
that a petitioner’s allegations are capable of objective or independent corroboration. People v.
Delton, 227 Ill. 2d 247, 254, 882 N.E.2d 516, 520 (2008). In fact, failure to attach the necessary
-7- affidavits, records, or other evidence or explain their absence is fatal to a postconviction petition
and may justify summary dismissal by the trial court. Delton, 227 Ill. 2d at 255.
¶ 17 Defendant’s claimed compliance with section 122-2 is the bare assertion,
“Petitioner is unable to attach the requisite affidavits from Nicole Ricks [(mother of his son)] and
Jemere Fonville [(his son)] at this time due to his inability to hire and [sic] investigator to locate
and procure the affidavits from them.” However, besides the common-sense inquiry into why
defendant would be unable to secure an affidavit from his own mother, the record reveals she
was the source of verifying information in defendant’s presentence report, her address was listed
on his arrest warrant, and, according to his wife’s testimony at trial, that address was his
residence at the time of the offense. Further, the presentence report also indicates the other two
alibi witnesses, his then-18-year-old son and son’s mother, both lived in Jackson, Tennessee, and
at the time of his arrest, defendant was apprehended in Nashville, Tennessee. They obviously
must have been on good terms since (1) according to Fonville, they had made the trip from
Tennessee to Decatur to visit him on the day of the shooting and (2) he contended in his affidavit
they were willing to testify to his alibi if called at an evidentiary hearing on this petition.
Defendant does not even attempt to show the efforts he made, unsuccessfully, to secure their
affidavits on his own. Defendant’s only explanation for the absence of their affidavits strikes us,
and undoubtedly struck the trial court, as disingenuous at best. Defendant is confident Jemere
and Nicole would testify at an evidentiary hearing consistent with his affidavit, both regarding
his presence with them on the date and time of the shooting and the failure of his trial counsel to
contact or call them as witnesses for trial. This alone would indicate contact with them at least
some time after the trial and before filing his postconviction petition; otherwise, how would he
be in a position to submit an affidavit to that effect? Even if he did not know the current location
-8- of Jemere and Nicole, we can think of no reason why obtaining an affidavit from his mother
would be difficult. See Delton, 227 Ill. 2d at 257. These observations are readily apparent from
the record, and the trial court properly concluded defendant failed to adequately explain the
absence of any affidavits. See 725 ILCS 5/122-2.1(c) (West 2018).
¶ 18 The trial court also found defendant’s petition included claims which could have
been raised on direct appeal and were therefore barred by res judicata or waiver. At no time prior
to this postconviction petition, either before, during, or after trial, did he complain about his
retained counsel’s failure to investigate or present an alibi defense. Since defendant was
represented by the same counsel at his posttrial motion, the absence of any such claim at that
time may be understandable. However, as the presentence report reflects, this defendant is
well-versed in the criminal justice system, having a criminal history stretching back to 1989,
with five previous prison sentences as an adult. Defendant retained counsel in June 2014 and did
not proceed to trial until April 2015, yet defendant never expressed his displeasure with
counsel’s performance or preparation at any pretrial conference and made no such complaints
afterwards, including on direct appeal. Even the postconviction ineffective assistance of
appellate counsel claim relates only to unrelated errors in the admission of certain evidence. He
does not fault appellate counsel for failing to raise the issue before us. These are claims which
could and should have been raised on direct appeal, and the trial court did not err in finding
defendant waived them by failing to do so.
¶ 19 Where a postconviction petitioner claims the ineffective assistance of counsel
based on counsel’s failure to call a witness, although an affidavit from the proposed witness is
not necessarily required to support a claim under section 122-2 of the Act, the claim needs to be
otherwise supportable by the record or other evidence. People v. Dupree, 2018 IL 122307, ¶ 40,
-9- 124 N.E.3d 908. The affidavit is most important in those instances where a petitioner seeks to
introduce “new witness testimony, i.e., new evidence,” he believes would have changed the
outcome of the trial. (Emphasis in original.) Dupree, 2018 IL 122307, ¶ 40. There, absent an
affidavit, the record or other evidence must be capable of a “substantial showing” that counsel
was ineffective. Dupree, 2018 IL 122307, ¶ 40. We are therefore required to examine the record
to see whether there is evidence sufficient for a substantial showing that defendant’s claimed
alibi evidence existed, or that an alibi would have been a viable defense strategy in light of the
other evidence at trial, or even assuming alibi evidence existed, whether alibi evidence might
have affected a jury verdict. See People v. James, 348 Ill. App. 3d 498, 505-07, 810 N.E.2d 96,
103-04 (2004) (stating determination of whether alibi evidence might have affected a jury verdict
and prejudiced a defendant is made by reviewing the potential impact of the alibi evidence
against the overall evidence of guilt).
¶ 20 It is clear from the trial record defense counsel focused on the issue of the identity
of the shooter. Although Gunning, the victim, positively identified defendant at trial, while still
in the hospital and heavily medicated, he gave a different physical description, at one point
saying there were two men and even naming potential suspects. Later, after being shown a total
of 36 photos, Gunning identified defendant as the shooter. Defendant’s counsel focused his
cross-examination of Gunning and his closing argument around the differences between his
description near the time of the shooting and his identification at trial, the circumstances
surrounding his observations at the time of the shooting, and his lack of 100% certainty when
observing the photos. Defendant’s wife, Latesha, testified defendant was with her shortly before
Gunning was shot, armed with the handgun eventually found in his bedroom, and ballistically
matched to not only the rounds fired at Gunning while he was walking on Williams Street but
- 10 - those found several blocks away from the scene of the shooting. This was consistent with her
description of the heated argument she had with defendant in her car when he brandished the
handgun and fired four shots out the window of the car shortly before she dropped him off on
Williams Street. The shell casings later found on Cleveland Street ballistically matched the gun
from his bedroom. Latesha said defendant was on foot and, at the time of the shooting, the other
witnesses who could not identify the shooter described a black male in dark clothing seen
standing over Gunning and then running or walking quickly from the scene. That description was
consistent with the clothing Latesha said he was wearing when she dropped him off. According
to the evidence at trial, the shots fired on Cleveland Street were called in to the 911 emergency
phone line approximately 30 minutes before the 911 call from the restaurant to which Gunning
stumbled after being shot. According to testimony, it would have taken Gunning a few minutes
to get from the location on Williams Street, where he was shot, to the restaurant, since it was not
only several blocks away but because he said after he lay for several minutes where he had been
shot, he fell three times while struggling to get to the restaurant. The prosecutor argued the actual
time between the shots fired out of Latesha Fonville’s car window and the shooting of Ed
Gunning was probably closer to 20 minutes, which, from the record, does not appear
unreasonable.
¶ 21 Defendant also attacked his wife’s credibility and argued there was no direct
evidence the handgun found in his bedroom was his, or had been fired by him, other than her
statements to police, which is true. Counsel highlighted her statements to the police which were
inconsistent with her trial testimony, noting many were given after she was in custody on
outstanding warrants for an unrelated matter for which she was ultimately sentenced to prison. In
closing argument, he noted the acrimonious nature of their relationship and her motivation to
- 11 - testify against him. Defense counsel also focused a portion of his closing argument on the
suspicions Gunning had early on that one of his former accounting clients had sent someone to
kill him because of what he knew about the client’s business dealings. All these areas of attack
placed focus on the identity of the shooter, without highlighting defendant. This is not an
unreasonable trial strategy. Defendant’s counsel was able to attack both the victim’s
identification and his wife’s credibility without having to defend the credibility of alibi witnesses
with obvious bias, or deal with the issue of calling defendant and exposing him to
cross-examination, or not calling him and relying solely on alibi witnesses subject to
cross-examination. “ ‘Whether to call certain witnesses and whether to present an alibi defense
are matters of trial strategy, generally reserved to the discretion of trial counsel.’ ” People v.
Jackson, 2020 IL 124112, ¶ 106, 162 N.E.3d 223 (quoting People v. Kidd, 175 Ill. 2d 1, 45, 675
N.E.2d 910, 931 (1996)). This is especially true since juries are not obligated to find the
testimony of an alibi witness to be more credible than that of a State’s witness, especially where
the alibi witnesses are related to the accused and possess an obvious bias. See People v. Corral,
2019 IL App (1st) 171501, ¶ 90, 126 N.E.2d 632 (collecting cases). The bigger question is
whether alibi witnesses even existed. We have no way of knowing absent defendant’s
unsupported claim. The evidence against defendant was, in the words of the trial court,
“extremely strong regarding Defendant’s guilt and there certainly was a sufficient basis for the
jury’s verdict.”
¶ 22 Considering the absence of affidavits or a credible explanation for their absence,
we are left to consider whether this record supports a “substantial showing” counsel was
ineffective. Dupree, 2018 IL 122307, ¶ 40. It does not. The trial court found defendant’s claims
did “not form an arguable basis that counsel’s performance fell below an objective standard of
- 12 - reasonableness and that it was not arguable the defendant was prejudiced,” and we agree. A
postconviction petition alleging ineffective assistance of counsel is subject to summary dismissal
when it fails to meet both standards. People v. Knapp, 2020 IL 124992, ¶ 46.
¶ 23 III. CONCLUSION
¶ 24 For all the reasons set forth above, we find the trial court did not err when it
summarily dismissed defendant’s petition as frivolous and patently without merit.
¶ 25 Affirmed.
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