People v. Rouse

2022 IL App (1st) 210761, 224 N.E.3d 862

• Court: Appellate Court of Illinois
• Decided: December 5, 2022
• Docket: 1-21-0761
• Status: Published

Opinion

2022 IL App (1st) 210761 No. 1-21-0761 Opinion filed December 5, 2022

First Division

___________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ___________________________________________________________________________ ) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) No. 10 CR 21758 v. ) ) The Honorable DARRON ROUSE, ) Nicholas Ford, ) Judge, presiding. Defendant-Appellant. )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion. Presiding Justice Lavin dissented, with opinion.

OPINION

¶1 After a bench trial, the court found Darron Rouse guilty of one count of armed robbery.

We affirmed a direct appeal challenge to Rouse’s sentence, after which Rouse filed a

postconviction petition. Three claims are relevant here, all involving ineffective assistance of trial

counsel (i) for interfering with his right to a jury trial, (ii) for failing to prepare for and present

Rouse’s testimony, and (iii) for failing to call Rouse’s sister to testify. The trial court dismissed

Rouse’s petition at the second stage of postconviction proceedings. No. 1-21-0761

¶2 Critical to our review, the State failed to challenge Rouse’s counsel’s alleged errors on the

merits for the first two claims. Instead, the State argues (i) the record rebuts that Rouse’s counsel’s

actions denied him the right to a jury trial and (ii) Rouse inadequately pled his claim that counsel

ineffectively prevented him from testifying. We reject these arguments because (i) the trial court’s

admonishments about Rouse’s right to a jury trial were incomplete and so do not rebut his claim

and (ii) Rouse’s petition adequately alleges that by failing to prepare him, his counsel prevented

him from testifying. And given that Rouse’s sister’s proposed testimony is largely corroborative

of his testimony (which the State does not challenge on the merits), we find Rouse has made a

substantial showing of a reasonable probability the outcome of his trial would have been different

had counsel performed adequately.

¶3 We reverse and remand for an evidentiary hearing consistent with the Post-Conviction

Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)).

¶4 Background

¶5 The trial court found Rouse guilty of one count of armed robbery after a bench trial.

Immediately before trial, the trial court admonished Rouse about giving up his right to a jury trial.

Rouse agreed that he understood that, by going forward with a bench trial, the judge would decide

his guilt or innocence. He also understood his right “12 of [his] peers who decide [his] guilt or

innocence” with “any decision they would make *** be[ing] unanimous meaning they would all

have to agree.” Rouse denied receiving threats or promises in exchange for choosing a bench trial

and affirmed he was choosing a bench trial “of [his] own free will.” The trial court found Rouse’s

jury waiver valid, and after arguments on counsel’s oral motion to suppress a show-up

identification of Rouse (which the trial court denied), the parties proceeded to trial.

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¶6 Khuiin Hangora and Salman Ali offered substantially similar testimony about the incident.

The two were getting food at a Maxwell Street Polish stand. Ali had explained to Hangora that he

was looking to buy a car for his wife. While the two were waiting in line, Rouse approached them

and told them about an SUV he had for sale. After Ali asked a few questions about the condition

of the SUV, the three men got out of line and went to see it. They got into Hangora’s car—a

BMW—with Hangora driving, Ali in the front passenger seat, and Rouse in the back seat. Rouse

gave Hangora directions and after about five minutes, they stopped across from a parking lot where

Rouse pointed to a car that matched the description.

When Hangora stopped, Rouse pulled out a revolver and said, “put your head down. Put your

hand[s] on the lap.” Rouse then demanded everything Hangora and Ali had, including their cell

phones, as he pointed the revolver back and forth between them. Hangora gave Rouse his cell

phone (a Blackberry), his keys, and between $1200 and $1300. Ali gave Rouse his cell phone and

$1500 to $1700 in cash. Rouse told Hangora and Ali not to look back and to count to 100. He then

got out on the passenger side. Hangora watched as Rouse went north and then west, before moving

out of sight. Ali explained that he watched Rouse leave in the side mirror and saw him “ma[k]e a

left towards the fire station,” before losing sight of him.

¶7 Ali then called 911 with a second phone Hangora kept in his pocket. The police arrived,

and Hangora and Ali gave them a description. A “short time later” officers returned with a suspect

in a police wagon. Ali and Hangora went over and saw Rouse in the back. Officers then took

Hangora and Ali to the police station where they identified their phones, cash in similar

denominations as the money they had earlier, and a gun officers recovered as the revolver Rouse

pointed at them.

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¶8 Earlier, Chicago police officers Stanley and Wenta were on patrol. They responded to a

robbery call and got a description of the offender from Hangora and Ali. After broadcasting the

description, the officers received a radio communication that an officer on another beat had seen

someone matching it. As they drove to the location, they saw Rouse coming towards them being

pursued by Sergeant Villalobos, another officer. Wenta noticed Rouse “making a tugging motion

to his waistband,” and Stanley got out of his car to follow Rouse on foot.

¶9 Rouse went into an alley and, when Rouse’s path became blocked, Stanley saw Rouse grab

“what [Stanley] observed to be a handgun and attempt[ ] to throw it onto a rooftop.” The gun did

not make it onto the roof, instead hitting the wall of an adjacent building and falling back into the

alley. Stanley “immediately” went to retrieve the gun while Wenta and Villalobos continued to

chase Rouse (at trial, Stanley identified the revolver he recovered as the one he saw Rouse throw).

When Stanley caught up to them, Rouse had been arrested.

¶ 10 Wenta searched Rouse’s pockets and found a cell phone and money, specifically a

Blackberry and $2995. Wenta admitted on cross-examination that there was nothing unique about

the money and it was all in cash. Stanley then called for a fire engine with a ladder to investigate

the roof where Rouse had attempted to throw the gun. An officer scaled the ladder and found

another cell phone on the roof. Stanley admitted, however, that he did not see Rouse throw a cell

phone toward the roof.

¶ 11 As part of the defense case, the parties stipulated that an expert in fingerprint evidence

would testify that one latent print suitable for comparison on the revolver did not match Rouse. He

also would testify that no fingerprints suitable for comparison were found on the recovered

ammunition. The parties further stipulated to testimony from an employee at Chicago’s Office of

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Emergency Management and Communications, who would verify the description of the offender

broadcast over the radio.

¶ 12 When it came to Rouse’s testimony, the court had this colloquy:

“THE COURT: Darron, you have the absolute right to testify or not testify.

It’s kind of something you decide yourself. You can consult with your attorney

about it; but in the end, it’s up to you. Do you understand that?

ROUSE: Yes, sir.

THE COURT: Have you talked with [your counsel] about whether or not

you wanted to testify or didn’t want to testify?

THE COURT: And which path do you want? Do you want to testify or not

testify?

ROUSE: I would like to testify.”

At that point, Rouse’s counsel asked for a moment and had a discussion off the record. When the

proceedings returned to the record, the colloquy continued:

“THE COURT: So do you want to testify or not, Darron?

ROUSE: Sir, no, sir.

THE COURT: You talked with [your counsel] about this. Did anyone

threaten you or promise you anything to make you choose not to testify?

ROUSE: No.

THE COURT: Are you choosing not to testify of your own free will?

ROUSE: Yes, sir . THE COURT: And this is after talking it over with your attorney?

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ROUSE: Yes, it is.

THE COURT: Previously you said you wanted to testify. Do you want to

testify or you don’t want to testify?

ROUSE: I don’t. She explained something to me.”

After the court determined Rouse’s waiver of his right to testify “knowing, intelligent, and

voluntary,” The defense rested without further witnesses.

¶ 13 The trial court found Rouse guilty of armed robbery and concluded he used a firearm. The

court sentenced Rouse to 9 years’ imprisonment for the underlying robbery with a mandatory 15-

year enhancement for using a firearm, bringing Rouse’s total sentence to 24 years. On direct

appeal, Rouse argued that the 15-year enhancement was unconstitutional; this court rejected that

argument and affirmed. People v. Rouse, No. 1-11-3015 (2013) (unpublished summary order under

Illinois Supreme Court Rule 23(c)).

¶ 14 Rouse filed a pro se postconviction petition, which the trial court docketed and advanced

to the second stage. Rouse eventually made pro se amendments to his petition, and his counsel

elected to stand on the petition he filed. Counsel filed a certificate under Illinois Supreme Court

Rule 651(c) (eff. Jan. 1, 1967).

¶ 15 Rouse raised several claims. The first relevant here, Rouse claimed that trial counsel was

ineffective “where [her] failures prevented [Rouse] from testifying.” Rouse acknowledged that the

on-record colloquy with the trial court “indicates that [he] knowingly waived his right to testify.”

But he claimed that counsel told him, in an off-record discussion, that “if he testified it would

make her look bad because she didn’t go over what his testimony would be.” Rouse alleged that

counsel ended their discussion by saying, “he needed to go along with her on this.” Anticipating

the State would argue waiver, Rouse alleged that “he wasn’t aware of all his options and rights

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during the court’s admonishments and moreover, that he [was] afraid of the consequences if he

snitched on his trial counsel.” Rouse attached a notarized affidavit to his petition attesting to these

facts.

¶ 16 Rouse also claimed trial counsel was ineffective for preventing him from exercising his

right to a jury trial. Rouse alleged that he spoke with his counsel before trial, who told him that he

should “take a bench trial.” Rouse responded that he believed a guilty verdict after a bench trial

would be harder to appeal. Counsel rebuffed, telling Rouse his belief was a myth and that “if

[Rouse] did not take a bench trial she would withdraw from representing him.” Based on this

discussion, Rouse chose a bench trial. Rouse further alleged that the trial court’s on-record

admonishments about his right to a jury trial did not make clear that he could have told the court

about counsel telling him she would withdraw. Rouse’s petition went on to say that he took trial

counsel’s admonishments to heart because he had “a brief criminal history [and had] never been

to trial before.” As with his previous claim, Rouse’s notarized affidavit contains these facts.

¶ 17 Finally, Rouse claimed that trial counsel was ineffective for failing to call his sister as a

witness. This claim is not in the petition because, as Rouse’s appellate counsel explains, pages

appear to be missing from the record. We can tell Rouse raised this claim, however, because the

State responded to it in its motion to dismiss.

¶ 18 As to Rouse’s claims about counsel failing to call him and his sister to testify, Rouse’s

affidavit alleged:

“[Rouse] informed [his] attorney that [he] had the money in [his] pocket

(about $3,000.00[)] because [he] owed multiple fines for driving with [a] suspended

license and that on the date that [he was] arrested [he] brought proof of insurance

for the vehicle he was driving so the Court threw out the fine that I thought I would

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receive. That [he was] on [his] way to DeKalb via public transportation when [he]

was stopped by officers who eventually took the money I had. That [his] sister

[would be] able to verify the fact that [he] had the money prior to leaving home that

day.”

The State moved to dismiss arguing that Rouse’s claims about counsel preventing him from taking

a jury trial or testifying were foreclosed by the trial court’s admonishments. As to Rouse’s claim

about his sister’s testimony, the State argued that, because she would be a biased witness, counsel

had a valid strategy for not calling her to the stand. The trial court granted the State’s motion and

dismissed Rouse’s petition.

¶ 19 Analysis

¶ 20 Rouse repeats the arguments he made in the trial court on ineffective assistance of counsel:

(i) interfering with his right to a jury trial, (ii) preventing him from testifying and, relatedly, being

unprepared to question him, and (iii) failing to call Rouse’s sister to corroborate the non-criminal

reason Rouse had almost $3000 in cash on him the day of the robbery. In the event we would be

inclined to find he forfeited the failure-to-prepare aspect of his second claim of ineffective

assistance, Rouse argues postconviction counsel provided unreasonable assistance by failing to

put that claim in its proper form. The State offers varying responses to each claim.

¶ 21 Post-Conviction Hearing Act

¶ 22 The Act provides a mechanism for criminal defendants to raise constitutional challenges

to their convictions or sentences. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Where, as

here, the trial court dismisses the petition at the second stage of proceedings, we consider whether

the petition makes a “substantial showing of a violation of constitutional rights.” Id. at 381. We

take all the petition’s well-pled facts as true, unless contradicted by the record, and we construe

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them liberally in the petitioner’s favor. Id. at 382. When a petitioner bases their claims on matters

outside the record, “it is not the intent of the [A]ct that [such] claims be adjudicated on the

pleadings.” (Internal quotation marks omitted.) Id. Because the trial court is prohibited from

making fact findings or credibility determinations, we review second stage dismissals de novo. See

id. at 388-89.

¶ 23 All of Rouse’s claims related to his trial counsel are governed the two-pronged test

evaluating deficiency and prejudice set out in Strickland v. Washington, 466 U.S. 668 (1984).

Rouse must make a substantial showing that (i) his trial counsel’s performance was deficient and

(ii) the deficient performance prejudiced him. People v. Utley, 2019 IL App (1st) 152112, ¶ 36.

We evaluate counsel’s deficiency by determining whether her performance “was objectively

unreasonable under prevailing professional norms.” (Internal quotation marks omitted.) Id. ¶ 38.

And we evaluate prejudice by asking whether there is a reasonable probability that the result of

the trial would have been different had counsel performed adequately. Id. ¶ 50.

¶ 24 We will evaluate each of Rouse’s claims in turn, but before we do, we address two attempts

the State made at oral argument to press claims not raised in its brief. First, the State’s brief

contains no argument challenging deficiency or prejudice under Strickland for Rouse’s claims that

counsel impeded his right to a jury trial and that counsel prevented him from testifying. Moreover,

the State’s brief makes no argument that Rouse’s claim about his counsel preventing him from

testifying is rebutted by the record. The State’s brief does make that argument about Rouse’s jury

trial claim, citing People v. Knapp, 2020 IL 124992, but neither Knapp nor an argument based on

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Knapp appear in the section of its brief addressing Rouse’s ineffectiveness claim related to his

right to testify.

¶ 25 During questioning on these points, a member of the panel asked whether we would have

to address these issues anyway. We do not; indeed, fairness to the adverse party for whom the

issue is new and a surprise and to the court that lacks the benefit of the parties’ analysis dictates

that we do not. The Illinois Supreme Court rules governing briefs, which apply with equal force

to appellants and appellees, explain that arguments not raised in briefs are forfeited. Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised *** in oral

argument, or on petition for rehearing.”); Ill. S. Ct. R. 341(i) (eff. Oct. 1, 2020) (applying, among

others, Rule 341(h)(7) to briefs for appellees). And this rule serves a vital function: to prevent

gamesmanship and preserve our role as a court of review unless exigent circumstances, not present

here, exist.

¶ 26 We acknowledge, of course, that petitioners bear the burden of making a substantial

showing of a constitutional violation to warrant relief under the Act. E.g., People v. Domagala,

2013 IL 113688, ¶ 35. But our supreme court has long held that “the principle of waiver applies to

the State as well as the defendant in a criminal case,” even in situations where the defendant bears

the ultimate burden on the merits. See People v. Holloway, 86 Ill. 2d 78, 91 (1981) (applying

waiver to State’s failure to argue against defendant’s standing to raise motion to suppress); see

also People v. O’Neal, 104 Ill. 2d 399, 407 (1984) (applying waiver to State even where State

responded to defendant’s argument but later did so under a different theory).

¶ 27 The dissent contends the majority has turned the burdens allocated to postconviction

petitioners raising Strickland claims “on their head.” Infra ¶ 73. We respond in two ways: (i) the

cases the dissent cites allow, but do not require, that we excuse an appellee’s waiver or forfeiture

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and (ii) even recognizing that we could excuse the State’s forfeiture, taking into account the

litigation posture of this case, we will not.

¶ 28 Turning first to the dissent’s cases, they do no more than allow us to consider an appellee’s

unbriefed arguments in certain circumstances. The dissent cites People v. Jefferson, 2021 IL App

(2d) 190179, for the unremarkable proposition that a party’s waiver is not binding on us and we

“ha[ve] the authority to recognize, unassisted by the appellee, an obvious lack of merit in a briefed

issue.” Infra ¶ 73; Jefferson, 2021 IL App (2d) 190179, ¶ 37. That we have the authority does not

mean, however, that we should exercise it in every case. First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 133 (1976) (“We do not feel that a court of review should be

compelled to serve as an advocate for the appellee or that it should be required to search the record

for the purpose of sustaining the judgment ***.”). Indeed, our supreme court gave us permission

to supplement an appellee’s submission on our own only where “justice requires” and the record

is simple and appellant’s claims easy to decide. Id.

¶ 29 The dissent relies on Healy v. Bearco Management, Inc., 216 Ill. App. 3d 945 (1991). There

we described the appellant’s burden in prosecuting their appeal in the context of waiver for failing

to include “argument or citation to authority.” Id. at 958. No one claims Rouse’s briefing or

arguments are deficient in this way, so Healy has no bearing.

¶ 30 Invoking our authority to look past the State’s waiver would be unjust under these

principles. Rouse’s petition made it to the second stage, so the State was a litigation participant in

the trial court. This means the State has been aware of the substance of Rouse’s arguments.

Moreover, Rouse raised developed arguments about both prongs of Strickland in his opening brief.

The State, on notice from the arguments about Strickland in the trial court and Rouse’s brief,

affirmatively decided to offer no response for two of his claims. We might have been inclined to

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excuse the State’s waiver had Rouse’s briefing been inadequate or confusing or if the State failed

to respond to a minor aspect of one of Rouse’s arguments. Needless to say, a party may narrow

the scope of a dispute by waiving elements on which their opponent would otherwise bear the

burden of persuasion.

¶ 31 We see no reason to excuse the State’s waiver of deficiency and prejudice under Strickland

for Rouse’s claims of ineffective assistance as to his right to a jury trial and right to testify.

Similarly, we will hold the State to its waiver of argument under Knapp as to Rouse’s

ineffectiveness claim related to his right to testify. We analyze Rouse’s claims against the

arguments the State properly made.

¶ 32 Impeding Right to a Jury Trial

¶ 33 Rouse first argues his counsel prevented him from exercising his right to a jury trial. He

claims she told him she would withdraw if he chose to a jury trial. As to prejudice, Rouse contends

that trial counsel’s conduct created a false choice between a bench trial at which he would have

counsel and a jury trial at which he would have to represent himself; in other words, counsel’s

actions caused him to choose a bench over a jury trial.

¶ 34 Importantly, as we mentioned, the State makes no argument contesting Rouse’s claims of

deficiency and prejudice and, therefore, waives any claim that Rouse did not make a substantial

showing of a constitutional violation under Strickland. The State only responds that the record

positively rebuts Rouse’s claim. We disagree.

¶ 35 The State relies heavily on Knapp, 2020 IL 124992, which held that the trial court’s

admonishments can positively rebut a claim that a defendant received bad advice from counsel

before waiving the right to testify. See id. ¶¶ 52-54. In Knapp, however, there was a one-to-one

relationship between the content of the trial court’s admonishments and the alleged deficient

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advice counsel offered. The petitioner alleged that counsel misadvised him, during multiple

conversations about his decision to testify, that his testimony would have to be supported by

corroborating evidence. Id. ¶¶ 33-34. Counsel then failed to tell him that the decision whether to

testify belonged exclusively to him. Id. ¶ 34. The trial court admonished the defendant before he

waived his right to testify and expressly asked whether he “underst[oo]d that the right to testify is

a decision that [he] and [he] alone have the right to make.” (Internal quotation marks omitted.)

Id. ¶ 26. The defendant confirmed he understood. Id.

¶ 36 The trial record and Rouse’s postconviction allegations do not similarly match. Critically,

three of Rouse’s factual allegations from his affidavit state (i) his counsel advised him to take a

bench trial, (ii) his counsel told him she would withdraw if he did not take a bench trial, and (iii)

he believed he had to follow his counsel’s advice because he had never gone to trial before. The

trial court’s admonishment, unlike the admonishments in Knapp, did not include an attempt to help

Rouse understand that choosing between a bench trial and a jury trial involved a decision only he

could make. See, e.g., People v. Clendenin, 238 Ill. 2d 302, 318 (2010) (listing “whether to waive

a jury trial” as one of rights belonging exclusively to defendant). The court in Knapp focused

heavily on the defendant’s acknowledgment that “the decision *** to testify was his alone.”

Knapp, 2020 IL 124992, ¶ 54. Because the trial court’s admonishments did not similarly cover the

exclusive nature of Rouse’s decision to choose between a bench trial and jury trial, his claim that

counsel’s advice pressured him to choose a jury trial is not rebutted by the record. We do not

decide whether the trial court’s admonishments were complete or proper—that is irrelevant. We

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ask whether they encompassed the information Rouse claims he did not know, which is the only

way the State could invoke the record to rebut his claim.

¶ 37 The dissent defends the trial court’s admonishments as sufficient, saying we “engraft a

requirement that a trial court must specifically admonish a defendant that the decision of choosing

a bench or jury trial is exclusively [a] defendant’s.” Infra ¶ 80. We do no such thing. We stated the

accuracy or completeness of the admonishments is irrelevant. But, as the dissent itself

acknowledges, the content of the admonishments is relevant to determine whether the record rebuts

Rouse’s claim. A key aspect of the claim is that Rouse did not know he could contradict counsel’s

authority and insist on a jury trial. Our point about the trial court’s admonishments is simply that,

because the admonishments did not cover Rouse’s exclusive authority to choose a jury trial

(whether they had to or not), the admonishments cannot rebut his claim.

¶ 38 The State does not focus on, indeed does not acknowledge, the trial court’s admonishments.

Instead, the State construes Rouse’s allegations about counsel’s statements to him as a “threat”

and argues the trial court’s admonishments covered threats and promises. This argument ignores

the liberal construction we must give Rouse’s allegations at the second stage. Rouse alleged that

“it’s because of [his] attorney[’s] authority that [he] elected to take a bench trial” and his lack of

experience with trial procedure led him to “believe[ his] attorney to the utmost.” Liberally

construing Rouse’s petition, he does not allege that counsel “threatened” him; rather, he alleges

that he did not know that he could go over his counsel’s head and choose a jury trial when she

insisted on a bench trial. Again, the trial court’s admonishments did not cover—and, therefore, did

not cure—Rouse’s misperception.

¶ 39 The dissent explains why Rouse’s allegations show his attorney threatened him in a way

that Rouse should have understood as covered by the trial court’s admonishments. In reaching this

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conclusion, the dissent cherry-picks one word, “forced,” from Rouse’s petition. The dissent does

so to support its position that Rouse understood counsel’s words to be a “threat.” But Rouse

expressly alleges he did not understand the trial court’s admonishments to cover counsel’s

behavior:

“The record in this case will reflect that the Court admonished [Rouse] of this right [to a

jury trial] and the waiver thereof. What [Rouse] wasn’t aware of during said

admonishments, was the fact that he could have brought it to the attention of the Court

defense counsel’s admonishment that she would withdraw if he chose[ ] a jury trial.”

First, this passage shows Rouse used varying language, including the word “admonishment,” to

describe counsel’s words, language that sounds much less like a threat. Second, and most

important, Rouse explains he did not understand the trial court’s admonishments to cover counsel’s

statements.

¶ 40 As we have said, Rouse’s interpretation of the court’s admonishments and counsel’s

conduct is reasonable. The dissent can only reach the contrary conclusion by giving Rouse’s

allegations their narrowest meaning and construing them against Rouse. Maybe the dissent will be

vindicated and its interpretation will be right, but the trial court—at the third stage—decides

whether Rouse’s interpretation of the court’s admonishments is credible. See People v. Allen, 2015

IL 113135, ¶ 45. The dissent takes this task on itself; a task we should not undertake at this stage

of postconviction review. Id.

¶ 41 The State and dissent also rely on People v. Mabrey, 2016 IL App (1st) 141359, which we

distinguish on the same grounds as Knapp. The defendant claimed that police officers coerced his

confession and he could not testify about their coercion at trial because another suspect in the crime

had threatened him not to testify. Id. ¶ 43. We found the defendant’s claim rebutted by the record

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because the trial court confirmed on the record no one had threated the defendant about testifying

and the decision belonged to him alone. Id. Because Rouse’s claim does not rest on characterizing

counsel’s statements as “threats,” we find Mabrey distinguishable because the trial court’s

admonishments did not cover the conduct of Rouse’s counsel.

¶ 42 For completeness’ sake, we recognize that this division recently (though not unanimously)

applied Knapp in People v. Paige, 2022 IL App (1st) 200746-U. Accepting for the sake of

argument that Paige was correctly decided, it is also distinguishable. Like the defendants in Knapp

and Mabrey, the defendant in Paige alleged that trial counsel never told her she had a fundamental

right to testify. Id. ¶ 39. The trial court, however, told her she had a fundamental right to testify

and that only she could decide whether to do so. Id. These same admonishments are missing from

the trial court’s admonishments to Rouse and so, unlike Paige, the admonishments fail to cover

the deficient performance Rouse alleges.

¶ 43 The State waived any argument that Rouse failed to meet the elements of his Strickland

claim related to his right to a jury trial. The dissent apparently perceives some hypocrisy based on

the unpublished decision in People v. Bell, 2016 IL App (1st) 140647-U, where a member of this

majority previously found a similar claim failed because choosing between a bench and jury trial

is a traditional matter of trial strategy. Id. ¶ 59. For what it is worth, Bell is distinguishable. There,

despite alleging he felt “forced” into a bench trial by private counsel’s statement they would

withdraw if he took a jury, the record showed the defendant later felt comfortable firing private

counsel and relying on the public defender. Id. ¶ 57. This additional fact rebutted the defendant’s

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claim. No such additional facts exist here. Moreover, the dissent should not have cited Bell because

the parties would be unable to do so. See Ill.S.Ct.R. 23(e) (eff.Jan.1, 2021).

¶ 44 But the State did not defend trial counsel’s statements as grounded in strategy and for

reasons we have discussed at length, we hold the State to its waiver. We reverse the trial court’s

dismissal of this claim and remand for an evidentiary hearing.

¶ 45 Impeding Right to Testify

¶ 46 Rouse next argues he made a substantial showing that trial counsel was ineffective for

failing to prepare him to testify, which prevented Rouse from exercising his right to testify. He

claims counsel’s deficiency prejudiced him because the court never heard the noncriminal reasons

that he possessed $3000: to pay traffic fines. As before, the State makes no argument challenging

Rouse’s assertion of deficiency and prejudice under Strickland. In an attempt to rehabilitate the

State’s waiver, the dissent imports the State’s Strickland arguments against Rouse’s claims at other

points in its brief as if made in the section dealing with Rouse’s right to testify. But, at the second

stage, we evaluate the merits claim by claim. See People v. Logan, 2011 IL App (1st) 093582,

¶ 58. The State makes one argument: Rouse’s petition does not adequately plead a failure-to-

prepare claim. We disagree. Construing Rouse’s petition liberally, as we must, we find sufficient

support in his pleadings to justify an evidentiary hearing.

¶ 47 The caption to this portion of Rouse’s petition states he was denied the effective assistance

of counsel “where trial counsel’s failures prevented [him] from testifying.” After explaining the

trial court’s on-record admonishments about his right to testify, he alleges counsel had an off-

record conversation during which she told him: “if he testified it would make her look bad because

she didn’t go over what his testimony would be.” (Emphasis added). Counsel then doubled down

and told Rouse that “he needed to go along with her on this.” Rouse also cited at least one case

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with a substantial discussion of counsel’s ineffectiveness for failing to prepare a defendant for her

testimony. See Jones v. Jones, 988 F. Supp. 1000, 1006-07 (E.D. La. 1997). Rouse then repeated

his major factual premise in his affidavit.

¶ 48 Aside from repeatedly stating that “no such claim was raised in [Rouse]’s pro se petition,”

the State does not point to a specific deficiency in the petition that would warrant a conclusion that

Rouse failed to adequately raise this claim. Liberally construing Rouse’s petition, his claim is that

trial counsel prevented him from exercising his right to testify by failing to prepare him and by

telling him that he had to go along with her to prevent embarrassing her. Because we agree that

Rouse’s petition sufficiently presented the claim, we need not address his argument that

postconviction counsel provided unreasonable assistance by failing to preserve it.

¶ 49 The State makes much that Rouse’s opening brief “conced[es]” his petition “did not spell

out the failure-to-prepare claim unambiguously.” The State takes this selective quotation from a

section of Rouse’s brief dedicated to the alternative argument that postconviction counsel provided

unreasonable assistance by failing to sufficiently allege the failure-to-prepare claim in the event

this court construed the petition as forfeiting the claim. In the paragraph immediately preceding

the State’s quotation, Rouse’s brief says, “Rouse maintains that his pro se amended petition, which

alleged (among other things) that trial counsel’s failure to consult adequately with defendant

amounts to ineffectiveness of counsel, sufficiently raised the failure-to-prepare claim.” (Internal

quotation marks omitted.) Reading Rouse’s argument in context shows he did no more than make

an alternative argument should this court adopt an unfavorable construction of his petition.

¶ 50 Again, the State has waived the argument that Rouse has not made a substantial showing

of the two elements of his Strickland claim as it relates to his right to testify. Because we have

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rejected the State’s only argument in favor of affirming, we reverse the second stage dismissal of

this claim and remand for an evidentiary hearing.

¶ 51 Failure to Call Rouse’s Sister

¶ 52 Finally, Rouse claims trial counsel knew Rouse’s sister was available to testify that “the

money the victims claimed belonged to them was not, in fact, proceeds of the robbery.” Rouse

argues he was prejudiced because the State’s case suffered from weaknesses—the victims’

identifications were based on a “necessarily suggestive one-man show-up,” Rouse had one of the

cell phones from the robbery, and the gun had fingerprints on it that did not belong to Rouse. He

compares the State’s testimony with his and his sister’s affidavits —the money officers found on

Rouse belonged to him and the cell phone officers claimed to have found on him was brought back

to the scene from somewhere else.

¶ 53 The State does not separate its responses into the deficiency and prejudice prongs of

Strickland. That said, it appears the State argues that counsel did not perform deficiently because

(i) Rouse’s sister never averred she was willing to testify, and (ii) Rouse’s sister did not have

personal knowledge of the source of the money. The State then argues Rouse cannot have suffered

prejudice from a claimed deficiency because the State’s case was too strong for her testimony to

impact the outcome.

¶ 54 Before addressing the State’s arguments, we note the dissent implies we should presume

the trial court ruled correctly because the petition is missing a page relating to Rouse’s Strickland

claim about his sister’s testimony. Infra ¶ 96 (citing People v. Kirkpatrick, 240 Ill. App. 3d 401,

406 (1992) (“any doubt arising from incompleteness of the record will be resolved against the

appellant”)). But the missing page does not create any doubt to resolve. We know from the trial

court’s order dismissing the petition that Rouse raised a Strickland claim for counsel’s failure to

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call his sister. And the trial court’s order gives us the essential element of the claim: “Petitioner

contends that his sister would have testified that petitioner left his house that morning with a large

sum of cash.” We also know the factual basis for this claim from Rouse’s affidavit and his sister’s

affidavit. Simply put, the missing page does not instill doubt as to the nature of Rouse’s claim, so

we will address it on the merits.

¶ 55 We reject the State’s first argument and conclude that, construing Rouse’s petition

liberally, his sister would have testified. We acknowledge, as the State argues, that Rouse’s sister’s

affidavit does not say she would be willing to testify. But Rouse averred in his own affidavit that

his sister “w[as] able to verify the fact that [he] had the money prior to leaving home that day.”

The State has not cited, and we have not found, cases requiring a potential witness’s affidavit to

expressly say they would be willing to testify. Crucially, the Illinois supreme court has said the

opposite. Allen, 2015 IL 113135, ¶ 41 (rejecting argument that petitioner’s claim fails because

affidavit “does not indicate [a witness] would testify to the facts therein”). While Allen was a first-

stage case, our obligation to construe the petition liberally (see id.) carries over to second-stage

review. Taking Rouse’s affidavit, together with his sister’s affidavit, we find the petition makes a

sufficient showing that his sister would have been available to testify to the facts in her affidavit

had counsel called her.

¶ 56 For similar reasons, we are unpersuaded by the dissent’s concern that Rouse never told his

counsel his sister would testify. Paragraph 4 of Rouse’s affidavit says:

“That I informed my attorney that I had the money in my pocket ***

because I owed multiple fines for driving with [a] suspended license and that on the

date that I [was] arrested I brought proof of insurance for the vehicle I was driving

so the Court threw out the fine that I thought I would receive. That I w[as] on my

- 20 - No. 1-21-0761

way to Dekelb (sic) via public transportation when I was stopped by officers who

eventually took the money I had. That my sister w[as] able to verify the fact that I

had the money prior to leaving home that day.”

Though the sentences are broken up by periods and not semi-colons, they all start with the word

“that.” Thus, the paragraph can reasonably be read as a list of things Rouse told his counsel.

Because this construction is reasonable, we can infer (at least at this stage) that Rouse told his

counsel his sister would testify.

¶ 57 The State cites People v. Wallace, 2015 IL App (3d) 130489, ¶ 29, for the proposition that

Rouse’s sister’s affidavit is insufficient because it contains hearsay. But our supreme court recently

overruled Wallace on that exact point. People v. Robinson, 2020 IL 123849, ¶ 78 (rejecting

reliance on Wallace and other cases decided before amendment to Illinois Rule of Evidence

1101(b)(3) (eff. Apr. 8, 2013), exempting postconviction hearings from the rules of evidence).

Even if the portion of Rouse’s sister’s affidavit relaying the words he spoke to her were ultimately

inadmissible, there is enough corroboration in her affidavit. For example, her affidavit explains

that she saw Rouse leave the house and before he did so she asked if he needed “all that money.”

Even without Rouse’s verbal response, his sister’s affidavit (construed liberally) suggests she saw

the money he had and it was enough money for her to comment on it. Her affidavit also does not

have to stand on its own. For our purposes, we need to ask whether it corroborates Rouse’s claims

and the facts alleged in his affidavit, and it does.

¶ 58 The dissent levels one other attack on Rouse’s and his sister’s affidavits, calling them “self-

serving.” Infra ¶ 95. Our supreme court has rejected the State’s attempts to make similar

arguments, saying “the mere fact that an affidavit serves the defendant’s interests does not render

it inherently incredible.” People v. Chambers, 2016 IL 117911, ¶ 83. It would be surprising for a

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defendant to submit an affidavit that did not serve his or her own aims. Id. (“a defendant is highly

unlikely to submit an affidavit that undermines his [or her] position”). And, as our supreme court’s

language suggests, describing an affidavit as “self-serving” is a credibility determination, which is

reserved for third-stage review.

¶ 59 We turn then to the State’s most noteworthy argument—that Rouse’s sister’s affidavit

would not have impacted the outcome due to the strength of the trial evidence. At the outset, we

underscore the difficulty squaring this argument of the State’s with its failure to challenge

Strickland’s prejudice prong as it relates to Rouse’s own testimony. Though we will not impute

the State’s concession as to Rouse’s testimony onto its argument about his sister’s testimony, the

two relate inextricably because his sister’s testimony served primarily to corroborate his.

¶ 60 We find prejudice in the context of a Strickland claim “where there [is] a reasonable

probability that *** the result of the proceedings would have been different” had counsel

performed adequately. People v. Lucious, 2016 IL App (1st) 141127, ¶ 45. Prejudice emerges

“ ‘even when the chance that minimally competent counsel would have won an acquittal is

“significantly less than 50 percent,” as long as a verdict of not guilty would be reasonable.’ ” Id.

(quoting People v. McCarter, 385 Ill. App. 3d 919, 935 (2008), quoting Miller v. Anderson, 255

F.3d 455, 459 (7th Cir. 2001)). The dissent takes issue with the word “significantly” from Lucious

by quoting McCarter. But the cases the dissent offers in response do not require a defendant raising

a Strickland claim to prove it by a preponderance of the evidence. Stanley v. Bartley, 465 F.3d

810, 814 (7th Cir. 2006) (“reasonable chance” of acquittal “needn’t be a 50 percent or greater

- 22 - No. 1-21-0761

chance”). Whether “significantly” less or merely less than 50%, we need only find our confidence

in the outcome undermined. Id.

¶ 61 Trial counsel’s theory disputed identification. She attacked the show-up as suspect. See

In re T.B., 2020 IL App (1st) 191041, ¶ 40 (“courts have long recognized the inherent

suggestiveness of show-up procedures, no matter how properly the police acted”). The officers’

testimony also suffered from inconsistencies. For example, when Wenta found Rouse in an alley,

he said Stanley was behind Rouse with his gun pointed at him, but Stanley testified that he was

busy retrieving the gun the offender threw and then immediately went north in the alley where he

saw Wenta arresting Rouse. Stanley never testified that he drew his gun. Also, neither officer saw

the offender for the entirety of the chase. Stanley stopped chasing the offender when he threw the

gun, and Wenta drove around to a parking lot where he apprehended Rouse. But Wenta was not

part of the foot chase. The State points out the proceeds of the robbery, but Rouse’s affidavit

provides a contrary explanation. He denied possessing a cell phone, and he offered a noncriminal

reason for possessing the money.

¶ 62 The dissent says we have overblown these inconsistencies. That is no more than a

credibility determination in disguise—the officers’ account is more credible than Rouse’s. We do

not refer to the inconsistencies in the officers’ testimony to suggest they should not have been

believed (especially given the lack of contrary evidence before the fact finder at trial). Rather, we

raise these weaknesses in their testimony to show that there is a triable issue of fact about the

degree of prejudice Rouse suffered by failing to have his testimony and his sister’s testimony

before the judge.

¶ 63 Notably, trial counsel tried to argue in closing that Rouse possessed his own money: “These

individuals are not clear about how much money they had on them; and for the State then to argue,

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well, it’s the same money that was found on Mr. Rouse, how do you know that? How do you know

that Mr. Rouse didn’t have money on him? It’s not illegal for him to have his own money on him.”

Counsel attempted this strategy without evidence to back up her speculation; evidence we now

have in the form of Rouse’s and his sister’s affidavits.

¶ 64 At this stage of postconviction proceedings, the allegations in Rouse’s petition essentially

create a credibility contest. The State has show-up identifications and the proceeds of the robbery;

Rouse denies involvement, challenges the identifications as suspect, and explains why he had

money on him. At this stage, we do not weigh the relative credibility of these accounts, and ties

go to the allegations in the petition. See Coleman, 183 Ill. 2d at 382 (we interpret allegations in

petitions liberally). Applying a liberal construction and taking his factual allegations as true, Rouse

has made a substantial showing that there is at least a “significantly less than 50 percent” chance

the outcome would have been different had counsel called him and his sister to testify.

¶ 65 The dissent concludes by accusing us of abusing the liberal pleading standards for second-

stage petitions by “cobbling together a petition for the defendant’s benefit.” Frankly, the dissent’s

accusation is hard to take when the dissent has taken it on itself to spend pages making arguments

the State chose not to make against two of Rouse’s claims. And the dissent’s concern about

overindulging liberal pleading standards does not give it license to do the opposite: ignore them.

At every turn, the dissent gives Rouse’s claims their least charitable construction, decides the

allegations are not worthy of belief, or concludes they cannot be credible because the State

mustered contrary evidence at trial. None of those considerations are for us to make—they are for

the trial court to make at an evidentiary hearing.

¶ 66 In sum, we reverse the trial court’s dismissal and remand for an evidentiary hearing on

Rouse’s claims of ineffective assistance of counsel as they relate to (i) counsel’s failure to prepare

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and present Rouse’s testimony, (ii) counsel’s interference with Rouse’s right to a jury trial, and

(iii) counsel’s failure to call Rouse’s sister to testify.

¶ 67 Reversed and remanded.

¶ 69 PRESIDING JUSTICE LAVIN, dissenting:

¶ 70 Because I do not believe defendant has demonstrated a substantial showing of a

constitutional violation, I would affirm the circuit court’s dismissal of defendant’s petition on the

State’s motion, and I respectfully dissent. 1

¶ 71 Although unclear from the majority opinion, I would first note that a postconviction

petitioner is not entitled to an evidentiary hearing as a matter of right (People v. Coleman, 183 Ill.

2d 366, 381 (1998)), and at the second stage of postconviction proceedings, “the defendant bears

the burden of making a substantial showing of a constitutional violation.” (Emphasis added).

People v. Allen, 2015 IL 113135, ¶ 21; see People v. Domagala, 2013 IL 113688, ¶ 35 (same). “If

1 It is worth clarifying what defendant’s “postconviction petition” encompasses. Here, defendant filed his pro se postconviction petition on August 2, 2013, raising claims that he was not adequately informed of his sentence and challenging his show-up identification. Defendant alleged due process violations and ineffective assistance of counsel. Defendant attached a detailed affidavit essentially explaining why he was carrying a large amount of cash ($3000 for a traffic fine) and explaining his subsequent travel from the Markham courthouse to downtown Chicago, where police accosted him and then took him to the scene, essentially planting evidence on him. Defendant also attached his sister’s handwritten affidavit basically averring that defendant was carrying a large amount of money to pay traffic fines that morning. This petition proceeded to the second stage, where defendant was appointed counsel. On September 29, 2016, defendant filed his amended pro se petition, containing the allegations that are currently at issue on appeal. This petition was the focus of proceedings below. Defendant attached an “amended sworn affidavit,” wherein he attested more specifically to the claims he was raising in his amended petition (such as regarding the jury waiver issue). He also attested that he had informed defense counsel about the cash he carried on the day of his arrest and then he significantly condensed the exonerating facts from his previous affidavit. Also on September 29, 2016, postconviction counsel filed an Illinois Supreme Court Rule 651(c) (eff. Jan. 1, 1967) certificate, stating “I have made no amendments to the [sic] either pro se Petition previously filed or the Amended Petition as both pro se Petitions are sufficient for the adequate presentation of Petitioner’s contentions.” At the second-stage, defendant’s petition thus consisted of the amended pro se petition, which incorporated the previously filed pro se petition. The majority opinion does not make clear that the “petition” encompasses both pro se filings and both of defendant’s affidavits, plus that of his sister. - 25 - No. 1-21-0761

the defendant has carried his burden to make a substantial showing of a constitutional violation

throughout the second stage, the court advances the petition to the third stage.” (Emphases added).

Allen, 2015 IL 113135, ¶ 22. To do so, the allegations in the petition must be supported by the

record in the case or by accompanying affidavits. Coleman, 183 Ill. 2d at 381; see Allen, 2015 IL

113135, ¶ 43 (the attached evidence must show the petition’s allegations are capable of objective

and independent corroboration and identify with reasonable certainty the sources, character, and

availability of the alleged evidence supporting the petition’s allegations). Nonfactual and

nonspecific assertions which merely amount to conclusions are not sufficient to require a hearing

under the Act. Coleman, 183 Ill. 2d at 381. Moreover, under our plenary review, this court must

make its own independent assessment of the petition’s allegations in order to formulate the legally

correct answer. Id. at 388. Nothing in our postconviction jurisprudence allows the reviewing court

to ignore the record. People v. Knapp, 2020 IL 124992, ¶ 54.

¶ 72 As to Strickland v. Washington, 466 U.S. 668 (1984), it is similarly the defendant who

bears the burden of showing that counsel’s performance was deficient and that this deficient

performance prejudiced the defense. Id. at 687-89, 693 (“When a convicted defendant complains

of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness,” and “the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy,’ ” and, further, generally “the defendant [must] affirmatively prove

prejudice.”); see People v. Tate, 2012 IL 112214, ¶ 19 (noting, at the second stage of

postconviction proceedings, a defendant is required to “ ‘demonstrate’ or ‘prove’ ineffective

assistance by ‘showing’ that counsel’s performance was deficient and that it prejudiced the

defense,” in contrast to the first-stage where the standard is “arguable”).

- 26 - No. 1-21-0761

¶ 73 The majority, however, turns these principles on their head and essentially shifts the burden

to the State under the guise of forfeiture. Unfortunately for defendant and the majority, these are

not the rules. The majority fails to cite a supreme court case holding that the State’s forfeiture of

an argument entirely eliminates the defendant’s burden of establishing an error in the first place.

See supra ¶ 27; cf. People v. Holloway, 86 Ill. 2d 78, 91 (1981) (finding the State forfeited the

assertion that the codefendant lacked standing to challenge a warrantless entry where the State

failed to raise the matter in the trial court and the codefendant could have conceivably established

a possessory interest in the premises if the State had done so). Moreover, the majority confuses the

claimed deficiencies in the State’s brief for concessions. See supra ¶ 60. Here, having reviewed

the record and parties’ briefs, it is clear that defendant cannot sustain his burden under the Act,

under Strickland, or as the appellant. See People v. Jefferson, 2021 IL App (2d) 190179, ¶¶ 37, 48

(a court has the authority to recognize, unassisted by the appellee, an obvious lack of merit in

a briefed issue, and a defendant, notwithstanding any forfeiture by the State, has the burden to

affirmatively show error); see also First Capitol Mortgage Corp. v. Talandis Construction Corp.,

63 Ill. 2d 128, 131-33 (1976) (the burden of persuasion remains with the appellant despite the

appellee’s failure to file a brief); Healy v. Bearco Management, Inc., 216 Ill. App. 3d 945, 958

(1991) (“The party prosecuting the appeal bears the burden of showing affirmatively the errors

assigned on review.”).

¶ 74 Defendant’s Jury Trial Claim

¶ 75 First, as to defendant’s jury waiver claim detailed in his petition, I agree with the State that

this claim is rebutted by the record. See Domagala, 2013 IL 113688, ¶ 35. In his petition, defendant

alleged that his counsel was deficient when she told him that “if Petitioner did not take a bench

trial she would withdraw from representing him,” and he was under the impression withdrawal

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meant he would be representing himself. He alleged that it was “because of Counsel’s Authority

that Petitioner elected to take a bench trial.” Yet, the record shows that prior to trial, after

explaining to defendant the difference between a bench and jury trial, the court asked, “Did anyone

threaten you or promise you anything to make you choose a bench trial?” See Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/threat (last visited Nov. 16,

2022) [https://perma.cc/5LJB-ZX3S] (defining “threat” as “an expression of intention to inflict

evil, injury, or damage,” “one that threatens,” “an indication of something impending”). Defendant

responded “No,” and the court then verified “You’re choosing the bench trial of your own free

will?” Defendant responded, “Yes, sir,” and further signed the written jury waiver form.

¶ 76 On this record, defendant thus verified that it was his free will (and not that of his attorney)

to take the bench trial and, moreover, that no one had threatened him into making that choice.

Although defendant asserted in his petition that he was unaware he “could have brought [his

allegations] to the attention of the trial court,” as he had never been to trial before, the trial court

clearly presented him with such an opening during the aforementioned colloquy. Moreover,

defendant was no stranger to the criminal justice system, having been convicted in 2008 of

aggravated discharge of a firearm. Around the time of this case, he also had a felony drug

possession case pending, for which he was later convicted. Likewise, nowhere did defendant allege

that counsel told him he would be representing himself if she withdrew, gutting any claim of

deficiency in that regard. Indeed, he was represented by a public defender; had his counsel

withdrawn, defendant would have been assigned another public defender. Thus, defendant’s

postconviction claim in support of ineffectiveness qualifies as textbook record rebuttal. See People

v. Blalock, 2022 IL 126682, ¶¶ 48-49; People v. Mabrey, 2016 IL App (1st) 141359, ¶¶ 14, 43; cf.

Knapp, 2020 IL 124992, ¶ 54.

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¶ 77 The majority nevertheless maintains the allegation—“if Petitioner did not take a bench trial

she would withdraw from representing him”—could be construed as an admonishment, rather than

a threat, thus falling outside of the ambit of record rebuttal. Given defendant’s characterizations in

his petition, before the postconviction court, and on appeal, I cannot agree. In his petition,

defendant wrote that defense counsel’s “short-comings” included “forcing defendant to take a

bench trial” (emphasis added), and he cited an appellate court case similarly reflecting a

defendant’s forced choice. As noted by the State during oral arguments, in defendant’s response

to the State’s motion to dismiss the petition below, defendant contended that his “counsel

threatened to withdraw if he did not agree to a bench trial,” (emphasis added) and asserted the

central issue was whether defendant’s jury trial waiver was understandingly and knowingly made

(and, thus, not ineffectiveness!). Postconviction counsel thus abandoned characterizing the

statement of defendant’s trial counsel as an admonishment.

¶ 78 Even in defendant’s opening appellate brief, he asserts that trial counsel “coerced” him

“into choosing a bench trial,” rendering ineffective assistance. See Appellant’s Brief, pages 16 and

18 (“had counsel not coerced [defendant] into waiving his right to a jury, he would have exercised

that right”); see also Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/coerce (last visited Nov. 10, 2022) [https://perma.cc/BYP5-KBYQ]

(defining “coerce” as “to compel to an act or choice,” “to achieve by force or threat,” “to restrain

or dominate by force”). While he later backtracks from this representation, it remains prominent

in his brief. Under the doctrine of invited error, a defendant may not request to proceed in one

manner and later contend that the course of action was in error. See People v. Harding, 2012 IL

App (2d) 101011, ¶ 17.

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¶ 79 Regardless, these characterizations all qualify as admissions that defendant’s principal

allegation involved a threat. See Bank of Chicago v. Park National Bank, 277 Ill. App. 3d 167,

172 (1995) (“A judicial admission is a deliberate, clear, unequivocal statement of a party regarding

a concrete fact within the party’s peculiar knowledge and is conclusive upon the party making it,

thereby relieving the opposing party from presenting any evidence.”); see also Jordan v. Knafel,

355 Ill. App. 3d 534, 544 (2005) (a court may consider judicial admissions in the record when

ruling on a motion to dismiss); Bauer v. Saper, 133 Ill. App. 2d 760, 762 (1971) (noting, an

attorney can make admissions that are binding on his client). 2 At the very least, they represent

allegations that are not well-pled and so do not merit further attention from any court. See People

v. Pendleton, 223 Ill. 2d 458, 473 (2006). For these reasons, defendant failed to fulfill his burden

of showing a substantial constitutional violation as to the jury waiver issue. 3

¶ 80 It bears noting that, here, the admonishments of the trial court are relevant to measure

whether the record rebuts defendant’s claim that his counsel was ineffective, i.e., deficient for

threatening him and depriving him of choice, which essentially made his waiver involuntary. In

an effort to establish that defendant’s allegations were not rebutted by the record, the majority

relies on Knapp and appears to engraft a requirement that a trial court must specifically admonish

2 General civil practice rules and procedures apply to the extent they do not conflict with the Act. People v. Bailey, 2017 IL 121450, ¶ 29. 3 I find it noteworthy that a very similar issue was raised in People v. Bell, 2016 IL App (1st) 140647-U, where the defendant argued he was “coerced into foregoing a bench trial when his attorney threatened to withdraw if the defendant did not select a jury trial.” Id. ¶ 53. The authoring judge, who is also a member of the present panel, concluded the defendant failed to make a substantial showing of ineffective assistance of counsel because “this case falls within the scope of cases in which an attorney’s advice on whether to take a bench or a jury trial constitutes trial strategy.” Id. ¶ 59. The court also concluded in a rather circular fashion that the attorney’s statements did not force defendant to take a jury trial: “Even assuming that counsel would have followed through and actually withdrawn from the case had the defendant elected a bench trial, the defendant would still have been afforded his right to a bench trial. At no point was he deprived of that option.” Id. ¶ 57. Additionally, the court made a credibility finding that the defendant was not believable because he later fired his private counsel at sentencing. These conclusions are seemingly at odds with the present opinion. - 30 - No. 1-21-0761

a defendant that the decision of choosing a bench or jury trial is exclusively defendant’s. Notably,

however, Knapp was a right to testify case. While the right to testify and the right to a jury trial

are similar (they are both fundamental constitutional rights and solely up to the defendant), the

admonishments a court must issue to ensure voluntariness are different. See Knapp, 2020 IL

124992, ¶ 46; People v. Bracey, 213 Ill. 2d 265, 269 (2004); People v. Ramey, 152 Ill. 2d 41, 54

(1992).

¶ 81 For jury waiver, a trial court is not required to provide any particular admonition or

information regarding that right. People v. Bannister, 232 Ill. 2d 52, 66 (2008). And, whether the

jury waiver is valid “cannot be determined by application of a precise formula, but rather turns on

the particular facts and circumstances of each case.” Bracey, 213 Ill. 2d at 269. What is pivotal to

the defendant’s understanding, when waiving the right to a jury trial, is that the facts of the case

will be determined by a judge and not a jury. Bannister, 232 Ill. 2d at 69. Defendant bears the

burden of establishing that his jury waiver was invalid. People v. Foster, 2022 IL App (2d) 200098,

¶ 29. Here, for the reasons already stated, the admonitions by the trial court ensured that

defendant’s jury waiver was knowing and voluntary and not based on any allegedly erroneous

advice by counsel. Cf. Knapp, 2020 IL 124992, ¶ 54.

¶ 82 Defendant’s Right to Testify Claim

¶ 83 Second, as to defendant’s contention that his trial counsel’s lack of preparation impeded

him from testifying, the majority maintains that defendant is entitled to an evidentiary hearing

because the State failed to argue Strickland in its appellate brief. This is incorrect. While the State

could have been more articulate in arguing the matter specifically as to the right to testify claim,

the State’s brief at the outset identifies the Strickland standard and later maintains defendant cannot

establish a substantial showing of prejudice. Significantly, defendant’s appellate counsel conceded

- 31 - No. 1-21-0761

at oral argument that notwithstanding any forfeiture by the State, this court would still need to find

prejudice under Strickland for a reversal. Again, the burden of establishing Strickland prejudice

under the Act is on defendant. See People v. Lewis, 2022 IL 126705, ¶ 46 (“Strickland requires a

defendant to ‘affirmatively prove’ that prejudice resulted from counsel’s errors.”).

¶ 84 Defendant, however, fails to sustain that burden. In the amended petition, itself, defendant

states, “In order to not provide the State with too much information that would prepare them for

the cross-examination of Petitioner after he testify [sic]; Petitioner preserves the right to later give

this Honorable Court a detail [sic] statement of what his testimony would have been during his

testimony.” This failure to identify what his trial testimony would have been defeats any claim that

he was prejudiced by the absence of that testimony. See People v. Barkes, 399 Ill. App. 3d 980,

989-90 (2010); People v. Dupree, 2018 IL 122307, ¶ 37 (“there can be no substantial showing of

ineffective assistance of counsel for failure to investigate or call a witness if there is no evidence

that the exculpatory evidence actually exists”). Prejudice under Strickland cannot be based on

“mere conjecture or speculation.” (Internal quotation marks omitted.) People v. Johnson, 2021 IL

126291, ¶ 58. To the extent defendant’s detailed affidavit attached to his initial pro se petition or

the condensed version attached to his amended petition can be construed as potential testimony, I

find it is contradicted by the aforementioned averment in his amended petition. At the very least,

the ineffectiveness claim does not appear well-pled. See Pendleton, 223 Ill. 2d at 473; see also

Dupree, 2018 IL 122307, ¶ 31 (noting, a postconviction petitioner must clearly set forth the

respects in which his constitutional rights were violated and shall have attached affidavits or other

evidence supporting his allegations). Given that defendant had counsel at second-stage

proceedings, it is not the responsibility of this court to “infer necessary facts that the defendant has

failed to allege.” People v. Clinton, 2016 IL App (3d) 130737, ¶ 31.

- 32 - No. 1-21-0761

¶ 85 More importantly, even construing defendant’s factual averments in his affidavits as true,

he still fails to make a substantial showing of Strickland prejudice. See Barkes, 399 Ill. App. 3d at

989-90. In them, defendant stated that he informed his trial attorney he had $3000 cash in his

pocket due to owing multiple fines for driving with a suspended license because he went to traffic

court in Markham on the day of his arrest, having also brought proof of insurance. He averred that

the fine was thrown out and that he was basically on his way downtown when police stopped him

and took his money. He claimed he did not go to the hot dog stand, rob anyone, or possess a gun.

Instead, officers grabbed him as he was walking down the street, bringing him to the show-up and

officers then “told the victims they found [the] property on me when they actually found it in an

alley.”

¶ 86 While our task at the second stage of proceedings is not to make factual findings or

credibility determinations (People v. Sanders, 2016 IL 118123, ¶ 42; Domagala, 2013 IL 113688,

¶ 35), we still must decide whether there is a reasonable probability that, but for defense counsel’s

unprofessional errors (here, precluding defendant’s testimony), the outcome of the proceeding

would have been different. See Dupree, 2018 IL 122307, ¶ 44; see also Allen, 2015 IL 113135,

¶ 45 (suggesting the second stage requires a more probing inquiry); Tate, 2012 IL 112214, ¶¶ 21-

22 (same). The majority maintains that Strickland prejudice occurs “ ‘ “even when the chance that

minimally competent counsel would have won an acquittal is ‘significantly less than 50 percent,’

as long as a verdict of not guilty would be reasonable.” ’ ” (Emphasis added). See supra ¶ 61;

People v. Lucious, 2016 IL App (1st) 141127, ¶ 45 (relying on People v. McCarter, 385 Ill. App.

3d 919, 935 (2008)). Notably, this rule emerged from McCarter. In turn, McCarter relied on Miller

v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001), which has long since been vacated. See Miller v.

Anderson, 268 F.3d 485 (7th Cir. 2001).

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¶ 87 Regardless, a reading of Strickland and its progeny reveals the rule to be inaccurate. In

Strickland, our United States Supreme Court wrote: “The result of a proceeding can be rendered

unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown

by a preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S. at 694.

Stated differently, the result of a proceeding can be rendered unreliable even if a defendant fails to

establish that it is more likely than not that his counsel’s errors affected the trial outcome. Yet, the

majority’s holding—that a defendant can demonstrate a reasonable probability that the outcome

would have been different even where that probability is significantly less than 50%—effectively

guts Strickland.

¶ 88 Since McCarter, the Supreme Court has clarified that in assessing Strickland prejudice,

“the question is not whether a court can be certain counsel’s performance had no effect on the

outcome or whether it is possible a reasonable doubt might have been established if counsel acted

differently.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011); see Lewis, 2022 IL 126705, ¶ 46

(same). The Harrington court continued, noting “the difference between Strickland’s prejudice

standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’

[Citation.] The likelihood of a different result must be substantial, not just conceivable.”

Harrington, 562 U.S. at 111-12; People v. Cross, 2021 IL App (4th) 190114, ¶ 93.

¶ 89 Here, given the quantum of evidence and the internal consistency of the evidence offered

against defendant, I do not believe his self-serving statements would have substantially changed

the trial result. Notably, defendant has not offered any evidence corroborating his claim that he

was in the Markham traffic court on the day of his arrest or that his hefty fines of some $3000 had

been dismissed. He likewise failed to identify any inventory receipts, which would presumably

show he had proof of insurance on his person when arrested. The arrest report reveals only that

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cell phones, cash, and a gun were recovered from defendant on his arrest. At the second stage of

proceedings, I would expect this easy-to-acquire evidence to be attached to the petition in

corroboration.

¶ 90 Significantly, defendant’s exculpatory statements are contradicted by four witnesses, who

testified competently and consistently. 4 The two businessmen robbery victims had ample

opportunity to observe defendant. Hangora testified that around 5 p.m. that November day, he

spoke with defendant face-to-face for some two to four minutes at the hot dog stand. Ali stated the

subsequent car ride took 15 to 20 minutes from beginning to end, and he was looking at defendant

during that time. 5 Hangora also looked at defendant’s face during the ensuing robbery, which took

place in a parking lot at 1126 South Clinton Street. As noted, there, defendant pointed a gun at the

two victims while ordering them to place their cell phones (one a Blackberry), the car keys, and

cash (totaling between $2700 to $3000) in the center console. Both reported that defendant was

wearing a baseball cap, gray jacket, and baggy jeans. Ali added that defendant was age 25, dark-

skinned, and 5 feet, 9 inches. Arriving within minutes to this location at 5:40 p.m., police issued

that description over their radio and soon thereafter were informed that a person matching it was

seen running several blocks away on Clinton Street. Officers Stanley and Wenta testified that they

drove northbound on Clinton Street and observed defendant running southbound away from

another police officer in pursuit (Officer Villalobos, beat 130, who did not testify). Officer Stanley

observed that defendant was wearing a baseball cap, a gray jacket, and baggy pants.

4 Several pages from the report of proceedings involving this trial are missing. 5 On direct examination, in response to the State’s question of “how long were you driving in the car with the defendant directing you on where to go,” Ali testified “[a]bout five minutes.” However, on cross-examination, defense counsel asked how long the car ride lasted from when defendant entered until he exited the car, and Ali responded that it was 15 to 20 minutes, during which time Ali was “turning around and looking at” defendant. - 35 - No. 1-21-0761

¶ 91 The officers then testified consistently that defendant kept running down Clinton Street,

turning first into a parking lot to the west, and then north into an alley. Officer Stanley pursued

defendant on foot (getting within 10 to 15 feet of him) while his partner, Officer Wenta, followed

in the police vehicle. The parking lot emptied into an alley, at which point Officer Stanley saw

defendant attempting to throw his gun atop a building, although he missed. 6 Officer Stanley

recovered this loaded silver revolver. Both officers then testified that defendant continued

northbound in the alley but shortly thereafter was detained by Officers Wenta and Villalobos. In

defendant’s pocket, police found a Blackberry cell phone later identified as one of the victim’s and

$2995 matching the denominations described by the victims.

¶ 92 Some 10 minutes after this detention, while defendant sat in the squad car, both victims

identified him as the perpetrator of the robbery, with Hangora noting he was wearing the same

clothing as during the offense. 7 They also identified him in court. As noted, police, with the help

of the fire department, found the other victim’s cell phone atop the same building where defendant

threw his gun. Before the police, the victims identified their property and also the revolver

defendant held in their faces. The victims thus had the opportunity to view defendant, displayed

close attention, provided an accurate description of defendant, and identified both defendant and

his gun, apparently without hesitation and after a very short period. See People v. Ramos, 339 Ill.

6 The majority makes much of the fact that around this time Officer Wenta observed Officer Stanley with his gun drawn, even though Officer Stanley did not testify to this fact. See supra ¶ 62. I note that Officer Stanley was never asked if he drew his gun. Regardless, it makes sense that a police officer who sees a suspect running down a dark alleyway with a gun drawn would draw his own gun. I do not think there is any discrepancy in the two officers’ testimony, when read together. The majority reads other inconsistencies into the trial record, which I do not think exist or are exaggerated. For example, while the majority asserts Officer Stanley did not see defendant for the entire chase, Officer Stanley testified he only lost sight of defendant for one to two seconds. Similarly, while it is unclear from the record whether Officer Wenta chased defendant in his vehicle the entire time or initially in his vehicle and then on foot, he was part of the chase. Officer Wenta saw defendant run into a parking lot and then north in an alley. 7 When challenging the show-up as suggestive, defense counsel asserted that the show-up took place within 10 minutes of the armed robbery. The State agreed, and the parties stipulated to the facts. - 36 - No. 1-21-0761

App. 3d 891, 897-98 (2003) (noting the factors weighed to determine the independent reliability

of an identification). The trial court, after noting defense counsel had “ably represented the

defendant,” found the witnesses “were excellent, every one of them” in what the court considered

“an almost indefensible case.”

¶ 93 Based on the foregoing, I do not believe that defendant’s self-serving, conclusory

statements that he was not the offender, that police took his money, and that they then found the

victims’ property in an alley reasonably would have affected the trial outcome in any significant

degree. See Coleman, 183 Ill. 2d at 400. Defendant’s theory that police planted the evidence on

him cannot overcome the fact that the two disinterested victims identified him as the armed robber.

Thus, my confidence in the outcome of trial is not at all undermined. See Strickland, 466 U.S. at

693. I also disagree with the majority’s insinuation that the victims’ identification of defendant

was in any way invalid. While defendant before trial filed a motion to suppress the show-up

procedure as unduly suggestive and therefore the identifications as unreliable, he lost. He did not

challenge the show-up on direct appeal, and he does not legitimately challenge it now on appeal.

As such, any claim of suggestiveness leading to misidentification should not factor into the

analysis. See Ramos, 339 Ill. App. 3d at 897.

¶ 94 Defendant’s Claim of Ineffectiveness for Failure to Call His Sister

¶ 95 For the reasons above and even taking defendant’s statements in his affidavits as true (a

point we should not even reach, as I have stated), I would find that defendant’s self-serving

allegations are not aided by more conclusory, self-serving allegations by his sister. His sister

averred that she observed defendant carrying lots of money on the morning of his arrest. 8

8 This averment can only be inferred from liberally construing the affidavit. In it, defendant’s sister says she spoke with her brother on the day in question and asked if he “need[ed] all that money Just for some fines.” She stated he left the house around 10:30 a.m. - 37 - No. 1-21-0761

Corroboration on a nondispositive point like that is insufficient to establish Strickland prejudice.

Again, whether defendant had money that morning does not contradict the victims’ identification

of him as the armed robber.

¶ 96 Moreover, in response to the State’s motion to dismiss, postconviction counsel made no

mention of this claim, and defendant’s appellate counsel during oral arguments almost did the

same. When prompted by the court to address the affidavit, appellate counsel stated the sister’s

purported testimony was not “strictly necessary.” We note, like the majority, that the amended

petition is missing a page related to this ineffectiveness claim. However, the burden of providing

this court with a sufficiently complete record is on defendant, and in the absence of that record,

we presume the trial court was correct in its ruling. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92,

394 (1984); People v. Kirkpatrick, 240 Ill. App. 3d 401, 406 (1992).

¶ 97 Conclusion

¶ 98 Last, I wish to note that the majority takes the rule that we must liberally construe a

defendant’s petition to an extreme not contemplated by the Act or case law interpreting it. Liberal

construction is not the equivalent of cobbling together a petition for the defendant’s benefit when

it is defendant’s burden in the first place under the Act and Strickland. Liberal construction does

not excuse the allegations set forth above that are rebutted by the record, not well-pled, conclusory

in nature, or simply legally insufficient. See Domagala, 2013 IL 113688, ¶ 35. Ultimately,

advancing a petition that does not merit further attention to a third-stage evidentiary hearing is a

waste of time and judicial resources, and it disrupts the delicate balance of respecting finality in

criminal proceedings.

¶ 99 I therefore dissent for the aforementioned reasons.

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People v. Rouse, 2022 IL App (1st) 210761

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-21758; the Hon. Nicholas Ford, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Gavin J. Dow, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Retha Stotts, and James Naughton, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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