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).
2022 IL App (3d) 210379-U
Order filed November 22, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0379 v. ) Circuit No. 11-CF-619 ) ISIAH FOSTER III, ) Honorable ) Katherine S. Gorman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court. Justices Daugherity and Hauptman concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Defendant’s second-stage postconviction petition made a substantial showing of a constitutional violation.
¶2 Defendant, Isiah Foster III, appeals the denial of his postconviction petition at the second
stage of proceedings. Defendant contends that his petition made a substantial showing that he
received ineffective assistance, where counsel failed to investigate an alibi witness that defendant
provided him with the contact information. We reverse and remand for further proceedings. ¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with aggravated battery with a firearm (720 ILCS
5/12-4.2(a)(1) (West 2010)), aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and unlawful
possession of a weapon by a felon (id. § 24-1.1(a)). The charges relate to the 2011 shooting of
Robert Norris. After a bench trial, the court found defendant guilty of all charges. On appeal, this
court affirmed defendant’s sentence. People v. Foster, 2015 IL App (3d) 130500-U, ¶ 12.
¶5 Defendant filed a postconviction petition that alleged he received ineffective assistance
because his counsel failed to adequately investigate potential alibi witness, Christy Burns.
Defendant’s petition alleged that Burns would have testified that defendant was at her house on
the day of the shooting. Defendant told counsel that Burns was willing to speak to him and
provided counsel with her contact information. The petition further alleged that counsel told
defendant that he attempted to contact Burns and was unable to locate her.
¶6 Defendant’s petition advanced to the second stage. Postconviction counsel amended the
petition to include an affidavit signed by Burns confirming she could have provided alibi
testimony. If Burns had been called to testify, her testimony would have included that she invited
defendant to her home on the morning of June 21, 2011, and that he arrived at approximately
7 a.m. Defendant spent the rest of the morning at Burns’s house and did not leave until they
heard that a shooting had occurred earlier that day and defendant was wanted in connection with
it. Burns further stated that defense counsel never contacted her.
¶7 The State filed a motion to dismiss arguing that defendant failed to establish the deficient
performance prong to prove ineffective assistance of counsel. The court granted the State’s
motion. Defendant appeals.
2 ¶8 II. ANALYSIS
¶9 Defendant argues that the circuit court erred in dismissing his postconviction petition at
the second stage of proceedings because he made a substantial showing of ineffective assistance
of counsel. Specifically, counsel was ineffective for failing to investigate defendant’s alibi, even
after defendant allegedly provided him with the name and contact information for an alibi
witness who could testify that she was with defendant at her home at the time of the shooting.
¶ 10 Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) persons
imprisoned in the penitentiary may file petitions challenging their convictions on grounds of
constitutional violations. When, as in the instant case, a petition is advanced to the second stage
of postconviction proceedings, the petitioner must make a substantial showing of a constitutional
violation to avoid dismissal. People v. Domagala, 2013 IL 113688, ¶ 34. This “substantial
showing” is a measure of the legal sufficiency of the petition. Id. ¶ 35. At this stage, all well-pled
facts will be regarded as true unless positively rebutted by the record. People v. Pendleton, 223
Ill. 2d 458, 473 (2006). We review a second-stage dismissal de novo. Id. The operative inquiry is
whether the facts pled by defendant, along with facts contained in supporting affidavits, if proven
true at an evidentiary hearing, would entitle him to relief. Domagala, 2013 IL 113688, ¶ 35.
¶ 11 In the context of an ineffective assistance of counsel claim, a postconviction petition must
make a substantial showing that (1) counsel’s performance was so deficient that it fell below an
objective standard of reasonableness, and (2) there is a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong
under Strickland, defendant must show that counsel’s performance was so inadequate “that
counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment.” People v.
3 Evans, 186 Ill. 2d 83, 93 (1999). If a defendant can establish deficient performance, the second
prong requires defendant to show that he was prejudiced as a result. People v. Dupree, 2018 IL
122307, ¶ 44. To satisfy the prejudice prong, defendant must show “ ‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010) (quoting Strickland, 466 U.S. at 694).
¶ 12 Decisions concerning which witnesses to call are matters of trial strategy and are
generally immune from claims of ineffective assistance of counsel. People v. Wilborn, 2011 IL
App (1st) 092802, ¶ 79. However, the failure to investigate an alibi witness may constitute
ineffective assistance of counsel. People v. Bolden, 2014 IL App (1st) 123527, ¶ 45. Defense
counsel has a duty to conduct reasonable investigations. Domagala, 2013 IL 113688, ¶ 38.
Failing to interview a witness indicates deficient representation when the witness is known to
counsel and the anticipated testimony may be exonerating. People v. Coleman, 183 Ill. 2d 366,
398 (1998); see also People v. Ashford, 121 Ill. 2d 55, 74-75 (1988) (the failure to call a witness
will not support an ineffectiveness claim unless it is unreasonable for counsel to believe that the
anticipated testimony would have no probative value to guilty or innocence).
¶ 13 In the present case, accepting the facts set forth in the petition and Burns’s affidavit as
true, defendant has made a substantial showing that defense counsel was ineffective for failing to
investigate and/or present the alibi witness. In his petition, defendant states that he presented
counsel with the contact information for his alibi witness, Burns, and that counsel failed to make
any attempt to contact her or to otherwise investigate defendant’s alibi. Burns’s affidavit, taken
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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).
2022 IL App (3d) 210379-U
Order filed November 22, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0379 v. ) Circuit No. 11-CF-619 ) ISIAH FOSTER III, ) Honorable ) Katherine S. Gorman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court. Justices Daugherity and Hauptman concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Defendant’s second-stage postconviction petition made a substantial showing of a constitutional violation.
¶2 Defendant, Isiah Foster III, appeals the denial of his postconviction petition at the second
stage of proceedings. Defendant contends that his petition made a substantial showing that he
received ineffective assistance, where counsel failed to investigate an alibi witness that defendant
provided him with the contact information. We reverse and remand for further proceedings. ¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with aggravated battery with a firearm (720 ILCS
5/12-4.2(a)(1) (West 2010)), aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and unlawful
possession of a weapon by a felon (id. § 24-1.1(a)). The charges relate to the 2011 shooting of
Robert Norris. After a bench trial, the court found defendant guilty of all charges. On appeal, this
court affirmed defendant’s sentence. People v. Foster, 2015 IL App (3d) 130500-U, ¶ 12.
¶5 Defendant filed a postconviction petition that alleged he received ineffective assistance
because his counsel failed to adequately investigate potential alibi witness, Christy Burns.
Defendant’s petition alleged that Burns would have testified that defendant was at her house on
the day of the shooting. Defendant told counsel that Burns was willing to speak to him and
provided counsel with her contact information. The petition further alleged that counsel told
defendant that he attempted to contact Burns and was unable to locate her.
¶6 Defendant’s petition advanced to the second stage. Postconviction counsel amended the
petition to include an affidavit signed by Burns confirming she could have provided alibi
testimony. If Burns had been called to testify, her testimony would have included that she invited
defendant to her home on the morning of June 21, 2011, and that he arrived at approximately
7 a.m. Defendant spent the rest of the morning at Burns’s house and did not leave until they
heard that a shooting had occurred earlier that day and defendant was wanted in connection with
it. Burns further stated that defense counsel never contacted her.
¶7 The State filed a motion to dismiss arguing that defendant failed to establish the deficient
performance prong to prove ineffective assistance of counsel. The court granted the State’s
motion. Defendant appeals.
2 ¶8 II. ANALYSIS
¶9 Defendant argues that the circuit court erred in dismissing his postconviction petition at
the second stage of proceedings because he made a substantial showing of ineffective assistance
of counsel. Specifically, counsel was ineffective for failing to investigate defendant’s alibi, even
after defendant allegedly provided him with the name and contact information for an alibi
witness who could testify that she was with defendant at her home at the time of the shooting.
¶ 10 Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) persons
imprisoned in the penitentiary may file petitions challenging their convictions on grounds of
constitutional violations. When, as in the instant case, a petition is advanced to the second stage
of postconviction proceedings, the petitioner must make a substantial showing of a constitutional
violation to avoid dismissal. People v. Domagala, 2013 IL 113688, ¶ 34. This “substantial
showing” is a measure of the legal sufficiency of the petition. Id. ¶ 35. At this stage, all well-pled
facts will be regarded as true unless positively rebutted by the record. People v. Pendleton, 223
Ill. 2d 458, 473 (2006). We review a second-stage dismissal de novo. Id. The operative inquiry is
whether the facts pled by defendant, along with facts contained in supporting affidavits, if proven
true at an evidentiary hearing, would entitle him to relief. Domagala, 2013 IL 113688, ¶ 35.
¶ 11 In the context of an ineffective assistance of counsel claim, a postconviction petition must
make a substantial showing that (1) counsel’s performance was so deficient that it fell below an
objective standard of reasonableness, and (2) there is a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong
under Strickland, defendant must show that counsel’s performance was so inadequate “that
counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment.” People v.
3 Evans, 186 Ill. 2d 83, 93 (1999). If a defendant can establish deficient performance, the second
prong requires defendant to show that he was prejudiced as a result. People v. Dupree, 2018 IL
122307, ¶ 44. To satisfy the prejudice prong, defendant must show “ ‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010) (quoting Strickland, 466 U.S. at 694).
¶ 12 Decisions concerning which witnesses to call are matters of trial strategy and are
generally immune from claims of ineffective assistance of counsel. People v. Wilborn, 2011 IL
App (1st) 092802, ¶ 79. However, the failure to investigate an alibi witness may constitute
ineffective assistance of counsel. People v. Bolden, 2014 IL App (1st) 123527, ¶ 45. Defense
counsel has a duty to conduct reasonable investigations. Domagala, 2013 IL 113688, ¶ 38.
Failing to interview a witness indicates deficient representation when the witness is known to
counsel and the anticipated testimony may be exonerating. People v. Coleman, 183 Ill. 2d 366,
398 (1998); see also People v. Ashford, 121 Ill. 2d 55, 74-75 (1988) (the failure to call a witness
will not support an ineffectiveness claim unless it is unreasonable for counsel to believe that the
anticipated testimony would have no probative value to guilty or innocence).
¶ 13 In the present case, accepting the facts set forth in the petition and Burns’s affidavit as
true, defendant has made a substantial showing that defense counsel was ineffective for failing to
investigate and/or present the alibi witness. In his petition, defendant states that he presented
counsel with the contact information for his alibi witness, Burns, and that counsel failed to make
any attempt to contact her or to otherwise investigate defendant’s alibi. Burns’s affidavit, taken
as true at this stage, would have supported defendant’s claim of innocence. The record reflects
that no subpoena was issued for Burns to appear and testify at trial. The record does not reflect
that counsel made a strategic decision not to call the alibi witness, as there was no apparent
4 reason not to do so. See People v. Tate, 305 Ill. App. 3d 607, 612 (1999) (there was no reason
not to call alibi witnesses when witness affidavits supported defendant’s theory of
misidentification). Further, if Burns was found credible, we cannot say that there is no
reasonable probability that the result of the trial would have been different. Accordingly,
defendant is entitled to an evidentiary hearing on his claim. See id.
¶ 14 III. CONCLUSION
¶ 15 The judgment of the circuit court of Peoria County is reversed and remanded for further
proceedings.
¶ 16 Reversed and remanded for further proceedings.