People v. Griffin

2022 IL App (1st) 191101-B

Opinion

2022 IL App (1st) 191101-B No. 1-19-1101 Second Division March 31, 2022 ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 10 CR 1910 v. ) ) SHAMAR GRIFFIN, ) Honorable ) Michael B. McHale Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion. OPINION

¶1 On June 16, 2011, defendant-appellant Shamar Griffin pled guilty to one count of first

degree murder and was sentenced to 35 years’ imprisonment. On February 4, 2019, defendant filed

a motion for leave to file a successive postconviction petition pursuant to the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), which advanced claims of ineffective

assistance of counsel and actual innocence supported by affidavits from himself, Lavonte Moore,

and Perrier Myles. The circuit court denied leave to file the successive postconviction petition.

Defendant now appeals, arguing that (1) the court incorrectly held that he was not permitted to No. 1-19-1101

pursue a claim of actual innocence after entering a guilty plea and he had set forth a colorable

claim of actual innocence and (2) he demonstrated both cause and prejudice for his claim of

ineffective assistance of counsel. For the following reasons, we reverse and remand for further

proceedings under the Act.

¶2 I. BACKGROUND

¶3 Defendant was charged with 29 counts related to two shootings that occurred on June 26,

2009. For the shooting death of Milissa Williams, he was charged with 24 counts of first degree

murder. For the shooting of Otis Houston, he was charged with four counts of attempted first

degree murder and one count of aggravated battery with a firearm. Assistant Public Defender

(APD) Robert Strunck represented defendant throughout the proceedings. On March 23, 2011,

APD Strunck reported to the court that he had negotiated with the State and had tendered the

State’s offer to defendant.

¶4 On May 10, 2011, defendant requested the circuit court to appoint new counsel, stating that

APD Strunck was “ineffective” and had only visited him once during the 18 months he had been

in jail. APD Strunck responded that he had spent multiple hours at the jail with defendant and had

spoken to him on the phone on multiple occasions. APD Strunck had also informed defendant that

it was a very difficult case and explained that defendant could review the police reports in APD

Strunck’s presence later that week. The court determined that there was nothing to indicate that

APD Strunck could not continue to effectively represent defendant. The court further explained to

defendant that it did not have the ability to assign a different public defender and that defendant’s

only other option was to hire private counsel.

¶5 On June 16, 2011, defendant accepted the State’s offer to plead guilty to one count of first

degree murder in exchange for a 35-year prison term. At the time defendant entered the plea, he

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acknowledged that he was giving up his right to trial and his right to a presentence investigation

report and that no one had threatened him or promised him anything in exchange for the plea. He

signed a written waiver form stating the same.

¶6 The State presented the factual basis for defendant’s plea as follows.

¶7 Lavertice Harmon provided a statement that he was playing dice on North LeClaire Avenue

in Chicago with Leroy Battle, Kevin Barnes, and others around 3 a.m. when defendant arrived in

a dark-colored vehicle with its headlights off. Defendant, who was armed with a handgun, told

Harmon that the car was stolen, that Williams had stabbed defendant in the past, and that he was

“fixin’ to merk that b***,” which Harmon knew meant to kill Williams. Harmon asked defendant

to wait so that he could get his friends out of the area, and defendant drove around the block. In

the meantime, Harmon warned Williams and Houston. As Williams and Houston began walking

toward LaFollette Park, defendant returned, got out of his car, and approached Williams. Harmon

did not hear what defendant and Williams said to one another, but he did observe defendant fire a

single shot at Williams and multiple shots at Houston. Defendant fired once more at Williams

before getting back in his car and driving away.

¶8 Houston would testify that, at around 3:30 a.m. on June 26, 2009, defendant shot Williams

twice near 5101 West Hirsch Street in Chicago, then chased him down and shot him four times,

three times in the bicep and once in the right side of his chest. Houston would also testify that he

identified defendant in a physical lineup.

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¶9 The State also submitted the grand jury testimony of Barnes and Battle, who both identified

defendant as the shooter. Further, the State submitted the grand jury testimony of Carlton Winters,

who testified that defendant admitted to the shooting in a phone conversation. 1

¶ 10 Though not part of the State’s factual basis, defendant’s confession to the police on

December 22, 2009, is relevant to the disposition of this appeal, and thus we summarize that

statement, as it is found in the police report, which is in the record on appeal. Defendant stated that

he was stabbed by Williams in April 2009 and, on the day of the shooting, he was only trying to

send her a message, not kill her. He admitted that he fired multiple shots at both Williams and

Houston, though he claimed he did not know their names prior to the shooting.

¶ 11 The circuit court accepted defendant’s plea and, in accordance with the negotiations,

sentenced him to 35 years’ imprisonment on June 16, 2011. The court advised defendant of his

right to appeal and informed him that he would first have to file a motion to withdraw his guilty

plea within 30 days.

¶ 12 Defendant did not file a timely motion to withdraw his plea. He filed a notice of appeal on

August 31, 2011, which the circuit court denied. On November 16, 2011, this court allowed

defendant’s late notice of appeal. On September 6, 2012, we granted the parties’ agreed motion

for summary remand and directed the clerk of the circuit court to modify certain monetary

assessments imposed against defendant. People v. Griffin, No. 1-11-3210 (2012) (unpublished

summary order under Illinois Supreme Court Rule 23(c)).

¶ 13 On September 17, 2017, defendant filed an initial pro se postconviction petition in which

he claimed actual innocence based on his own affidavit and documents obtained through a

1 None of the referenced grand jury testimony transcripts appear in the record on appeal.

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Freedom of Information Act request. See 5 ILCS 140/1 et seq. (West 2016). In particular,

defendant alleged that his inculpatory statement should have been suppressed because the police

officers who arrested him in Atlanta, Georgia, did not have a warrant or probable cause. He also

alleged mistreatment while in police custody and that for 30 hours he “was threatened and forced

to confess.” Finally, he claimed that his counsel was ineffective for failing to investigate his illegal

arrest. The circuit court summarily dismissed the petition. On appeal to this court, defense counsel,

appointed from the Office of the State Appellate Defender, filed a motion to withdraw pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987). This court granted the motion as “there [were] no

issues of arguable merit to be pursued on appeal.” People v. Griffin, No. 1-18-0490 (2020)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 14 On February 4, 2019, while his initial postconviction petition was still pending before this

court, defendant sought leave to file the successive postconviction petition that is the subject of

this appeal.

¶ 15 The successive petition first makes a claim of ineffective assistance of counsel, alleging

that his trial counsel, APD Strunck, was ineffective for failing to investigate Butler as the actual

shooter, which defendant instructed him to do “after 14 months” of awaiting his trial because he

“was hearing around the jail that was the person who killed [Williams].” 2 Defendant stated that

APD Strunck informed him that “since [he] confessed to the murder there is no defense that can

help [him],” and defendant informed trial counsel that his confession was false and was the result

of duress, psychological abuse, and mental coercion.

2 We note that defendant does not identify the source of this information and now claims that he learned of Butler’s involvement specifically from Moore and Myles in prison after he pled guilty.

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¶ 16 The petition then sets forth a claim of actual innocence based on the newly discovered

evidence contained in the affidavits of Moore and Myles, both of whom spoke with defendant in

prison. In his petition, defendant alleged that he did not know about the information Moore and

Myles had until he spoke with them in prison.

¶ 17 Moore averred that he witnessed the shootings while sitting in his parked car across from

LaFollette Park. Moore stated that he observed Jerrell Butler emerge from an alley and walk past

his car toward a group of people. As Butler passed Moore’s car, he said “wassup,” to Moore and

then he pulled out a gun from his waistband. Moore heard five gunshots and saw Butler run past

his car again. Moore never mentioned this to anyone before encountering defendant in prison in

November 2018 because he was afraid of retaliation from Butler and Butler’s friends.

¶ 18 Myles, who was incarcerated at the time of the shooting, averred that he was aware that his

friends, Cornell McWilliams, Barnes, and Harmon witnessed the shooting and informed the police

that defendant was the shooter. He further averred that after his release he spoke with McWilliams

and was told that defendant was a scapegoat “so that [Harmon] and [Barnes’s] drug business

[could] continue without further pressure from Chicago police.” McWilliams admitted to Myles

that they did not see the shooter’s face but said he was light-skinned with braids. This description

confused Myles because he knew that defendant is dark-skinned with dreadlocks. According to

Myles, McWilliams further stated that he, Harmon, and Barnes contacted the police to make false

accounts identifying defendant as the shooter and that he later learned that Houston owed Butler

money from drug sales and he believed that Butler was the actual shooter because Houston owed

Butler a drug debt. Myles was incarcerated again, and on June 29, 2018, he informed defendant of

the conversation with McWilliams.

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¶ 19 Defendant’s petition also contains a section titled “Newly Discovered Evidence of Police

Misconduct” of Chicago police detectives John Folino and Tim McDermott and listed 11 lawsuits,

which were attached to the petition. Defendant makes no arguments regarding the police

misconduct lawsuits on appeal.

¶ 20 On April 5, 2019, the circuit court denied defendant’s motion for leave to file his successive

petition. Citing People v. Simmons, 388 Ill. App. 3d 599 (2009), the court stated that “petitioner

cannot make a claim of actual innocence after a proper constitutionally compliant guilty plea.” The

court further noted that defendant did not include any allegations that he was coerced into the plea.

The court made no reference to defendant’s claim of ineffective assistance of counsel. This appeal

followed. 3

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant first argues that his actual innocence claim is not barred by his guilty

plea and that he has made a colorable claim of actual innocence based on newly discovered

evidence in the form of affidavits demonstrating that Butler was the actual shooter and that two

witnesses named in the factual basis for his plea provided false statements. Defendant also claims

that the circuit court ignored his claim of ineffective assistance of counsel. Defendant argues that

he established cause and prejudice for his ineffective assistance of counsel claim, which alleged

counsel’s failure to investigate whether Butler was the actual shooter before allowing defendant to

enter a guilty plea. As such, defendant contends that this court should remand his petition for

second stage proceedings.

3 We previously issued a summary order dismissing this appeal for lack of jurisdiction. Pursuant to a supervisory order from the Illinois Supreme Court, the summary order was vacated, defendant’s appeal was reinstated, and we now consider the appeal on the merits.

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¶ 23 A. The Act

¶ 24 The Act provides a method for a criminal defendant to collaterally attack a conviction by

asserting that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-

1(a)(1) (West 2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act contemplates the filing of

only one petition without leave of court. People v. Lusby, 2020 IL 124046, ¶ 27. There are two

bases upon which the bar against successive petitions will be relaxed: (1) where the petitioner can

establish cause and prejudice for the failure to assert a postconviction claim in an earlier

proceeding or (2) where the petitioner asserts a fundamental miscarriage of justice based on his

actual innocence. People v. Robinson, 2020 IL 123849, ¶ 42. Because defendant has alleged both

bases in his petition and on appeal, we will separately set forth the principles of law applicable to

each type of postconviction claim. Nonetheless, under either basis at this stage, we must accept as

true all well-pled allegations that are not positively rebutted by the record, and we may not make

fact or credibility determinations. Id. ¶ 45. Our review of the denial of leave to file a successive

petition is de novo. Id. ¶¶ 39-40.

¶ 25 We first address defendant’s actual innocence claim.

¶ 26 B. Actual Innocence

¶ 27 1. Freestanding Claim of Actual Innocence

¶ 28 As a preliminary matter, we must address the State’s argument that defendant has not

alleged a freestanding actual innocence claim. The State contends that the claim is not freestanding

because it is based upon the same newly discovered evidence supporting defendant’s claim of

ineffective assistance of counsel.

¶ 29 The concept of freestanding actual innocence claims under the Act can be traced back to

our supreme court’s decision in People v. Washington, 171 Ill. 2d 475 (1996). There, the defendant,

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who was convicted for murder, had submitted an affidavit (and later in camera testimony was

heard) from an individual who identified the shooter as someone other than the defendant. Id. at

476-77. In his postconviction petition, the defendant alleged, inter alia, ineffective assistance of

trial counsel and newly discovered evidence based on both the affidavit and testimony. Id. at 477-

78. The question before the supreme court was whether the defendant could pursue a newly

discovered evidence claim under the Act. Id. at 479-80. Though the court determined that a

freestanding claim of innocence was not cognizable as a fourteenth amendment due process claim,

it held that such claims were cognizable under the Act as a matter of due process afforded by the

Illinois Constitution. Id. at 485-89. In so holding, the court noted that “to ignore such a claim

would be fundamentally unfair” and “[i]mprisonment of the innocent would also be so conscience

shocking as to trigger operation of substantive due process.” Id. at 487-88.

¶ 30 Relying on Washington, our supreme court two years later in People v. Hobley defined a

claim of actual innocence as freestanding where “the newly discovered evidence being relied upon

‘is not being used to supplement an assertion of a constitutional violation with respect to [the]

trial.’ ” 182 Ill. 2d 404, 443-44 (1998) (quoting Washington, 171 Ill. 2d at 479). Based on this, the

court held that the defendant, who had been convicted of murder, arson, and aggravated arson, had

not properly raised a freestanding claim of actual innocence because his new evidence, which was

a fingerprint report and information regarding a second gasoline can, was also being used to

establish a violation of his constitutional right to due process under Brady. Id. at 444.

¶ 31 Subsequently, in People v. Orange, 195 Ill. 2d 437 (2001), the court reiterated its holding

in Hobley. In Orange, the court once again noted that a freestanding actual innocence claim cannot

rely upon evidence “ ‘ “used to supplement an assertion of a constitutional violation with respect

to [the] trial.” ’ ” Id. at 459 (quoting Hobley, 182 Ill. 2d at 444, quoting Washington, 171 Ill. 2d at

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479). The court then found that the defendant’s actual innocence claim was not permissible

because he used the same documentation to support both his actual innocence claim and a claim

that his trial was unconstitutional because his confession was involuntary. Id. at 459-60.

¶ 32 In several subsequent cases, the appellate court has relied upon the rule in Hobley in

rejecting actual innocence claims in postconviction petitions. See, e.g., People v. Jackson, 2018

IL App (1st) 171773, ¶ 71; People v. Gonzalez, 2016 IL App (1st) 141660, ¶¶ 29-30; People v.

English, 403 Ill. App. 3d 121, 132-33 (2010). But see People v. Martinez, 2021 IL App (1st)

190490, ¶ 102 (although ultimately following supreme court precedent, this court critiqued the

rule in Hobley, stating that the rule “deviated from both the spirit and the letter of the law as set

forth in Washington”). The State additionally cites People v. Zareski, 2017 IL App (1st) 150836,

for support. In Zareski, this court, in passing, referenced Hobley and stated that the defendant’s

appellate counsel could not have pursued both a claim that a newly discovered witness affidavit

established actual innocence and that trial counsel was ineffective for failing to discover and

investigate the witness. Id. ¶ 71.

¶ 33 In his reply brief, however, defendant contends that the supreme court made it clear in

People v. Coleman, 2013 IL 113307, that “a petitioner who can state a freestanding claim of actual

innocence and a deprivation of a constitutional right during the proceedings that resulted in his

conviction is not required to choose which claim to pursue.” (Emphasis in original.) Specifically,

the court stated: “Where a defendant makes a claim of trial error, as well as a claim of actual

innocence, in a successive postconviction petition, the former claim must meet the cause-and-

prejudice standard, and the latter claim must meet the Washington standard.” Id. ¶ 91. We

acknowledge the court’s comment in Coleman but reject any suggestion that by that comment the

court overruled either Hobley or Orange. We read the court’s comment as merely identifying the

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applicable standard for the different types of claims. In point of fact, the court made no reference

to Hobley or its apparent rule that the different claims may not rely on the same supporting

documentation in order for the actual innocence claim to be freestanding. Thus, we reject

defendant’s interpretation of the court’s comment.

¶ 34 Defendant further asserts that the State has misinterpreted the holdings in Hobley and

Orange. According to defendant, the court determined in both Hobley and Orange that the newly

discovered evidence “did not stand on its own” to support a due process violation. The defendant

distinguishes the evidence in both of those cases from that presented in Washington, specifically

that the defendant in Washington had witness affidavits corroborating the defendant’s innocence,

whereas the defendant in Orange had only evidence of police torture in obtaining evidence, and

the defendant in Hobley had evidence of a fingerprint analysis and a second gasoline can that was

later destroyed, as well as evidence of police torture. Although factually accurate, we disagree that

the court in either Hobley or Orange based its conclusion on the nature or type of evidence

presented. Instead, as we previously stated, the court’s disposition was based on the fact that the

same evidence was being used to support both the actual innocence claims and claims of

constitutional error. The Hobley court created a rule that disallowed petitioners from using newly

discovered evidence demonstrating actual innocence to also support alternative claims of

constitutional trial error within the same postconviction petition.

¶ 35 Ultimately, this court is bound to follow supreme court precedent. We find, however, that

because defendant’s actual innocence claim is supported by evidence that is different than the

evidence supporting his ineffective assistance of counsel claim, the rule espoused in Hobley is not

violated. See Martinez, 2021 IL App (1st) 190490, ¶ 106 (concluding that Hobley did not preclude

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the defendant’s actual innocence claim, as it incorporated additional supporting documentation

that was not applicable to the defendant’s claims based on police misconduct and Brady).

¶ 36 Specifically, in his petition, defendant sets forth two arguments. His first argument is titled

“Ineffective assistance of counsel for failure to investigate an individual name[d] Jerrell Butler

who I was hearing around the jail that was the person who killed [Williams].” He references

“psychological abuse” and “mental coercion” by the detectives, which resulted in his confession.

He does not specifically cite any supporting documentation for this claim.

¶ 37 Defendant’s second argument is titled, “Newly discovered evidence of actual innocence

from affidavit of Lavonte Moore.” He then sets forth the contents of Moore’s affidavit. Next, there

is a header stating “Supporting Affidavit from Perrier Myles” followed by the contents of that

affidavit, and then a header stating “Newly discovered evidence of police misconduct of Det. John

Folino and Tim McDermott,” followed by a list of lawsuits filed against those detectives. The

lawsuits, defendant’s affidavit, and Myles’s and Moore’s affidavits are attached to his petition as

exhibits.

¶ 38 Because defendant neither relies on nor references any of the exhibits supporting his

ineffective assistance of counsel claim in support of his actual innocence claim, we find that the

two claims are not based on the same documentation. Arguably either of defendant’s two claims

may be bolstered by evidence supporting the other. However, we cannot conclude that the two

claims share the same evidentiary foundation. Moreover, any references to the supporting

documentation on appeal are irrelevant, as the allegations in his petition control. Accordingly, we

conclude that defendant’s actual innocence claim is not violative of the Hobley rule and, therefore,

constitutes a freestanding claim.

¶ 39 2. Effect of Guilty Plea

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¶ 40 Although our review is de novo, we recite the reasoning for the circuit court’s denial, i.e.

that a defendant who has entered a valid guilty plea cannot later pursue a claim of actual innocence.

In so concluding, the circuit court relied on Simmons, 388 Ill. App. 3d 599, which was recently

overruled by our supreme court in People v. Reed, 2020 IL 124940.

¶ 41 In Reed, the defendant, who pled guilty to armed violence, filed a motion for leave to file

a successive postconviction petition alleging actual innocence accompanied by a supporting

witness affidavit. 2020 IL 124940, ¶¶ 9-11. The petition advanced to a third stage evidentiary

hearing, where testimony was heard from the witness. Id. ¶ 13. The circuit court denied the

petition, finding that the evidence was not conclusive, and on appeal, this court affirmed the denial

but did so because it found that a guilty plea forecloses a postconviction claim of actual innocence.

Id. ¶¶ 14-15.

¶ 42 Our supreme court granted the defendant’s petition for leave to appeal (id. ¶ 16) and was

then confronted with an issue of first impression: whether a defendant who pleads guilty waives

any claim of actual innocence under the Act (id. ¶ 24). The court answered the question in the

negative. Id. ¶ 37.

¶ 43 In its analysis, the court first discussed the motives and consequences of plea agreements,

from which both the State and the defendant benefit and make concessions. Id. ¶ 25. On the one

hand, the State benefits by preserving resources through a prompt and final disposition of a

criminal case, but in doing so, the State sacrifices the ability to investigate the case further, add or

dismiss charges, and present the entirety of the evidence before the court. Id. On the other hand,

the defendant benefits by obtaining a more favorable sentence, the dismissal of charges, and

avoiding a trial that is often costly and involves protracted proceedings. Id. ¶ 26. However, the

court noted that the concessions a defendant must make are severe, where a guilty plea is an

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admission of guilt, and a defendant must waive certain rights, including “all nonjurisdictional

defenses or defects.” (Internal quotation marks omitted.) Id. ¶ 27.

¶ 44 The State argued that allowing guilty plea defendants to pursue actual innocence claims

would discourage it from conducting plea negotiations in the future due to the lack of finality and

that a defendant was foreclosed from pursuing an actual innocence claim based on his waiver of

rights in entering a guilty plea. Id. ¶ 28. The court, however, disagreed with the State, noting that

a “defendant’s waiver of his right to challenge the State’s proof of guilt beyond a reasonable doubt

at trial should not impact his actual innocence claim.” Id. ¶ 31. The court reasoned that actual

innocence claims are separate and independent from challenges to the sufficiency of the evidence

or claims that an error in the proceedings led to the conviction. Id. ¶¶ 29, 31.

¶ 45 Ultimately, the supreme court held that the defendant’s guilty plea did “not prevent him

from asserting his right to not be deprived of life and liberty given compelling evidence of actual

innocence under the Act.” Id. ¶ 37. In so ruling, the court explained that a guilty plea does not

guarantee factual validity of a conviction and “is no more foolproof than full trials,” where (1) “the

decision to plead guilty may be based on factors that have nothing to do with defendant’s guilt”

such as the hope for a more lenient sentence, (2) a defendant may continue to assert his innocence

despite his plea, and (3) the State’s factual basis for the plea is held to a less stringent level of proof

than at trial. (Internal quotation marks omitted.) Id. ¶¶ 33-35. Thus, when a trial court is “met with

a truly persuasive demonstration of innocence, a conviction based on a voluntary and knowing

plea is reduced to a legal fiction,” and additional due process is triggered despite the defendant’s

waiver of all nonjurisdictional defects. Id. ¶ 35.

¶ 46 Accordingly, pursuant to Reed, defendant here is permitted to raise a claim of actual

innocence based on newly discovered evidence notwithstanding his guilty plea.

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¶ 47 3. Leave-To-File Stage Standard

¶ 48 Prior to addressing defendant’s actual innocence claim, we must first determine the

appropriate standard governing our review, which the parties dispute on appeal. Currently, the

preeminent case on the appropriate standard of review for actual innocence claims in successive

postconviction petitions at the leave-to-file stage is Robinson, 2020 IL 123849. There, our supreme

court stated that the standard at the leave-to-file stage is higher than that applicable to the first

stage of an initial petition, which merely requires that the petition not be frivolous or patently

without merit. Id. ¶ 43. The supreme court, relying upon the well-established caselaw regarding

successive postconviction petitions and actual innocence claims, set forth the following principles

of law:

“A request for leave to file a successive petition should be denied only where it is

clear from a review of the petition and supporting documentation that, as a matter of law,

the petition cannot set forth a colorable claim of actual innocence. [Citation.] Accordingly,

leave of court should be granted where the petitioner’s supporting documentation raises

the probability that it is more likely than not that no reasonable juror would have convicted

the petitioner in light of the new evidence. [Citation.]

At the pleading stage of postconviction proceedings, all well-pleaded allegations in

the petition and supporting affidavits that are not positively rebutted by the trial record are

to be taken as true. [Citations]. In deciding the legal sufficiency of a postconviction

petition, the court is precluded from making factual and credibility determinations.

[Citations.]

***

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To establish a claim of actual innocence, the supporting evidence must be (1) newly

discovered, (2) material and not cumulative, and (3) of such conclusive character that it

would probably change the result on retrial.” Id. ¶¶ 44-47.

¶ 49 The parties debate in their briefs whether the prevailing standard set forth in Robinson

should apply or the standard espoused in Reed. In Reed, after determining that guilty plea

petitioners could pursue actual innocence claims, the majority identified the applicable standard

of review for evaluating such claims following a third stage evidentiary hearing. “[A] successful

actual innocence claim requires a defendant who pleads guilty to provide new, material,

noncumulative evidence that clearly and convincingly demonstrates that a trial would probably

result in acquittal.” (Emphasis added.) Reed, 2020 IL 124940, ¶ 49. The court also stated that it

must be determined “whether the new evidence places the evidence presented in the underlying

proceedings in a different light and ‘undercuts the court’s confidence in the factual correctness’ of

the conviction.” Id. (quoting Coleman, 2013 IL 113307, ¶ 97). This higher standard, the court

noted, struck a balance between “the defendant’s constitutional liberty interest in remaining free

of undeserved punishment and the State’s interest in maintaining the finality and certainty of plea

agreements.” Id. ¶ 50. Finally, the court addressed its new “clear and convincing” standard, stating

that the standard inherently requires that the court find the evidence to be reliable. Id. In a footnote,

the court recognized that a finding that the evidence is reliable would only be made at the third

stage because “all well-pled facts must be taken as true at the motion to dismiss stage.” Id. ¶ 50

n.2 (citing People v. Sanders, 2016 IL 118123, ¶ 42).

¶ 50 Both parties cite Justice Michael J. Burke’s special concurrence in Reed for support of their

respective positions: defendant for Justice Burke’s acknowledgement that the majority failed to

address the other stages of postconviction review and the State for Justice Burke’s suggestion of a

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higher standard than Robinson at the leave-to-file stage. We note in passing that Justice Burke

dissented from the majority’s opinion in Robinson and stated in his Reed concurrence that the

Robinson standard was “so vague as to be virtually meaningless.” Reed, 2020 IL 124940, ¶ 65

(Burke, J., specially concurring).

¶ 51 Defendant asserts that Reed’s “clear and convincing” standard would not be appropriate at

the leave-to-file stage because “determinations as to the reliability of the evidence can only be

made at the third stage evidentiary hearing” and thus, the standard set forth in Robinson should be

applied in this context of guilty plea petitioners at the leave-to-file stage. Conversely, the State

contends that the standard for guilty plea petitioners should be more stringent at the leave-to-file

stage than the standard set forth in Robinson. Notably, the State does not offer a definitive standard

for this court to apply and ultimately analyzes and rejects defendant’s actual innocence claim under

the Robinson standard.

¶ 52 In this appeal, we are presented with a guilty plea petitioner whose petition was denied at

the leave-to-file stage, rather than, like in Reed, after a third stage evidentiary hearing. Thus, we

believe that the standard set forth by our supreme court in Robinson, at the leave to file stage,

regardless of whether the underlying judgment was based on a guilty plea or a trial, is most

appropriate. Contrary to the State’s argument, we do not believe that following Robinson at this

stage runs counter to the court’s pronouncement in Reed to subject guilty plea petitioners to a more

stringent standard. To receive relief, i.e., vacating a defendant’s conviction and allowing the

opportunity for a trial, petitioners must still satisfy the clear and convincing standard with evidence

adjudged reliable following an evidentiary hearing if the petition reaches the third stage under the

Act. The high hurdle espoused in Reed ultimately remains in place for guilty plea petitioners.

Moreover, the supreme court’s express acknowledgement that the reliability of evidence can only

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be determined, and thus clear and convincing, after an evidentiary hearing implies that Reed’s

higher standard would only be employed at the third stage, and additionally suggests that the court

considered the earlier stages of postconviction proceedings and intentionally abstained from

announcing a separate standard for those stages. For these reasons, we find that the supreme court

in Reed did not supplant the Robinson standard in evaluating petitions at the leave-to-file stage and

thus, we apply the Robinson standard here.

¶ 53 We reject the State’s reliance on People v. Patel, 2021 IL App (3d) 170337, and People v.

Rocha, 2021 IL App (1st) 191714-U, for support of its argument that the standard espoused in

Reed should apply here. Again, unlike the case before us, Reed was decided in the context of a

third stage evidentiary hearing. Further, although both Patel and Rocha were decided in the wake

of Reed and involved guilty plea petitioners, both involved petitions pursuant to section 2-1401 of

the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)). In Patel, the Third District found

that the defendant could raise a claim of actual innocence based on newly discovered evidence

despite his guilty plea, determined that the defendant’s evidence was newly discovered, and

remanded to the circuit court to consider whether the new evidence presented was material,

noncumulative, and clearly and convincingly demonstrated that a trial would probably result in

acquittal. Patel, 2021 IL App (3d) 170337, ¶¶ 18-22. In Rocha, this court found that the

defendant’s section 2-1401 petition was untimely and, even if it were not, the defendant’s actual

innocence claim, properly raised notwithstanding his guilty plea based on Reed, was without merit

because the supporting evidence was not newly discovered. Rocha, 2021 IL App (1st) 191714-U,

¶¶ 30-31, 43-44.

¶ 54 In both cases, the court applied the Reed standard, concluding that the defendant must

provide “ ‘new, material, noncumulative evidence that clearly and convincingly demonstrates that

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a trial would probably result in acquittal.’ ” Patel, 2021 IL App (3d) 170337, ¶ 19 (quoting Reed,

2020 IL 124940, ¶ 49); Rocha, 2021 IL App (1st) 191714-U, ¶ 42 (quoting Reed, 2020 IL 124940,

¶ 49). However, because both cases arose in the context of section 2-1401 petitions, which do not

have multiple stages of proceedings, neither case addressed that Reed involved a third stage

postconviction petition or analyzed whether there should be a different standard for successive

postconviction petitions at the leave-to-file stage. As such, we find neither case to be instructive

or to have any bearing on our conclusion.

¶ 55 Accordingly, we summarize the appropriate standard to be applied in the case before us as

follows. The appropriate elements for actual innocence claims are that the evidence be (1) newly

discovered, (2) material, (3) noncumulative, and (4) of such conclusive character that it would

probably change the result on retrial. Robinson, 2020 IL 123849, ¶ 47. Again, petitions at the leave-

to-file stage should only be denied if they have not set forth a colorable claim of actual innocence,

meaning that “the petitioner’s supporting documentation raises the probability that it is more likely

than not that no reasonable juror would have convicted the petitioner in light of the new evidence.”

Id. ¶ 44 (citing Sanders, 2016 IL 118123, ¶ 24, citing People v. Edwards, 2012 IL 111711, ¶ 24).

Further, we must take all well-pled allegations that are not affirmatively rebutted by the record as

true, and we cannot make credibility determinations at this stage. Id. ¶ 45. Lastly, in accordance

with Reed, we make no determination regarding the reliability of defendant’s evidence, which can

only be determined should the petition advance to the third stage under the Act, where an

evidentiary hearing is held. See Reed, 2020 IL 124940, ¶ 50 n.2.

¶ 56 4. Defendant’s Petition

¶ 57 Having determined the appropriate standard, we now turn to the merits of defendant’s

actual innocence claim. Here, defendant supported his claim with affidavits from Moore and

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Myles. Moore’s affidavit provided his witness account of the shooting, stating that he observed

Butler walking toward a group of individuals with a gun, heard several gunshots, and then saw

Butler run away with a gun. Myles’s affidavit provided an account of a conversation he had with

McWilliams, who stated that he, Barnes, and Harmon falsely identified defendant as the shooter

to avoid police interference with their drug business and that he knew Houston owed Butler money.

McWilliams also described the shooter as light-skinned with braids, which is not an accurate

description of defendant, who is dark-skinned with dreadlocks.

¶ 58 The State concedes, and we agree, that the affidavits constitute new, material, and

noncumulative evidence. Although we are not applying the higher third stage evidentiary standard

set forth in Reed, we do believe that its statement as to what constitutes “new” evidence in the

context of a guilty plea is nonetheless relevant where a trial has not occurred. The Reed court

clarified that “new” evidence means that the “evidence was discovered after the court accepted the

plea and could not have been discovered earlier through the exercise of due diligence.” Id. ¶ 49.

Defendant could not have discovered the information contained in either Moore’s or Myles’s

affidavits earlier through due diligence. He did not come into contact with either individual until

after he was sentenced and entered prison. Next, the evidence is clearly material where it goes to

the identity of the shooter, suggests that the State’s witnesses falsely identified defendant as the

shooter, and includes a motive for the witnesses in lying about their identification of defendant as

the shooter. Finally, the evidence is noncumulative where the State’s factual basis did not contain

any witness who identified an individual other than defendant as the shooter.

¶ 59 For the final element for actual innocence claims, we must determine whether the

supporting documentation is of such conclusive character that a trial would probably result in

acquittal. The conclusiveness element is the most important for an actual innocence claim.

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Robinson, 2020 IL 123849, ¶ 47. Conclusive evidence “refers to evidence that, when considered

along with the trial evidence, would probably lead to a different result.” Id. “The new evidence

need not be entirely dispositive to be likely” to result in acquittal. Id. ¶ 48. Significantly, here, we

do not have trial evidence before us; instead, we have the State’s factual basis for the plea, which

“is held to a less stringent level of proof” than at trial.” Reed, 2020 IL 124940, ¶ 34.

¶ 60 Defendant’s newly discovered evidence identified Butler as the actual shooter based on

Moore’s alleged eyewitness account. Moore averred that he “witnessed the murder of [Williams]

and the shooting of [Houston].” In particular, he identified Butler in the vicinity before and after

the shooting with a gun, and he heard gunshots. The State contends that Moore’s affidavit does

not contain specific factual assertions that he actually saw the shootings. Whether Moore actually

saw Butler shoot the victims or merely saw Butler before and after the shooting can be parsed out

at an evidentiary hearing, should this claim proceed to that stage. Additionally, Moore’s account

is bolstered by Myles’s conversation with McWilliams that provided a potential motive, i.e.,

money, for Butler shooting Houston and that described the actual shooter as light-skinned with

braids, as opposed to dark-skinned with dreadlocks, as is defendant.

¶ 61 Additionally, the information in Myles’s affidavit undermines the veracity of Harmon’s

and Barnes’s grand jury testimony and Harmon’s statement to the police, where, according to

Myles, McWilliams admitted to making false accounts to the police regarding defendant being the

shooter in order to protect their drug business. 4 We recognize that none of the new evidence

directly compromises Houston’s or Battle’s identification of defendant or defendant’s alleged

4 Notably, the Illinois Rules of Evidence do not apply to postconviction proceedings. Ill. R. Evid. 1101(b)(3) (eff. Sept. 17, 2019); People v. Shaw, 2019 IL App (1st) 152994, ¶ 67. Thus, the contents of Myles’s affidavit are not barred by the hearsay rule.

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confession to Winters via telephone. However, the allegation that Houston owed Butler money

could have an effect on Houston’s credibility as a witness, if it is determined that he refrained from

identifying Butler as the shooter. Additionally, we cannot afford Houston’s testimony any greater

weight than the other witnesses at this stage. “Without engaging in any credibility determinations,

there is no way for this court—or any court—to assess the reliability of those affidavits or the

veracity of their assertions.” Robinson, 2020 IL 123849, ¶ 83. Ultimately, the State’s factual basis

undergirding the court’s acceptance of defendant’s guilty plea is directly contradicted by the

information in the affidavits, and the affidavits provide evidence that defendant was not the shooter

and was actually innocent of the crimes.

¶ 62 Significantly, none of this newly discovered evidence can be said to be positively rebutted

by the record. As the supreme court stated in Robinson, new evidence is only rebutted where it is

“clear from the trial record that no fact finder could ever accept the truth of that evidence, such as

where it is affirmatively and incontestably demonstrated to be false or impossible.” Id. ¶ 60. The

State, for the plea’s factual basis, did not present any surveillance footage or any other video

evidence of the shooting. Likewise, there is no suggestion of any forensic evidence, such as

fingerprints, DNA, or ballistics, to connect defendant to the shooting. The totality of the factual

basis relied on witness statements and grand jury testimony. 5 As such, the conflicting new evidence

cannot be “affirmatively and incontestably demonstrated to be false or impossible.” Id.

¶ 63 Additionally, we note that, although the record contains an incriminating statement to the

police from defendant, this was not introduced as part of the factual basis. However, in determining

whether there is sufficient factual basis for a defendant’s plea, the trial court may consider the

5 Again, we note that the grand jury transcripts were not included in the record on appeal.

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entirety of the record. See People v. Banks, 213 Ill. App. 3d 205, 211 (1991) (the trial court may

look anywhere in the record to find a sufficient factual basis for the plea); People v. Allen, 323 Ill.

App. 3d 312, 317 (2001) (same). Because defendant’s inculpatory statement is part of the record,

we deem it appropriate to at least consider it here. See Arizona v. Fulminante, 499 U.S. 279, 296

(1991) (a confession may be the “ ‘most probative and damaging evidence that can be admitted’ ”

against a defendant (quoting Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J.,

dissenting))).

¶ 64 In his December 2009 statement to police, defendant admitted that he fired multiple shots

at Williams and Houston and, specifically, that he was trying to send Williams a message after she

had previously stabbed him. We acknowledge that defendant’s confessed motive for shooting at

Williams is corroborated by Harmon’s statement that defendant told him prior to the shooting that

she had stabbed him in the past. However, we also note that defendant has maintained in both of

his postconviction petitions that his confession to the police was involuntary and was coerced.

Admittedly, defendant’s incriminating statement to Winters, which was included in the State’s

factual basis, coupled with his confession to the police, weighs toward his guilt. However, the

Robinson court has specifically rejected the requirement that the newly discovered evidence

demonstrate “total vindication” or “exoneration” of the defendant, and again, we cannot weigh the

evidence at this stage. Robinson, 2020 IL 123849, ¶¶ 55-56. Moreover, it remains true that there

is no forensic evidence tying defendant to the crime, two of the four eyewitness accounts are

directly impeached with the newly discovered evidence, and defendant has maintained that his

confession to the police was involuntary. On this record, we find that the information in the

affidavits places the inculpatory evidence in the record and in the factual basis in a different light

and undermines this court’s confidence in the judgment of guilt. See id. ¶ 56.

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¶ 65 Defendant’s newly discovered evidence directly contradicts the State’s evidence in

multiple ways, raises questions regarding the veracity of the State’s witnesses, and creates a

credibility contest that can only be resolved after further proceedings before a factfinder, which

this court is not. At this stage, taking as true the well-pled allegations in the affidavits, the

exculpatory nature of the evidence alongside the impeachment evidence “raises the probability

that it is more likely than not that no reasonable juror would have convicted the petitioner in light

of the new evidence.” Id. ¶ 44 (citing Sanders, 2016 IL 118123, ¶ 24, citing Edwards, 2012 IL

111711, ¶ 24). Accordingly, we find that defendant has set forth a colorable claim of actual

innocence based on the affidavits of Moore and Myles and the trial court incorrectly denied

defendant’s request for leave to file his successive postconviction petition.

¶ 66 Because we have determined that defendant has presented a colorable claim of actual

innocence, we must remand the petition in its entirety and therefore need not review his ineffective

assistance of counsel claim. See People v. Cathey, 2012 IL 111746, ¶ 34 (stating that, because

partial summary dismissals are not permitted under the Act, the entire petition must be remanded

for further proceedings where one claim has merit). Finally, nothing in this order should be

construed as suggesting that any of the claims in defendant’s petition would pass second stage

muster.

¶ 67 III. CONCLUSION

¶ 68 For the reasons stated, we reverse the judgment of the circuit court and remand for further

¶ 69 Reversed and remanded.

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No. 1-19-1101-B

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR- 1910; the Hon. Michael B. McHale, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Rachel M. Kindstrand, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Brian K. Hodes, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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