People v. Okoro

2025 IL App (1st) 231933-U

• Court: Appellate Court of Illinois
• Decided: March 7, 2025
• Docket: 1-23-1933
• Status: Unpublished

Opinion

2025 IL App (1st) 231933-U No. 1-23-1933 Order filed March 7, 2025 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 19 CR 0970301 ) IFEANYI OKORO, ) Honorable ) Charles Burns, Defendant-Appellant. ) Judge, Presiding. )

JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Navarro concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in summarily dismissing defendant’s postconviction petition at the first stage of proceedings where his claims were barred by the doctrine of res judicata and waiver, and neither trial, posttrial, or appellate counsel were ineffective.

¶2 Defendant Ifeanyi Okoro appeals from the trial court’s summary dismissal of his

postconviction petition that was filed by counsel. He argues that (1) his constructive amendment

claim was not barred by the doctrine of res judicata, and (2) his trial, posttrial, and appellate No. 1-23-1933

counsel were ineffective for failing to properly raise meritorious issues in the trial court and on

appeal. We affirm.

¶3 BACKGROUND

¶4 We have previously detailed the underlying facts of this case in our opinion that disposed

of defendant’s direct appeal. People v. Okoro, 2022 IL App (1st) 201254. As such, we will only

discuss those facts that are necessary and relevant to the resolution of this appeal.

¶5 Following a jury trial, defendant was found guilty of home invasion, attempted criminal

sexual assault, robbery, and unlawful restraint. On October 16, 2019, posttrial counsel filed a

motion for new trial, contending that the State failed to prove defendant guilty beyond a reasonable

doubt, the trial court erred in denying defendant’s motion for a directed verdict on all counts, and

the State failed to prove every material allegation of the information beyond a reasonable doubt.

In an amended posttrial motion filed on December 12, 2019, defendant additionally contended that

the trial court erred by ordering the exclusion of evidence regarding the victim’s prior sexual

assault allegations, and the State failed to note sufficient facts in the record for the jury to find

defendant guilty beyond a reasonable doubt on any of the charges. On February 14, 2020, posttrial

counsel filed a second amended motion for new trial which claimed that the rape shield statute did

not preclude the introduction and cross-examination of a rape victim regarding prior accusations

of rape. Defendant’s motion for new trial was denied and he was sentenced to concurrent sentences

of 11 years for home invasion, seven years for robbery and seven years for attempted criminal

sexual assault.

¶6 On October 29, 2020, defendant filed his direct appeal, contending that (1) his rights under

the grand jury clause of the fifth amendment were violated because the evidence at trial and the

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jury instructions constructively amended the indictment and (2) he was denied his constitutional

right to cross-examine the complainant and present his theory of defense. Id. ¶ 1. We affirmed in

an opinion filed on March 31, 2022, finding that there was no fatal variance between the

indictment, evidence presented at trial, and the jury instructions as the indictment apprised him of

the offense of home invasion as found in the statute, thereby failing to satisfy any part of the test

for determining variance. Id. ¶ 41. We also concluded that the trial court did not abuse its discretion

in refusing to allow cross-examination of the complainant based on her excited utterance that she

was previously raped, and that the statement was barred by the rape shield statute. Id. ¶ 60. We

specifically found defendant’s theory that a prior rape would make complainant hypersensitive to

be pure conjecture and therefore irrelevant to the issue of whether defendant committed the offense

of attempted criminal sexual assault; moreover, defendant did not make an offer of proof in the

trial court regarding the relevance of the evidence, thus he was unable to prove its relevance

without supporting evidence validating his theory. Id.

¶7 Defendant subsequently filed a postconviction petition on June 26 and 30, 2023, requesting

that his conviction be vacated and a new trial granted because (1) his due process rights were

violated when his indictment was constructively amended; (2) his right to confrontation was

violated by being unable to cross-examine his accuser with her claim that she had been raped

before; (3) trial counsel provided ineffective assistance of counsel for promising testimony that

could only come from defendant, but then advised defendant not to testify; (4) trial, posttrial, and

appellate counsel were ineffective for failing to properly raise his due process claim; (5) trial,

posttrial, and appellate counsel were ineffective for failing to properly raise his Sixth Amendment

claim; (6) appellate counsel was ineffective for failing to raise the claim that trial and posttrial

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counsel were ineffective; and (7) he was prejudiced by the cumulative claims of ineffectiveness.

Defendant also raised a claim concerning correction of the mittimus.

¶8 In a written order on September 21, 2023, the trial court denied defendant’s postconviction

petition. The trial court concluded that defendant’s constructive amendment claim failed because

the appellate court already found there was no fatal variance between the indictment, evidence

presented at trial, and jury instructions. The appellate court found that the indictment apprised him

of the offense of home invasion consistent with the statute which details three ways in which a

person can commit home invasion, thus any variance between the indictment and the evidence at

trial was not fatal.. Because this court had already determined that there was no fatal variance or

constructive amendment, the trial court declined to diverge from this court’s findings and

concluded that the claim was frivolous and patently without merit. Regarding defendant’s sixth

amendment claim that he was prevented from cross-examining the victim about an alleged prior

rape and that the victim was “hypersensitive” due to her prior sexual assault, the trial court found

that this court addressed this issue on defendant’s direct appeal and rejected it. The trial court

declined to diverge from this court’s findings and concluded that defendant’s claim was frivolous

and patently without merit. With respect to defendant’s claims that trial counsel was ineffective

for failing to (1) raise the due process violation regarding the constructive amendment to the

indictment or, in the alternative, an improper variance between the indictment and proof at trial;

(2) raise the confrontation clause violation where defendant was unable to cross-examine the

victim on an alleged prior rape and properly put on a defense at trial; and (3) for promising the

jury during opening statements defendant would testify then advising defendant not to testify.

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¶9 The trial court found the first two claims were patently without merit as they were

considered on appeal. Regarding trial counsel’s promise during opening statements that defendant

would testify, the trial court noted that trial counsel did not make specific references to the jury

hearing from defendant himself; instead, he merely alerted the jury to what he believed the

evidence would show including how there was no threat of physical harm toward her and she was

never seen running on the surveillance video. The court found that such supposed evidence could

have either been elicited on cross-examination of witnesses or through the surveillance video itself

and did not necessarily have to come from defendant. The court also noted that trial counsel made

no specific promise that defendant would testify. The trial court concluded that defendant’s claims

that trial counsel was ineffective were frivolous and patently without merit. With respect to

defendant’s claim of posttrial counsel’s ineffectiveness for failing to raise the above-referenced

issues, the trial court found that it could not be said that posttrial counsel was objectively

unreasonable or that this court would have reversed defendant’s conviction based on the alleged

errors. With respect to defendant’s claims that appellate counsel was ineffective for failing to raise

those same issues, the trial court found that two of those issues were already addressed and rejected

by this court and one was already deemed frivolous and patently without merit in reviewing the

postconviction petition. As such, the trial court concluded that defendant’s claim that appellate

counsel was ineffective was frivolous and patently without merit. Finally, the trial court corrected

the mittimus.

¶ 10 Defendant filed his timely notice of appeal on October 16, 2023.

¶ 11 ANALYSIS

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¶ 12 On appeal, defendant contends that his postconviction petition should not have been

dismissed because (1) his constructive amendment claim was not barred by the doctrine of res

judicata, and his trial, posttrial and appellate counsel were ineffective for failing to properly raise

meritorious issues in the trial court and on appeal.

¶ 13 The Post-Conviction Hearing Act (Act) provides a means for individuals serving criminal

sentences to assert that their convictions resulted from a substantial denial of their constitutional

rights. 725 ILCS 5/122-1 et seq. (West 2022); People v. Williams, 2024 IL 127304, ¶ 14.

Postconviction proceedings are commenced by the filing of a petition, which must, among other

things, “clearly set forth the respects in which the petitioner’s constitutional rights were violated.”

725 ILCS 5/122-2 (West 2022).

¶ 14 The Act sets forth a three-stage process for adjudicating petitions. Williams, 2024 IL

127307, ¶ 15. Defendant’s petition, which was drafted by counsel, was summarily dismissed in a

written order at the first stage, which sets a low threshold and requires only a limited amount of

detail in the petition as most petitions are usually drafted at this stage by pro se defendants. Id. For

that reason, a pro se defendant must only state the “gist” of a constitutional claim by alleging

enough facts to make out a claim that is arguably constitutional for purposes of invoking the Act.

Id. The “gist” of a constitutional claim means the petition meets the pleading requirements of

section 122-2, even if the petition lacks formal legal arguments or citations of legal authority. Id.

¶ 15 Once a defendant files a petition for postconviction relief, the trial court may, during this

first stage of proceedings, enter a dismissal order within 90 days if it finds the petition is frivolous

or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2022). If the trial court does not dismiss

the petition at the first stage, it advances to the second stage, where counsel may be appointed to

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an indigent defendant, and where the State shall file a motion to dismiss or an answer to the

petition. 725 ILCS 5/122-2.1(b), 122-4 (West 2022). To advance from the second stage to the third

stage of proceedings, the amended petition must make a substantial showing of a constitutional

violation. People v. House, 2020 IL App (3d) 170655, ¶ 28.

¶ 16 Here, the trial court dismissed defendant’s postconviction petition at the first stage, albeit

in a written order with explanation rather than summarily. Upon review of the court’s first-stage

dismissal, we examine whether the defendant’s petition sets forth the gist of a constitutional claim.

People v. Palmer, 2017 IL App (4th) 150020, ¶ 16. A claim completely contradicted by the record

is an example of an indisputably meritless legal theory appropriately dismissed at the first stage of

postconviction proceedings. Id. Our review is de novo.

¶ 17 A. Constructive Amendment of the Indictment

¶ 18 We first examine defendant’s first argument that his constructive amendment claim was

not barred by res judicata. The purpose of a postconviction petition is to allow inquiry into

constitutional issues relating to the conviction or sentence that were not, and could not have been,

determined on direct appeal. People v. Johnson, 352 Ill. App. 3d 442, 447 (2004). Thus, res

judicata bars consideration of issues that were raised and decided on direct appeal, and issues that

could have been presented on direct appeal, but were not, are considered waived. Id.

¶ 19 A review of our disposition on defendant’s direct appeal, as noted above, reveals that

defendant claimed that his rights under the fifth amendment were violated because the evidence at

trial and the jury instructions constructively amended the indictment. In his postconviction

petition, defendant claimed that his due process rights under the fourteenth amendment were

violated when his indictment was constructively amended. Both claims were based on facts

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ascertainable from the record, and defendant could have easily raised a fourteenth amendment

claim along with his prior fifth amendment claim as they are born out of the same facts. Thus, his

claim is waived as it could have been raised on direct appeal and was not.

¶ 20 Moreover, in defendant’s direct appeal, we found that there was no fatal variance between

the indictment, evidence presented at trial, and the jury instructions as the indictment apprised him

of the offense of home invasion as found in the statute, and that defendant failed to satisfy any part

of the test concerning the sufficiency of the home invasion indictment. Okoro, 2022 IL App (1st)

201254, ¶ 41. We specifically rejected defendant’s claim that there was a constructive amendment

of the indictment. Id. ¶ 45. Defendant’s allegations in his postconviction petition suggest a slight

variation to a previously raised claim in order to avoid the bars of waiver and res judicata.

Previously litigated issues cannot be reopened through the subsequent addition of more allegations.

People v. Sims, 192 Ill. 2d 348, 360 (2000). We have previously addressed defendant’s claims

concerning a constructive amendment of the indictment based on a variance between the

indictment, the evidence presented at trial and the jury instructions. Accordingly, we find that this

issue is also barred by res judicata.

¶ 21 We therefore conclude that consideration of defendant’s claim that there was a constructive

amendment of the indictment, under any constitutional amendment, was barred by both waiver

and res judicata and therefore was properly dismissed by the trial court as frivolous and patently

without merit.

¶ 22 B. Ineffective Assistance of Counsel

¶ 23 Defendant next argues that his trial, posttrial, and appellate counsel were ineffective for

failing to raise and preserve various meritorious issues in the trial court and on appeal, and that the

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trial court erred in summarily dismissing his claims. A claim of ineffective assistance of counsel

is evaluated under the test established in Strickland v. Washington, 466 U.S. 668 (1984). In order

to survive summary dismissal at the first stage of postconviction proceedings, the defendant must

show that his counsel’s performance fell below an objective standard of reasonableness, and that

but for counsel’s deficient performance, there is a reasonable probability that outcome of the

proceedings would have been different. Id. at 687. A defendant must satisfy both prongs of the

Strickland test or the claim must fail. Id. at 697.

¶ 24 Defendant’s claims of ineffective assistance involve (1) trial counsel’s failure to allow him

to testify after promising the jury that it would hear defendant’s side of the story in the defense’s

opening statement; (2) counsels’ collective failure to raise his fourteenth amendment challenge to

the constructive amendment of the indictment; (3) counsels' collective failure to properly raise the

claim that defendant’s right to confrontation and right to preserve a defense were violated; and (4)

appellate counsel’s failure to raise the issue of trial and posttrial counsel’s ineffectiveness.

¶ 25 Here, we have already found that defendant’s claim regarding the constructive amendment

of the indictment is barred (claim number 2) by both waiver and res judicata. It follows then that

neither trial, posttrial, nor appellate counsel were ineffective for failing to raise this meritless

argument as it would not have changed the result of defendant’s conviction or appeal. Therefore,

defendant cannot establish the second Strickland prong. We therefore reject defendant’s claims

that any of his prior attorneys were ineffective for failing to raise a fourteenth amendment due

process claim regarding the constructive amendment of the indictment.

¶ 26 A similar conclusion is reached regarding defendant’s claim that the trial court erred in

dismissing his postconviction claim that his sixth amendment right to confrontation and right to

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preserve a defense (claim 3) were violated for several reasons. First, we find that posttrial counsel

and appellate counsel cannot be considered ineffective for failing to raise this issue because it was

raised on direct appeal by appellate counsel, thus it is barred by res judicata, and further, we

addressed the merits of this issue on defendant’s direct appeal despite defendant’s forfeiture of the

issue by failing to raise it in his posttrial motion, thus defendant cannot show prejudice by posttrial

counsel’s failure to raise the issue in the motion.

¶ 27 We also find that trial counsel was not ineffective for how this issue was handled in the

trial court. On direct appeal, we addressed the issue under an exception to the forfeiture rule.

Okoro, 2022 IL App (1st) 201254, ¶ 55. Defendant argued that he was denied his constitutional

rights to cross-examine complainant and present his theory of defense because the trial court

invoked the rape shield statute to bar questioning of complainant concerning an alleged prior rape

that defendant argued made her “hypersensitive.” We note that defendant raised the exact issue in

his postconviction petition and again in this appeal.

¶ 28 On direct appeal, we rejected defendant’s general theory that a prior rape would make

complainant hypersensitive as pure conjecture and therefore irrelevant to the issue of whether this

defendant committed the offense of attempted criminal sexual assault. Okoro, 2022 IL App (1st)

201254, ¶ 60. We further noted that defendant failed to make an offer of proof with specific and

detailed information about why and how such information was relevant as was required by statute.

Id. at ¶ 59. We further noted, citing People v. Sandifer, 2016 IL App (1st) 13397, ¶ 23, that the

victim’s sexual history is not constitutionally required to be admitted unless it would make a

meaningful contribution to the fact-finding process. Id., ¶ 55.

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¶ 29 While defendant could arguably make a claim that trial counsel was ineffective for failing

to make such an offer of proof, he has not made such an argument, and even if he had done so, it

would fail.

¶ 30 A review of defendant’s arguments establishes that they are merely an attempt to relitigate

this issue in his postconviction proceedings, without providing any additional facts or evidentiary

support for his constitutional claims. Specifically, defendant has not provided any additional or

specific evidence in either his petition or affidavit regarding the relevancy of this information that

could have defeated the rape shield statute’s bar of such information under the “constitutionally

required” exception. Rather, he only restates the same arguments made in the trial court and on

direct appeal, namely that his defense was compromised by invocation of the rape shield statute to

block portions of his cross-examination of the complainant, to now support his ineffectiveness

claims. Defendant’s attempt to relitigate the issue raised on his direct appeal framed as an

ineffective assistance argument does not state the gist of a constitutional claim.

¶ 31 Nor can defendant successfully argue that trial counsel’s behavior was objectively

unreasonable in how he argued the issue before the trial court. As we noted on direct appeal, trial

counsel made general, speculative statements about why and how complainant’s statement to

police regarding a prior rape would be relevant to defendant’s case, including her hypersensitivity

to being alone with a man. Okoro, 2022 IL App (1st) 201254, ¶ 59. Defendant repeated those same

general and speculative statements in his postconviction petition and in this appeal. We can infer

that no additional specific and detailed facts were available to trial counsel to meet the exception,

which is why they were not presented in an offer of proof, nor are any available to defendant or

postconviction counsel as they were not presented in the petition or by affidavit. It follows then

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that trial counsel could not be ineffective for failing to present nonexistent evidence to support this

claim, and the trial court properly dismissed this argument as frivolous and patently without merit.

¶ 32 Defendant’s remaining claim of ineffective assistance is based on trial counsel’s failure to

allow him to testify after promising the jury that it would hear defendant’s side of the story, during

the defense’s opening statement (claim number 1). We find that such claim misrepresents and is

directly refuted by the trial record. The trial court must accept as true all well-pleaded allegations

in the postconviction petition unless the allegations are positively refuted by the record. See

Palmer, 2017 IL App (4th) 150020, ¶ 21.

¶ 33 A review of the defense’s opening statement reveals, as noted by the trial court and in

defendant’s postconviction petition, that trial counsel stated as follows:

“* * * When Mr. Okoro came out of the restroom, I believe the evidence will show

approximately two minutes later, things had changed. That dynamic that he thought he had

communicating with Miss B[.] wasn’t there anymore. She became loud towards him. She

yelled at him. She cussed at him, called him names and became belligerent. He was

completely thrown off as to why.

“There will be evidence and testimony that he didn’t believe she was intoxicated. Neither

was he because neither one of them were consuming alcohol together. He didn’t understand

what was going on and attempted to talk to her. There was no overt action or threat of

physical harm or actual physical harm once he was out of the bathroom.

I submit the evidence will show that there was absolutely no attempts of physical harm by

Mr. Okoro to Miss B[.] whatsoever. None.

***

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You will see absolutely no evidence of her running anywhere within the condominium

building at all. None. * * *

You will hear evidence that my client never walked back into the condominium unit again

after she walked out.”

¶ 34 Contrary to defendant’s arguments, counsel did not “very clearly promise the jury that it

would hear testimony that could only come from [defendant].” Counsel stated that the evidence

would show certain things, and that the evidence included video surveillance footage.

¶ 35 Further, the record shows that prior to discussions about jury instructions, the trial court

inquired whether defendant would be testifying. He first asked trial counsel whether defendant

would testify and counsel replied that he was not going to testify. The trial court then admonished

defendant that it was his decision whether or not to testify and defendant replied that he understood.

The trial court then stated it was not a decision made by his attorney and indicated that it would

ask him some questions later but reiterated that defendant had a right to testify. Defendant stated

that he understood.

¶ 36 Additionally, prior to closing arguments and outside the presence of the jury, the trial court

conducted voir dire of defendant concerning trial counsel’s decision not to call any witnesses,

whether he talked with trial counsel about whether or not he wanted any witnesses called.

Defendant responded that he spoke with trial counsel about it and agreed with the decision not to

call any witnesses. The trial court then admonished defendant again that he had the right to testify

and that it was his sole decision and defendant replied that he understood. The trial court also told

defendant that by resting the defense at that time, he would not be testifying in the case and

defendant replied that he understood. The trial court then asked defendant whether he understood

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that he could testify and that no one could prohibit him from testifying and defendant responded

that he did. The trial court asked defendant directly whether he wanted to testify, and defendant

stated that he did not. The trial court then asked defendant whether he made that decision after

talking to his attorney in this matter and if he discussed his decision of whether or not to testify,

and defendant replied yes to both questions. The trial court then asked defendant whether he

understood that his attorney could not prevent him from testifying; if the attorney said no and

defendant said yes, the court stated that defendant would be allowed to testify. Defendant replied

that he understood. The court asked him again whether he wanted to testify or not and defendant

stated that he did not. The trial court then stated that “[d]efendant’s been voir dired with regard to

the right to call witnesses and right to call - - and his right to testify in this matter, okay?”

¶ 37 Accordingly, because defendant’s allegation that trial counsel provided ineffective

assistance of counsel by refusing defendant his right to testify is positively refuted by the record,

we conclude that the trial court properly dismissed this issue as frivolous and patently without

merit. It follows then that defendant’s claims that posttrial and appellate counsel were ineffective

for failing to raise this issue are also without merit.

¶ 38 We conclude that all the claims raised in defendant’s postconviction petition are frivolous

and patently without merit and were properly dismissed at the first stage of postconviction

proceedings.

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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