NOTICE 2025 IL App (5th) 231029-U NOTICE Decision filed 11/18/25. The This order was filed under text of this decision may be NO. 5-23-1029 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 12-CF-357 ) CORTEZ GILLUM, ) Honorable ) Zina R. Cruse, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE HACKETT ∗ delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.
ORDER
¶1 Held: The defendant was not provided with ineffective assistance of postconviction counsel where his counsel did not (1) amend his petition to avoid alleged waiver and to include claims from the pro se petition, and (2) attach the defendant’s affidavit when other documentary evidence was included in support of the petition’s claims. However, we reverse the trial court’s judgment as to the claim that trial counsel provided ineffective assistance by failing to investigate defense witnesses, and we remand for third-stage evidentiary hearing. We otherwise affirm the court’s judgment on the remaining postconviction claims of ineffective assistance of trial counsel. Therefore, we affirm in part, reverse in part, and remand for a third-stage evidentiary hearing.
¶2 In October 2022, the circuit court of St. Clair County granted the State’s motion to dismiss
defendant Cortez Gillum’s amended postconviction petition during the second stage of
∗ Originally Justice Welch was assigned to the panel. Justice Hackett was later substituted on the panel and has listened to oral arguments and read the briefs. 1 proceedings under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)).
The defendant appeals this dismissal, arguing that the court erred in granting the State’s motion to
dismiss on Strickland grounds. See Strickland v. Washington, 466 U.S. 668 (1984). The defendant
also argues that he did not receive a reasonable level of assistance from postconviction counsel
where postconviction counsel failed to shape his claims into proper legal form and failed to include
viable claims from his pro se petition. For the reasons that follow, we affirm in part, reverse in
part, and remand for a third-stage evidentiary hearing.
¶3 I. BACKGROUND
¶4 The facts necessary for our disposition of this appeal are as follows. On March 25, 2014, a
St. Clair County jury found the defendant guilty of two counts of attempted first degree murder
(counts I and II) (720 ILCS 5/8-4(a), (c)(1)(D) (West 2012); 720 ILCS 5/9-1(a)(1) (West 2012)),
one count of aggravated battery with a firearm (count III) (id. § 12-3.05(e)(2)), and one count of
unlawful possession of a weapon by a felon (count IV) (id. § 24-1.1(a)).
¶5 Previous to that, in September 2002, in the United States District Court for the Central
District of Illinois, the defendant pled guilty to one count of felon in possession of a firearm (18
U.S.C. § 922(g)(1) (2000)) and was committed to the custody of the United States Bureau of
Prisons for a term of 10 years. After serving most of his sentence, the defendant was transferred to
a halfway house in Farmington, Missouri, to serve his remaining nine months.
¶6 In January 2012, after being at the halfway house in Farmington for approximately one
month, the defendant received his first furlough, left, and never returned. As a result, the United
States Marshals Service circulated a “wanted poster” for his arrest. See 28 C.F.R. 570.38(a) (2011)
(“An inmate who violates the conditions of a furlough may be considered an escapee *** and may
be subject to criminal prosecution and institution disciplinary action.”).
2 ¶7 On the afternoon of March 4, 2012, after being advised that the defendant had recently
been seen at the Orr-Weathers housing complex in East St. Louis, uniformed Officers Rudy
McIntosh and Michael Baxton of the East St. Louis Police Department commenced patrolling the
area in separate marked squad cars. At around 3 p.m., Officer Baxton observed the defendant
walking through a parking lot “attempting to conceal his identity with a hood.” Officer Baxton
then cut off the defendant’s path with his squad car and asked the defendant to identify himself.
The defendant gave a false name, and Officer Baxton asked the defendant to put his hands on the
vehicle. Officer Baxton attempted to grab the defendant and a scuffle ensued. After breaking apart,
Officer Baxton pulled his service weapon and then holstered it and reached behind his back for his
pepper spray. The defendant brought out a 9-millimeter pistol (9mm) and shot Officer Baxton in
the face. Officer Baxton fell to the ground as the defendant shot twice more, missing both times.
The defendant fled the scene and removed his black hooded sweatshirt along the way. After the
defendant left, Officer Baxton radioed for assistance, and Officer McIntosh quickly arrived and
administered first aid.
¶8 The bullet that entered Officer Baxton’s face travelled through his left cheek and exited
out his left ear. Officer Baxton was transported by ambulance from the scene of the shooting to St.
Louis University Hospital, where he remained for several days.
¶9 Within hours of the shooting, the police were informed that the defendant was at a high-
rise apartment building on Waverly Avenue in East St. Louis. A tactical response team was called
to the building, and the defendant was arrested and taken into custody.
¶ 10 On the evening of March 5, 2012, after the defendant indicated that he wanted to give a
statement, investigators interviewed him at the St. Clair County jail. The interview was video-
recorded, and a redacted version was later played at the defendant’s trial. At the outset of the
3 interview, the defendant confirmed that he had not sustained any lacerations, bruises, or abrasions
other than handcuff scuffs and a rug burn that had resulted from his arrest. The defendant
specifically denied having been “slapped upside the head or anything.”
¶ 11 The defendant initially claimed to have witnessed Ryan Ivory shoot Officer Baxton
following an argument over money. The defendant stated that he did not know Officer Baxton and
had never seen him before. The defendant claimed that he never touched the gun that was used to
shoot Officer Baxton and that Ivory had left it at the apartment. The defendant adamantly denied
having shot Officer Baxton and the defendant repeatedly stated that he was telling the truth. The
defendant also admitted that he was aware the Marshals Service had been looking for him, that he
was a “wanted fugitive,” and that he had been “ducking” the police for weeks.
¶ 12 When the defendant was informed that his encounter with Officer Baxton had been
captured by a security camera, the defendant initially indicated that he shot Officer Baxton to
protect his family. The defendant then claimed that he shot Officer Baxton in self-defense. The
defendant maintained, among other things, that after Officer Baxton almost ran him over with his
squad car, Officer Baxton jumped out of the car with a gun in his hand, acting like a lunatic. The
defendant stated that Officer Baxton cornered him where no one else was around, repeatedly hit
him in the head with the gun, and pointed the gun at his face. The defendant indicated that after
pushing Officer Baxton away during an ensuing struggle, he pulled out his 9mm pistol and tried
to shoot Officer Baxton in the leg because he believed that Officer Baxton was going to kill him.
The defendant further indicated that the first two shots he fired were warning shots intended to
scare Officer Baxton. The defendant claimed that he had “just pointed and shot” and did not know
how Officer Baxton ended up getting shot in the face. The defendant further claimed that Officer
4 Baxton had his gun out the entire time and that Officer Baxton’s gun was pointed at him when the
defendant fired.
¶ 13 When describing what had occurred, the defendant never referenced mace, pepper spray,
Officer Baxton encouraging him to run, or Officer Baxton putting him in a chokehold. The
defendant maintained that he had been compliant. The defendant indicated that he ditched the
hooded sweatshirt he was wearing because it was obstructing his vision as he ran. The defendant
stated that he purchased his 9mm pistol “off the street” for $25.
¶ 14 When the defendant was confronted with the fact that there were no physical indications
that he had been hit in the head with a gun, the defendant suggested that he had deflected the pistol
blows with his arms and that his handcuff scuffs were the resulting injuries. When asked why
Officer Baxton had not shot him when Officer Baxton saw that he had a gun, the defendant stated
that he did not know. When the interviewing investigators suggested that the defendant had
“panicked” and had shot Officer Baxton to avoid being sent back to prison, the defendant insisted
that he had not escaped from the halfway house in Farmington because his failure to return from
furlough was technically an “unauthorized movement.” He further insisted that his unauthorized
movement would likely not have resulted in any additional prison time.
¶ 15 The defendant maintained that the surveillance video would corroborate his version of
events. The defendant also maintained that because he never intended to kill Officer Baxton, his
conduct constituted aggravated discharge of a firearm as opposed to attempted first degree murder.
The defendant stated that he did not know why he initially attempted to convince the investigators
that Ryan Ivory had shot Officer Baxton.
5 ¶ 16 While awaiting trial at the St. Clair County jail, the defendant spoke with four potential
witnesses and advised them to speak with his attorney. The witnesses contacted the attorney’s
office but did not receive any further response.
¶ 17 On March 30, 2012, the defendant entered a plea of not guilty. Before trial, the defendant
requested and received a psychological evaluation regarding a potential insanity defense and his
fitness to stand trial. The evaluation contained information regarding the defendant’s education
level, prior criminal record, substance use, suicide attempts, and family mental health history.
While the evaluation stated that the defendant suffered from mental illness, the evaluation
concluded that he was fit to stand trial. When the evaluation was presented at the June 25, 2012,
hearing, the defendant waived his right to a hearing on the matter and agreed to proceed to a trial
on the charges. The status hearing was held on August 29, 2012, where two issues were brought
before the trial court: the defense counsel’s request to continue matters to October 17, 2012; and a
discussion regarding DNA testing. The defendant was present and indicated he understood the
continuance meant his request for a speedy trial would be tolled through October 17. The hearing
was then pushed back to October 18, 2012, where the DNA testing issue was resolved and the
defendant agreed with his counsel’s request for a continuance. On December 5, 2012, trial counsel
filed a motion to suppress the defendant’s statements given during the defendant’s interrogation,
alleging the defendant was subjected to “physical and psychological coercion, duress and
violence.” On October 3, 2013, defense counsel withdrew the motion to suppress.
¶ 18 At some point, the defendant requested new counsel and a hearing was set for January 22,
2014. At the January hearing, the defendant appeared and withdrew his motion for new counsel.
Prior to trial, the defendant again requested new counsel, and at a hearing on the matter on March
4, 2014, argued his motion before the court pro se. The defendant argued that he felt his counsel
6 was not adequately representing him because his counsel had not yet completely reviewed
documents regarding the defendant’s civil case against Officer Baxton and that counsel had not
met with him, responded to his letters, or effectively communicated for nearly two years. The trial
court denied his motion.
¶ 19 As referenced above, the defendant also filed a federal civil lawsuit in the United States
District Court of the Southern District of Illinois against Officer Baxton alleging use of excessive
force by a police officer. Gillum v. Baxton, et al., No. 3:2012-CV-00626. The lawsuit had not
concluded at the time of the defendant’s criminal trial, but discovery was underway and Officer
Baxton was deposed on December 11, 2013. In his deposition, Officer Baxton testified that he had
not drawn his service weapon prior to the scuffle and had first drawn it after he and the defendant
had broken apart.
¶ 20 At trial, the State submitted the surveillance video recording of the incident into evidence.
The video had low resolution, a low frame rate, and no sound. As such, both the defendant and
Officer Baxton offered differing testimony as to the details of what occurred.
¶ 21 Officer Baxton testified that after intercepting the defendant, he “saw that [the defendant]
was the subject that was on the wanted poster.” Intending to arrest the defendant, Officer Baxton
repeatedly asked the defendant to “put his hands on the vehicle.” When the defendant refused and
began backing away, Officer Baxton drew his service pistol, pointed it at the defendant, and
ordered the defendant to get down on the ground. When the defendant failed to comply, Officer
Baxton “went hands-on” and attempted to force the defendant onto the hood of the car. When the
defendant physically resisted, Officer Baxton “disengaged,” holstered his pistol, and grabbed his
pepper spray, which was on his duty belt behind his gun. Officer Baxton advised the defendant
that he was going to “mace [the defendant] if he didn’t comply.” Officer Baxton did not otherwise
7 threaten the defendant “in any way.” As Officer Baxton approached the defendant with the pepper
spray, the defendant pulled out a 9mm pistol and shot Officer Baxton once in the face at close
range. As Officer Baxton fell to the ground, the defendant leaped backwards firing two additional
shots, both of which missed. The defendant then fled the scene, ditching his black hooded
sweatshirt along a nearby street. Officer Baxton radioed for assistance, and Officer McIntosh
quickly arrived and administered first aid.
¶ 22 As the sole witness for the defense, the defendant testified that, after cutting off his path
with the squad car, Officer Baxton jumped out “agitated and aggressive.” The defendant testified
that Officer Baxton ordered him to the hood of the car and pointed a gun in his face. Officer Baxton
then hit the defendant in the head with the gun, banged the defendant’s head on the hood and side
of the car, and put him in a chokehold. The defendant testified that he was compliant and was not
resisting or attempting to flee. The defendant claimed that when he asked Officer Baxton to just
arrest him and take him to jail, Officer Baxton told the defendant to run and, “No, you ain’t going
to jail. You’re going to die back here today. I’m tired of individuals like you.” The defendant
further claimed that Officer Baxton “kept beating [him] and telling [him], ‘Run so I can shoot
you.’ ” The defendant testified that when he cried out for help to people across the street, Officer
Baxton had looked over at them and told them to mind their own business, or he would “put a case
on [them].”
¶ 23 The defendant further testified that after he “kind of backed up a little bit,” Officer Baxton
reached behind his back, and the defendant thought that Officer Baxton was going to shoot him.
The defendant testified that Officer Baxton’s “exact words” were, “I’m going to blow your ***
brains out. I’m going to mace *** you, and I’m going to blow your *** brains out.” At that point,
the defendant pulled out his 9mm pistol, fired three shots “toward the ground, and ran.” The
8 defendant testified that he had not shot Officer Baxton to avoid arrest and had not tried to kill
Officer Baxton.
¶ 24 The defendant testified that his head felt tender and sore after the incident, but there was
no bleeding. The defendant claimed that he would have turned himself in to a local police
department, but he was afraid that something might happen to him if he did. He eventually went
to the seventh-floor apartment on Waverly, hoping that he would not be found there. The defendant
testified that he “honestly feared” that he was in danger.
¶ 25 The defendant indicated that he was initially untruthful with the interviewing investigators
because he knew that Officer Baxton’s father had numerous police connections. The defendant
believed that had he admitted to shooting Officer Baxton, the defendant would have been harmed
out of “retaliation and revenge.” The defendant testified that after he was informed that his
encounter with Officer Baxton was caught on video, he decided to tell the truth because he knew
that there was proof that he had done nothing wrong. He further indicated that he knew that if
something happened to him, his family would be able to watch the video and “know the reasons
why it happened.” The defendant testified that he had been involved in incidents with East St.
Louis police officers on prior occasions and that they had beaten him, shot his brother in the leg,
and killed one of his friends.
¶ 26 During closing arguments, the State maintained, among other things, that there was “no
doubt” that the defendant had intentionally shot Officer Baxton in the face intending to kill Officer
Baxton and had done so to avoid being arrested and sent back to prison. The State argued that the
defendant had “zero” credibility and that the defendant’s claims that he was the victim defied logic,
common sense, and the surveillance video.
9 ¶ 27 In response, defense counsel referenced the infamous “Rodney King case” and argued that
the defendant had truthfully described exactly what had occurred. Counsel further argued that
because the security video had no audio, it failed to convey “the entire context” of the encounter.
Counsel suggested, among other things, that if the incident had been audio-recorded, the jurors
would have been able to hear Baxton profanely threaten to kill the defendant while encouraging
him to run.
¶ 28 After deliberating for approximately 90 minutes, the jury returned a verdict finding the
defendant guilty on all counts. The jury also returned a special interrogatory finding that the
defendant had personally discharged a firearm that proximately caused great bodily harm to
another. The defendant’s sentence on count I was thus subject to a mandatory add-on sentence of
25 years to life. See 725 ILCS 5/111-3(c-5) (West 2012); 720 ILCS 5/8-4(c)(1)(D) (West 2012).
¶ 29 In May 2014, after merging the offense of attempted first degree murder with the second
offense of attempted first degree murder and the offense of aggravated battery with a firearm, the
trial court imposed an aggregate 70-year sentence on count I and a concurrent 14-year sentence on
count IV. In September 2014, following the trial court’s denial of the defendant’s pro se motions
for a new trial, which included claims of ineffective assistance of trial counsel for failure to
impeach Officer Baxton with evidence of prior bad acts, and a motion to reduce sentence, the
defendant filed a timely notice of appeal. On May 8, 2017, this court affirmed the defendant’s
convictions and sentences. People v. Gillum, 2017 IL App (5th) 140450-U. In addition, this court
also affirmed the trial court’s orders on the defendant’s pro se posttrial filings.
¶ 30 The defendant then filed a pro se postconviction petition under the Act on December 26,
2018. The pro se petition alleged that trial counsel was ineffective for the following reasons:
(1) failing to impeach Officer Baxton with multiple pieces of evidence, including prior inconsistent
10 statements at a civil deposition regarding the shooting; (2) failing to present evidence of Officer
Baxton’s previous violent behavior; (3) failing to pursue a guilty plea offer that the defendant
allegedly accepted; (4) failing to investigate multiple witnesses who provided signed affidavits
alleging they had witnessed the shooting and that Officer Baxton had threatened to kill the
defendant; (5) failing to litigate a motion to suppress statements after police allegedly coerced a
statement from the defendant by striking him with a flashlight on his ribs, chest, shoulder, and
head; (6) failing to request a severance of the gun charge from the attempt murder charge;
(7) failing to offer any evidence in mitigation at sentencing; and (8) failing to communicate
adequately with the defendant and consult with him regarding major decisions.
¶ 31 On June 14, 2018, the postconviction judge found that the defendant had established a gist
of a constitutional violation and ordered that the defendant be appointed an attorney for second-
stage proceedings. On October 6, 2022, postconviction counsel filed an amended petition for
postconviction relief, which contained two claims for ineffective assistance of trial counsel. The
first claim, that trial counsel failed to impeach Officer Baxton with evidence available at the time
of trial (impeachment claim), contained two subclaims: that trial counsel failed to impeach Officer
Baxton with evidence of his untruthfulness and prior inconsistent statement and that trial counsel
failed to investigate four witnesses who would offer testimony supporting the defendant’s version
of events. The second claim alleged that trial counsel failed to present mitigating evidence at the
sentencing hearing (sentencing claim).
¶ 32 The State filed a motion to dismiss the amended postconviction petition, arguing that both
claims were barred by forfeiture as they were not raised during the direct appeal. The State argued
in the alternative that the defendant failed to prove prejudice for the impeachment claim because
the defendant’s defense contained inconsistencies that “alone would be sufficient for the jury to
11 find the petitioner’s version of events as uncredible.” The State also maintained that the proffered
witness affidavits would not be sufficient to justify the use of force by the defendant so as to justify
his claim of self-defense. The State argued that the sentencing claim failed to prove prejudice as
the defendant’s presentencing investigation report contained the mitigating information for the
sentencing court’s review.
¶ 33 On August 10, 2023, the trial court granted the State’s motion to dismiss, finding that, to
the extent the ineffective assistance of trial counsel claims could be raised, they failed to meet the
Strickland 1 standard. The defendant appeals.
¶ 34 II. ANALYSIS
¶ 35 On appeal, the defendant argues that the trial court erred in granting the State’s motion to
dismiss the impeachment claim as the defendant’s arguments, when taken to be true, show that
trial counsel’s performance was objectively unreasonable and, but for counsel’s errors, the result
of the proceedings would have been different. The defendant also argues that postconviction
counsel was ineffective for failing to make necessary amendments to the defendant’s pro se
petition, including failing to properly shape the sentencing claim to avoid forfeiture, failing to
attach an affidavit from the defendant supporting his claims, and failing to include three viable
claims from the defendant’s pro se petition.
¶ 36 The State initially argues that the trial court properly dismissed both of the defendant’s
postconviction claims based on Strickland grounds because trial counsel’s decisions were
reasonable trial strategy and, even if they were not, the defendant fails to prove prejudice. The
State also argues that the defendant’s postconviction counsel provided reasonable assistance as the
The Strickland test is a two-pronged test for determining ineffective assistance of counsel claims. 1
We will discuss this case in more detail later in the decision. Strickland v. Washington, 466 U.S. 668, 687 (1984). 12 second postconviction claim was not dismissed on grounds of forfeiture but on Strickland grounds,
that there was adequate supporting documents attached to the amended postconviction petition,
and that it was reasonable for postconviction counsel to decline to pursue meritless claims that
were barred or contradicted by the record. As such, the State argues that the defendant’s
postconviction claims did not establish a substantial showing of a constitutional violation.
¶ 37 The Act allows a criminal defendant to raise a claim that his conviction resulted from a
substantial violation of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2020). The Act
establishes a three-stage process for the adjudication of postconviction petitions. People v.
Hommerson, 2014 IL 115638, ¶ 7. If a petition is not summarily dismissed at the first stage, it
advances to the second stage, where an indigent petitioner can obtain appointed counsel, and the
State can move to dismiss the petition or answer. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West
2020). The standard of review for a motion to dismiss at the second stage of proceedings is de novo,
and we accept as true all factual allegations that are not positively rebutted by the record. People
v. Johnson, 2017 IL 120310, ¶ 14.
¶ 38 However, the claims before us have mutually exclusive remedies. The defendant first
alleges that the postconviction court erred in granting the State’s motion to dismiss his amended
petition at the second stage. Should we find for the defendant, the remedy is to reverse the trial
court’s order and remand for a third-stage evidentiary hearing. People v. Allen, 2015 IL 113135,
¶ 22. In contrast, finding for the defendant on the allegation that he received ineffective assistance
of postconviction counsel is remedied by remanding for a new second-stage hearing and assigning
the defendant a new postconviction counsel. People v. Schlosser, 2017 IL App (1st) 150355, ¶¶ 36,
40, 46. We will first address whether postconviction counsel provided ineffective assistance.
13 ¶ 39 A. Ineffective Assistance of Postconviction Counsel
¶ 40 As the right to postconviction counsel at the second stage of proceedings is wholly
statutory, a postconviction petitioner is entitled to only a reasonable level of assistance. People v.
Perkins, 229 Ill. 2d 34, 42 (2007). Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) imposes
certain duties on postconviction counsel to ensure reasonable assistance. People v. Turner, 187 Ill.
2d 406, 410 (1999). Under Rule 651(c), postconviction counsel is required to: (1) consult with
petitioner to ascertain his allegations of how he was deprived of his constitutional rights,
(2) examine the record of proceedings from the trial, and (3) amend petitioner’s pro se petition as
necessary to adequately present his contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Counsel
may file a certificate to show compliance with the requirements of the rule, or the record may
demonstrate that counsel complied with those requirements. People v. Richmond, 188 Ill. 2d 376,
380 (1999).
¶ 41 Where a Rule 651(c) certificate is filed, the presumption is that postconviction counsel
rendered reasonable assistance during second-stage proceedings under the Act. People v. Jones,
2011 IL App (1st) 092529, ¶ 23. Petitioner has the burden of overcoming the presumption by
demonstrating counsel’s failure to substantially comply with the duties mandated by Rule 651(c).
Id.
¶ 42 Postconviction counsel is not required to amend a postconviction petition in every case;
amendments are necessary only when required to adequately present petitioner’s claims. Turner,
187 Ill. 2d at 412. Counsel is under no obligation to amend a petition to advance meritless claims.
People v. Greer, 212 Ill. 2d 192, 205 (2004). Counsel is also not required to explain why they
believe a claim to be meritless unless they are withdrawing from the matter. People v. Kuehner,
2015 IL 117695, ¶ 21. Illinois courts have repeatedly held that the purpose of Rule 651(c) is to
14 ensure counsel shapes the petitioner’s claims into proper legal form and presents these claims to
the court. Perkins, 229 Ill. 2d at 43-44.
¶ 43 Here, counsel filed a Rule 651(c) certificate stating that he consulted with the defendant by
mail and in person to ascertain the defendant’s contentions of constitutional deprivations,
examined the record of the proceedings, and made any amendment to the petition necessary for
the adequate presentation of the defendant’s pro se claims. Thus, we presume counsel provided
reasonable assistance unless the defendant proves otherwise. We review counsel’s compliance
with Rule 651(c) de novo. People v. Wallace, 2018 IL App (5th) 140385, ¶ 31.
¶ 44 In the defendant’s appeal, he argues that postconviction counsel failed the third
requirement to amend his pro se petition to adequately present his claims as counsel failed to
construct the sentencing claim so as to avoid forfeiture, failed to attach a signed affidavit from the
defendant supporting his claims, and failed to include three viable claims from the pro se petition.
The State argues that defendant failed to rebut the presumption of reasonable assistance where
postconviction counsel submitted a valid Rule 651(c) certificate, amended the sentencing claim
well enough for it to be considered by the postconviction court, attached sufficient documentary
evidence to the petition, and dropped the three disputed claims for being either meritless or
procedurally barred.
¶ 45 First, addressing the issue of forfeiture regarding the sentencing claim, the trial court’s
order of August 10, 2023, dismissed the sentencing claim on grounds other than forfeiture. The
defendant has no basis on which to claim postconviction counsel failed to avoid forfeiture on this
claim.
¶ 46 Next, the defendant argues that postconviction counsel provided unreasonable assistance
by failing to attach to the amended petition an affidavit from the defendant alleging his claims
15 could be independently corroborated. The defendant argues that part of postconviction counsel’s
duty to amend the petition requires that they attach “affidavits, records, or other evidence
supporting its allegations” and failure to do so is unreasonable assistance. Turner, 187 Ill. 2d at
414; People v. Collins, 202 Ill. 2d 59, 66-67 (2002); People v. Ross, 2015 IL App (3d) 130077,
¶¶ 17-19. The State argues that counsel did not need to include the defendant’s affidavit as counsel
attached ample documentary support for the defendant’s claims.
¶ 47 We agree with the State that the matter before us is easily distinguishable from the above
cases in that the petition is not otherwise lacking in supporting documentation. The cases are clear
that failure to include “even the defendant’s affidavit” in support of the petition’s allegations
without an explanation for its absence is considered unreasonable assistance. Turner, 187 Ill. 2d
at 414. In Turner and Collins, no affidavits, whether from the defendants or from witnesses, were
attached to the amended petition. Id.; Collins, 202 Ill. 2d at 67-68. In Ross, the only document
attached to the petition was not notarized and thus could not be considered an affidavit. Ross, 2015
IL App (3d) 130077, ¶ 16. In all three cases, it was not the lack of the defendants’ affidavit in
particular, but the lack of any supporting evidence at all that proved fatal to the defendants’
postconviction petitions. That cannot be said in the instant case. In support of the defendant’s
allegations, postconviction counsel attached Officer Baxton’s military records, notarized affidavits
from four alleged witnesses, and transcript excerpts from the trial and the civil deposition.
Postconviction counsel also made several references to information contained in the trial record in
support of counsel’s arguments. We find that the documents postconviction counsel provided are
more than sufficient to support the claims in the defendant’s amended postconviction petition and
an affidavit from the defendant was not necessary.
16 ¶ 48 The defendant then argues that postconviction counsel failed to properly amend his petition
by not including three viable claims from his pro se petition. The defendant argues that omitting a
viable claim or eliminating necessary allegations from the pro se petition is unreasonable
performance. People v. Addison, 2023 IL 127119, ¶ 24. The defendant alleges postconviction
counsel “inexplicably” removed claims that trial counsel (1) failed to pursue a guilty plea from the
State that the defendant had wanted to take, (2) failed to move for the inclusion of Lynch 2 evidence,
and (3) failed to litigate a motion to suppress the defendant’s physically coerced statements to the
police to the detriment of his petition. The defendant argues that the “plea of guilty” hearings on
the record sheet are proof that he intended to take the guilty plea and would have but for trial
counsel’s actions. He also argues that allegations from an unrelated civil case against Officer
Baxton, that was ongoing at the time of the defendant’s trial, and Officer Baxton’s military records
would have been admitted as evidence of Officer Baxton’s propensity for violence in support of
his self-defense claim. The defendant argues that had the motion to suppress his statements to the
police been litigated, the statements would have been suppressed, and the jury would have believed
his version of events.
¶ 49 The State argues that the record supports the presumption of reasonable assistance
regarding the removal of the claims. Postconviction counsel stated at the second-stage hearing that
the case was delayed due to his and the defendant’s collaborative efforts to present the best case
possible. Postconviction counsel’s billing statement references continual communication with the
defendant and includes the sending of a letter to the defendant, explaining the reasoning behind
removal of one of the claims along with a copy of the amended petition for review. Such letter has
2 In People v. Lynch, 104 Ill. 2d 194 (1984), the Illinois Supreme Court held that convictions for violent crimes can be used as evidence of a violent character for purposes of supporting defendant’s self- defense claim. 17 not been submitted with the common law record. The State argues that the transcripts of the “Plea
of Guilty” hearings and the defendant’s pursuit of a civil case against Officer Baxton indicate that
the defendant had no intention of taking a guilty plea. The State also argues that the trial court
would not have granted a motion to suppress as the video evidence clearly shows that the defendant
was uninjured, and the police did not physically coerce his statements.
¶ 50 We agree with the State that the defendant has not overcome the presumption of
reasonableness. As counsel did not withdraw, counsel was not required to explain why he removed
claims from the amended petition. A review of the record further contradicts the defendant’s
alleged proof that the claims could not possibly be considered meritless. While the trial court’s
record sheet lists multiple “Plea of Guilty” hearings, the related transcript and court orders for
those hearings clearly show that the judge, the State, the defendant’s counsel, and the defendant
himself treated them as status hearings. Discussions during the hearings addressed matters such as
the defendant’s fitness to stand trial, tolling the deadline for a speedy trial, discovery issues, and
testing evidence. No mention was made by the judge, the State, the defendant’s counsel, or the
defendant of ongoing plea negotiations. Further, during the June 25, 2012, hearing, defendant
indicated to the court that he wanted to proceed to trial. Therefore, we find that postconviction
counsel was not unreasonable for failing to include a claim that trial counsel was ineffective for
failing to pursue a guilty plea where the record demonstrated that the defendant wanted to proceed
to trial.
¶ 51 Also, we find that the Lynch claim relating to the civil case is barred by res judicata. As
stated above, this court has previously affirmed the trial court’s orders on the defendant’s pro se
posttrial filings, including his allegation that the trial court was in error for not allowing evidence
of Officer Baxton’s alleged prior bad acts. Gillum, 2017 IL App (5th) 140450-U. By affirming,
18 this court ultimately upheld the trial court’s ruling that allegations in a separate ongoing civil case
do not qualify as admissible evidence of violent behavior. Id. As to the military records, having
reviewed them, they do not contain any allegations of violent behavior. Thus, the records are
impermissible to be used as evidence for Lynch purposes. Postconviction counsel’s decision to not
include these claims was not unreasonable.
¶ 52 Finally, the defendant alleges that postconviction counsel was unreasonable for not
including his claim that trial counsel was ineffective for failing to litigate a motion to suppress
statements the defendant made to the police. The State argues that, as the record does not indicate
that the statements at issue were involuntary, trial counsel made a deliberate strategic decision to
withdraw the motion, and, therefore, the defendant’s claim was meritless.
¶ 53 Failure to include a claim that trial counsel failed to file a motion to suppress a coerced
statement may be considered unreasonable assistance of postconviction counsel. People v.
Barmore, 2022 IL App (2d) 200449-U. While the decision to file a motion to suppress generally
falls under trial strategy, the failure to file a motion to suppress a statement can be considered
ineffective assistance of trial counsel if there is some indication that the statements were truly
involuntary. People v. Brickhouse, 2021 IL App (3d) 150807, ¶ 40. In Barmore, trial counsel had
affidavits from the defendant and his mother alleging specific abuse from the police in obtaining
the defendant’s statement but failed to file a drafted motion to suppress. Barmore, 2022 IL App
(2d) 200449-U, ¶ 34. Postconviction counsel was then found unreasonable for not attaching the
affidavits or the drafted motion to suppress in support of the ineffective assistance of trial claim.
Id. ¶ 36. Unlike in Barmore, the defendant’s trial counsel in this case did not fail to file nor did
counsel fail to pursue the motion. Rather, the record shows, and the defendant admits, that trial
counsel made a deliberate decision to withdraw the filed motion. The video of the confession,
19 which is part of the record on appeal, supports trial counsel’s decision to withdraw the motion as
there are no indications that the defendant was physically injured immediately prior to his
confession. As such, the record contradicts the defendant’s allegations that his statements to the
police were involuntary. Therefore, trial counsel’s decision to withdraw the motion to suppress
falls under trial strategy, and postconviction counsel was not unreasonable for not including the
claim in the amended postconviction petition.
¶ 54 Based on the above, we find that the defendant has failed to rebut the presumption of
reasonable assistance of postconviction counsel. Thus, we deny his request to reverse the trial
court’s order and grant a new second-stage hearing.
¶ 55 B. Dismissal of Amended Petition at the Second Stage
¶ 56 The defendant argues that his amended petition made a substantial showing that his trial
counsel was ineffective for failing to investigate and present testimony from four supporting
eyewitnesses who would have testified consistently with the defendant’s version of events and for
failing to impeach Officer Baxton’s testimony by attacking his credibility with prior inconsistent
statements and his military disciplinary records. The State argues that the witnesses lacked
credibility because they were jailhouse witnesses and, given the presence of the video evidence,
trial counsel was not unreasonable for deciding against presenting their testimony. The State
further argues that the impeachment evidence was inadmissible, barred, and/or would not have
altered the outcome of the trial.
¶ 57 As stated above, this appeal arises at the second stage of the postconviction petition. Since
the second stage of postconviction proceedings involves a purely legal determination, the trial
court is precluded from engaging in any fact-finding or credibility determinations. People v.
Coleman, 183 Ill. 2d 366, 380-81 (1998). Therefore, we take all allegations in the petition not
20 rebutted by the record as true and review the petition de novo. Id. at 388; People v. Sanders, 2016
IL 118123, ¶ 31. To proceed to a third-stage postconviction hearing, the amended petition must
make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 381. A defendant
can establish a constitutional violation by showing that the defendant’s trial attorney provided
ineffective assistance of counsel. Strickland, 466 U.S. at 687.
¶ 58 To establish that counsel was ineffective under the Strickland test, a defendant must show
that (1) his attorney’s performance was objectively unreasonable and (2) the defendant suffered
prejudice as a result. Id.; People v. Manning, 227 Ill. 2d 403, 412 (2008). Counsel’s performance
is measured by an objective standard of competence under prevailing professional norms. People
v. Evans, 186 Ill. 2d 83, 93 (1999). The effectiveness of counsel must be assessed against an
“objective standard of reasonableness from the perspective of the time of the alleged error and
without hindsight.” People v. Reed, 2014 IL App (1st) 122610, ¶ 66. However, “strategic choices
that are made after investigation of the law and the facts are virtually unassailable.” People v.
Ramsey, 239 Ill. 2d 342, 433 (2010). As for the prejudice prong of the Strickland test, a defendant
must show that, but for counsel’s deficient performance, there is a reasonable probability that the
result of the proceeding would have been different. People v. Houston, 226 Ill. 2d 135, 144 (2007).
¶ 59 1. Failure to Investigate Witnesses
¶ 60 While strategic choices made after a thorough investigation are virtually unchallengeable,
a lawyer cannot make a strategic decision about evidence of which he is unaware. See Strickland,
466 U.S. at 690-91. Therefore, should a lawyer fail to investigate known witnesses who may be
able to support otherwise uncorroborated defense testimony, any decision made regarding the
witnesses’ testimony cannot be said to be strategic. Id. This court has previously held that a failure
21 to present witnesses who can support otherwise uncorroborated testimony can be considered
unreasonable. People v. King, 316 Ill. App. 3d 901, 913 (2000).
¶ 61 Here, defendant alleges that trial counsel failed to speak with four identified witnesses prior
to trial. The witnesses signed affidavits regarding their testimony on February 8, 2013; February
10, 2013; and December 5, 2013, well before the trial date of March 24, 2014. The defendant
alleges that his trial counsel never contacted the witnesses, and there is nothing in the record that
contradicts his allegations. As trial counsel never met with the witnesses, he was unaware of the
contents of their testimony and incapable of determining their credibility. As such, his decision
not to present any defense witnesses cannot be considered to be a strategic choice. Therefore, the
defendant has shown that trial counsel’s representation was objectively unreasonable and has met
the first prong of the Strickland test.
¶ 62 As for the second prong, taking the allegations in the amended petition as true, but for trial
counsel’s decision, four witnesses would have offered testimony of the shooting that would have
supported the defendant’s self-defense claim. Without weighing in on the persuasiveness of the
witnesses’ testimony, as that is the role of the postconviction court at the third-stage evidentiary
hearing, it is possible that a jury may have found the witnesses’ testimony compelling. As such,
the defendant has made a substantial showing that trial counsel’s failure to investigate the four
potential witnesses created prejudice against him. As the defendant has made a substantial showing
that his allegations satisfy both prongs of the Strickland test, we find that the trial court’s decision
to dismiss this claim at the second stage was in error, and we remand for a third-stage evidentiary
hearing.
22 ¶ 63 2. Failure to Impeach
¶ 64 The defendant argues that his trial counsel was ineffective for not attempting to impeach
Officer Baxton with Officer Baxton’s deposition testimony from the defendant’s civil case against
him. The defendant further argues that trial counsel failed to attack Officer Baxton’s credibility
with his military disciplinary records that were available to counsel at the time of trial. The State
argues that the deposition testimony did not contain any substantial discrepancies from Officer
Baxton’s trial testimony and that the military disciplinary records were ineligible to be used for
Lynch purposes.
¶ 65 “[T]he complete failure to impeach the sole eyewitness when significant impeachment is
available is not trial strategy ***.” People v. Salgado, 263 Ill. App. 3d 238, 246-47 (1994). In
Salgado, the witness in question had testified prior that he had not seen the defendant shoot the
victim, but under oath testified that he had witnessed the defendant commit the act. Id. Likewise,
in People v. Garza, 180 Ill. App. 3d 263, 269-70 (1989), the witness had previously testified that
the shooter had notable scars and a tattoo, which did not match the defendant’s description. It is
unquestionable that conflicting testimony regarding the identity of the alleged attacker is
significant.
¶ 66 Here, the difference in testimony is negligible. The defendant alleges that in the civil
deposition, Officer Baxton testified that he first drew his service weapon after struggling with the
defendant and then holstered it to draw his pepper spray. However, during the trial, Officer Baxton
testified to drawing and holstering his service weapon prior to, and again after, the scuffle with the
defendant. We note that this is the only inconsistency alleged by the defendant. As the State argues,
the minor inconsistency only strengthens the remaining consistent testimony. Thus, trial counsel’s
23 decision not to impeach Officer Baxton with a prior inconsistent statement falls under trial strategy
and does not pass the first prong of the Strickland test.
¶ 67 As to Officer Baxton’s military disciplinary records, the defendant alleges that the use of
the records would have shown a pattern of misconduct and a history of untruthfulness. This appears
to be an allegation of failure to impeach using reputation evidence. For reputation evidence to be
used for impeachment purposes, counsel must establish the general reputation of the witness’s
truthfulness in his neighborhood, his work, or his social circle at the time of trial. People v. Kliner,
185 Ill. 2d 81, 173 (1998).
¶ 68 The disciplinary action against Officer Baxton occurred in 2005. The defendant’s trial
occurred in March of 2014. It is not unreasonable, then, that trial counsel would discount a
disciplinary action from nine years before the trial as proof of Officer Baxton’s current reputation
for honesty or lack thereof.
¶ 69 Based on the above, we find that the defendant has failed to make a substantial showing
that trial counsel was unreasonable when deciding not to impeach the State’s witness based on
minor inconsistencies in testimony and irrelevant military records. However, since we find that the
defendant has made a substantial showing that trial counsel was ineffective for failing to
investigate four defense witnesses, we remand the matter for a third-stage evidentiary hearing.
¶ 70 III. CONCLUSION
¶ 71 For the foregoing reasons, we reverse the trial court’s judgment finding that the defendant
failed to make a substantial showing as to his claim that trial counsel provided ineffective
assistance by failing to investigate four defense witnesses, and we remand the matter for a third-
stage evidentiary hearing on that claim. We otherwise affirm the court’s judgment on the remaining
postconviction claims.
24 ¶ 72 Affirmed in part and reversed in part.
¶ 73 Cause remanded.