2021 IL App (1st) 182159-U FIRST DISTRICT, FIRST DIVISION September 7, 2021
No. 1-18-2159
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 JUDICIAL DISTRICT _____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County, Illinois. ) v. ) No. 07 CR 12593 ) BOBBY SELVIE, ) Honorable ) Timothy Joseph Joyce, Petitioner-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Pierce concurred in the judgment.
ORDER
¶1 Held: (1) Postconviction petitioner did not make a substantial showing of actual innocence. (2) Petitioner’s trial counsel was not ineffective for failing to call petitioner’s mother as an alibi witness where it was a reasonable strategic decision. (3) Postconviction counsel was not ineffective for failing to seek resentencing where such claim would not have been meritorious.
¶2 Following a jury trial, defendant Bobby Selvie was convicted of aggravated battery with
a firearm of a peace officer in connection with the May 14, 2007 shooting of Detective Patrick
Johnson. Defendant was sentenced to 60 years’ imprisonment. In 2015, defendant filed a No. 1-18-2159
postconviction petition alleging (1) actual innocence and (2) ineffective assistance of trial
counsel for failing to call his mother, Annie Blount, to testify on his behalf. In this appeal,
defendant challenges the second-stage dismissal of his petition. He also alleges that he is entitled
to a new sentencing hearing because the trial court relied on a 2001 conviction for aggravated
unlawful use of a weapon (AUUW) that was rendered void by People v. Aguilar, 2013 IL
112116, at the original sentencing hearing. For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 While Detective Johnson was on patrol in the early morning hours of May 14, 2007, he
was shot in the back. Defendant and Richard Butler were charged in the shooting. Butler reached
an agreement with the State where, in exchange for his “honest” testimony at defendant’s trial,
he was allowed to plead guilty to unlawful use of a weapon for 10 years’ imprisonment.
¶5 Defendant’s Jury Trial
¶6 The pertinent evidence introduced at defendant’s jury trial follows.
¶7 At around 12:45 a.m. on May 14, 2007, Johnson and his partner, Anthony Amato, were
on patrol in the 800 block of west 50th Place. Johnson drove south on Peoria, approaching 50th
Place. As he did so, he could see three men on the porch of the house at 852 West 50th Place, a
house he knew was owned by defendant’s family (the Selvie house). There was also a fourth
man, Lester Spruille, standing on the sidewalk in front of the house.
¶8 As their vehicle approached the Selvie house, one of the men on the porch went inside,
and Spruille began walking east, away from the house. Johnson drove slowly alongside him.
Five houses down, Spruille began fumbling with the latch on a house gate. Johnson believed he
was only pretending to have a key, so he parked and the officers exited the car. Spruille fled
-2- No. 1-18-2159
west, back toward the Selvie house, and Johnson gave chase on foot. Amato initially joined the
foot chase, then realized he was not going to catch up and went back to get the car.
¶9 As Johnson chased Spruille past the Selvie house, he looked at the porch and saw
defendant standing halfway up the steps from approximately six or seven feet away. There was a
streetlight across the street, and Johnson had no difficulty seeing defendant, whom he knew to be
a member of the 50 Strong faction of the Gangster Disciples. “[H]e knew [defendant] from
conducting field interviews in the neighborhood, had direct contact with him six to eight times a
year, and saw him in the neighborhood on a regular basis.” People v. Selvie, 2013 IL App (1st)
112689-U, ¶ 14. Johnson did not get a good look at the other person he saw standing behind
defendant.
¶ 10 Spruille continued running through a vacant lot adjacent to the Selvie house and into an
alleyway. As Johnson neared the end of the lot, he heard a very loud gunshot behind him.
Johnson was hit in the lower back and fell to the ground from the impact. Spruille turned around
at the sound of the gunshot, then continued running. Johnson turned back toward the Selvie
house, where he believed the gunshot had come from, but defendant was no longer there and
Johnson did not see anyone in the immediate area.
¶ 11 Within several minutes, backup officers and an ambulance arrived. The officers secured
the occupants of the Selvie house, including defendant, Butler, and Calvin Mitchell. Police
searched the house and recovered two handguns, a Ruger and a Llama, from a crawl space over
the second-floor back porch. A fired cartridge case was recovered from the vacant lot around 8 to
10 feet from the porch of the Selvie house, and ballistics testing showed that it had been fired
from the Ruger. Defendant’s fingerprints were found on the Llama and on a magazine that fit the
-3- No. 1-18-2159
Ruger; Butler’s fingerprints were found on the same magazine. No prints were found on the
Ruger.
¶ 12 Butler testified that on the evening of May 13, 2007, he and defendant, who were
members of the 50 Strong faction of the Gangster Disciples, were acting as security for a gang
drug operation at the Selvie house. Butler retrieved two loaded .45-caliber handguns from his
home, a Ruger and a Llama, and gave the Ruger to defendant. Shortly before 1 a.m., Mitchell
and defendant’s cousin Jeffrey Selvie arrived at the house while they were standing guard on the
porch. Jeffrey went inside and Mitchell remained on the porch. Butler then noticed an unmarked
squad car driving up Peoria Street and told defendant to get inside because police were coming.
Butler and defendant went inside, but Mitchell remained outside.
¶ 13 Butler sat on the stairs just inside the door and looked out the front door window. Around
30 seconds later, he saw someone in a black hoodie run past the house, followed by a police
officer. As the officer ran by, defendant went outside onto the porch. Seconds later, Butler heard
a gunshot. Because the gunshot was so loud, he believed it came from the porch. Defendant then
came back inside the house, holding the Ruger.
¶ 14 Butler further testified that upon reentering the house, defendant went up to the second
floor and told Butler to give him the Llama. Butler complied. Defendant took both guns to the
back of the apartment and returned five minutes later without them. He told Butler two or three
times that he had “fucked up.”
¶ 15 The day after the shooting, Amato viewed a lineup and identified defendant as one of the
people he saw on the Selvie house porch before the shooting. He also identified Butler, although
he was less certain about that identification. Later that day, Detective Ford went to the hospital
-4- No. 1-18-2159
and showed Johnson a photo array. Johnson positively identified defendant. He also identified
Butler as one of the men he initially saw on the porch, but he was not 100% certain.
¶ 16 Defendant called no witnesses at trial and did not testify on his own behalf. He was
acquitted of attempted murder of a peace officer and convicted of aggravated battery with a
firearm of a peace officer. The trial court sentenced him to 60 years’ imprisonment. On direct
appeal, we affirmed defendant’s conviction and sentence. Selvie, 2013 IL App (1st) 112689-U.
¶ 17 Postconviction Proceedings
¶ 18 On September 21, 2015, defendant filed the instant postconviction petition. As amended,
his petition sought relief on the basis of actual innocence and ineffective assistance of trial
counsel for not calling defendant’s mother to testify at trial. In support, he attached his own
affidavit, Kiar Brown’s affidavit, and Blount’s affidavit.
¶ 19 In his affidavit, defendant stated that on the night of the shooting, he and Butler were
drinking and watching the NBA playoffs. He fell asleep on the couch but was awoken by his
mother, who told him that there had been a shooting outside. He looked out the window at the
vacant lot and saw police standing around a person lying on the ground. A few minutes later, his
friend Mitchell knocked on the door, and defendant let him in. Mitchell said that he “just
knocked at” someone who was “running past with a banger.” Defendant asked him where his
gun was, and Mitchell produced a .45 Ruger. Butler wiped it off and defendant put it “on the
roof.” In the morning, police kicked in the door of his house and arrested defendant, Mitchell,
Butler, and defendant’s sister, nephew, and cousins. Defendant believed that Mitchell made a
statement against him to police, but he refused to implicate Mitchell because he “wasn’t raised or
brought up like that.”
-5- No. 1-18-2159
¶ 20 Defendant further stated that his trial lawyer “felt [the State] didn’t prove this case” and
did not call any witnesses on his behalf. He further averred that counsel “failed to interview key
witness[es] in this case. He didn’t call my mother, sister, nephew or little cousins as witness[es].
His mindset was my co-defendant’s testimony hurt their case and we didn’t need to call
anybody.”
¶ 21 Brown, in his affidavit dated February 19, 2018, stated that in 2007, he was a member of
the Gangster Disciples. On May 13, 2007, as he was walking home from the store, he saw
Mitchell and someone named Adam on the corner of the 800 block of West 50th Place, “doing
security” because of an ongoing gang war with the Black Stones. He stopped to greet them and
asked Mitchell if he had “heat”; Mitchell showed him a black-and-silver gun.
¶ 22 As Brown chatted with Mitchell, Jeffrey arrived and went into the Selvie house. Brown
decided to head home. While crossing the street, he heard Mitchell say, “Who dat[?]” Brown
turned in the direction Mitchell was facing. He saw “a dark figure” and then saw Mitchell raise
his gun. Brown ran for home. As he ran, he heard a gunshot and then sirens in the distance.
¶ 23 The next day, Brown’s grandmother told him that the Selvie house was on the news
because an officer had been shot. Brown later learned that defendant had been charged in the
shooting. However, he never saw defendant on the scene before or after the shooting; he only
saw Mitchell, Adam, and Jeffrey. He did not come forward with this information at the time
because it was gang law never to talk to the police, and he did not want to be “violated” or
labeled a snitch for breaking the code of silence. Brown later stopped being an active gang
member and decided to help clear defendant’s name.
¶ 24 Blount, in her affidavit, stated that on the night of the shooting, defendant and Butler
were together in defendant’s room, playing video games or watching television. Mitchell
-6- No. 1-18-2159
knocked at the door and asked to speak with defendant. Blount “guess[ed]” that he wanted to tell
defendant about “a shooting or something” outside their house. The next morning, police kicked
in the door of the house and arrested her, defendant, and Butler. Defendant and Butler were
accused of shooting a police officer, but Blount knew they were innocent because they were at
home with her. She affirmatively stated that defendant was not outside at the time of the
shooting.
¶ 25 Blount further stated that in May, “they did a D.N.A. or residue of gunfire or whatever
it’s called” on defendant and did not find anything connecting him to the shooting. Defendant’s
lawyer called Blount and told her that defendant was “cleared” and that “everything should be
good.” However, at a later court date, she overheard a conversation between Butler’s lawyer,
Butler’s sister, and Butler’s mother in which the lawyer told them to convince Butler to falsely
accuse defendant of being the shooter so that Butler could get out of jail. Butler did, in fact,
testify against defendant at trial; Blount, who attended the trial, was shocked that he would lie
about her son, his supposed friend.
¶ 26 The circuit court advanced defendant’s petition to the second stage of postconviction
proceedings, and the State moved to dismiss the petition. In dismissing the petition, the court
found that Brown’s statement did not constitute newly discovered evidence because his claim
that he was afraid to come forward was “beyond generic,” and it was not conclusive evidence of
innocence because Brown did not claim he saw the actual shooting but only saw Mitchell raise
his gun. The court also found that defendant was not prejudiced by his mother’s failure to testify
because she placed him at the house at the time of the shooting, which meant that he would have
had “every opportunity” to commit the crime if he chose to do so.
-7- No. 1-18-2159
¶ 27 ANALYSIS
¶ 28 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) enables
criminal defendants to challenge their convictions on constitutional or actual innocence grounds.
People v. Domagala, 2013 IL 113688, ¶ 32; People v. Coleman, 2013 IL 113307, ¶ 94. At the
second stage of postconviction proceedings, the defendant must make a “substantial showing” of
a constitutional violation. (Internal quotation marks omitted.) Domagala, 2013 IL 113688, ¶ 33.
We review the second-stage dismissal of defendant’s petition de novo (People v. Pendleton, 223
Ill. 2d 458, 473 (2006)), accepting as true all factual allegations that are not positively rebutted
by the record (People v. Johnson, 2017 IL 120310, ¶ 14).
¶ 29 Actual Innocence
¶ 30 Defendant first argues that he made a substantial showing of actual innocence based on
Brown’s affidavit. To prevail on an actual innocence claim, “the defendant must present new,
material, noncumulative evidence that is so conclusive it would probably change the result on
retrial.” Coleman, 2013 IL 113307, ¶ 96 (citing People v. Washington, 171 Ill. 2d 475, 489
(1996)). As our supreme court explained in Coleman:
“New means the evidence was discovered after trial and could not have been discovered
earlier through the exercise of due diligence. [Citation.] Material means the evidence is
relevant and probative of the petitioner’s innocence. [Citation.] Noncumulative means the
evidence adds to what the jury heard. [Citation.] And conclusive means the evidence,
when considered along with the trial evidence, would probably lead to a different result.”
Id.
-8- No. 1-18-2159
See also People v. Robinson, 2020 IL 123849, ¶¶ 55-56 (evidence is material to an actual
innocence claim if it tends to significantly advance that claim and “need not be entirely
dispositive to be likely to alter the result on retrial”).
¶ 31 The materiality of Brown’s affidavit is questionable. Trial testimony established that
Johnson was shot on May 14, 2007 at around 1 a.m., moments after chasing Spruille on foot past
the Selvie house. Brown’s encounter with Mitchell occurred on “May 13, 2007,” and Brown did
not provide a timeframe. More importantly, although Brown was chatting with Mitchell outside
the Selvie house, he did not claim to see a chase. “I only saw a dark figure,” he stated. He ran at
the sight of Mitchell raising his gun, and although he heard a gunshot, he did not look back to see
if the “dark figure” or anyone else was hit. Without more detail, it would be speculative to
assume that the gunshot he heard is the one that struck Johnson.
¶ 32 Even assuming arguendo that Brown’s affidavit refers to the same gunshot that struck
Johnson, his account is not so conclusive that it would likely lead to a different result at trial,
because it is consistent with the State’s evidence of defendant’s guilt. According to Butler,
defendant went inside when he saw Johnson’s squad car approaching and remained inside until
seconds before the shooting. Thus, taking Brown’s affidavit as true (see Johnson, 2017 IL
120310, ¶ 14), the following timeline of events is entirely plausible: (1) At the sight of Johnson’s
car, defendant and Butler retreated into the house, while Mitchell remained outside. (2) Brown
arrived on the scene and greeted Mitchell. (3) Brown saw a “dark figure” (either Spruille or
Johnson) approaching and fled. (4) After Spruille and Johnson ran past the porch, defendant
stepped outside and, seconds later, shot Johnson. Notably, Brown did not see the actual shooting
and did not look back after he heard the gunshot to see who was outside. Under these facts, his
-9- No. 1-18-2159
testimony, when considered along with the trial evidence, would likely not lead to a different
result on retrial. See Coleman, 2013 IL 113307, ¶ 96.
¶ 33 Ineffective Assistance of Trial Counsel
¶ 34 Defendant next argues that his trial counsel was ineffective for not calling his mother to
testify that he was inside when the shooting occurred.
¶ 35 Initially, the State argues that this claim is waived because defendant failed to raise it on
direct appeal. Although issues that could have been, but were not, raised on direct appeal are
deemed waived (People v. Coleman, 206 Ill. 2d 261, 277 (2002)), waiver does not preclude
consideration of issues based on facts not found in the trial record. People v. Veach, 2017 IL
120649, ¶ 47. Since Blount’s proffered testimony does not appear in the trial record, the issue is
not waived. See People v. Tate, 2012 IL 112214, ¶ 15 (petitioner’s claim that trial counsel was
ineffective for failing to call witnesses was not procedurally defaulted, since “[a]s a result of
counsel’s allegedly deficient representation, the contents of [the witnesses’] affidavits could not
have been included in the record”).
¶ 36 To prove ineffective assistance of counsel, a defendant must show that (1) counsel’s
performance was objectively unreasonable and (2) defendant was thereby prejudiced. People v.
Patterson, 2014 IL 115102, ¶ 81 (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)).
Defendant must overcome a “strong presumption” that his lawyer’s conduct constitutes sound
trial strategy and falls within the wide range of reasonable professional assistance. Strickland,
466 U.S. at 689. “Strategic choices made by counsel after having made a thorough investigation
are ‘virtually unchallengeable.’ ” People v. Williams, 2017 IL App (1st) 152021, ¶ 38 (quoting
People v. Towns, 182 Ill. 2d 491, 514 (1998)). Decisions about which witnesses to call are
matters of trial strategy (id.), and “defense counsel need not call a witness if he reasonably
-10- No. 1-18-2159
believes that under the circumstances the individual’s testimony is unreliable or would likely
have been harmful to the defendant.” People v. Flores, 128 Ill. 2d 66, 106 (1989)).
¶ 37 Here, defendant’s affidavit establishes that his trial counsel chose to strategically pursue a
reasonable doubt line of defense instead of calling Blount as an alibi witness. Counsel’s decision
was not objectively unreasonable. Weak alibi testimony can hurt a defendant’s case. Williams,
2017 IL App (1st) 152021, ¶ 40 (citing United States v. Guillette, 547 F.2d 743, 752 (2d Cir.
1976) (recognizing “a danger likely to arise when jurors, untrained in the law, disbelieve alibi
testimony and are inclined to view the failure of the defense as a sign of the defendant’s guilt”)).
Since Blount was defendant’s mother, her testimony would likely have carried little weight with
the jury. Although Blount vaguely asserted that defendant was inside when Johnson was shot,
she did not explain how she was aware of defendant’s exact location at that time. In addition, she
did not claim to have heard or seen the shooting; she only “guess[ed]” that Mitchell told
defendant about “a shooting or something.” Under these facts, her testimony would arguably
have corroborated Butler’s testimony that defendant was at the Selvie house at the time of the
¶ 38 People v. Upshaw, 2017 IL App (1st) 151405, on which defendant relies, is
distinguishable. In Upshaw, shots were fired at two officers conducting surveillance in the early
hours of the morning. Neither officer could identify anyone involved in the shooting, but
information from a confidential informant led to defendant’s arrest. After 28 ½ hours in police
custody, defendant confessed to the shooting and was convicted of attempted murder. Id. ¶¶ 5-6.
¶ 39 In a postconviction petition, defendant alleged that his trial counsel was ineffective for
failing to investigate and call Tyrone White as an alibi witness. Defendant had told his trial
counsel that he was with White at White’s house at the time of the shooting and provided
-11- No. 1-18-2159
White’s contact information, but counsel never contacted White. White attested to this alibi in an
affidavit, stating that he left the house at around 2 a.m. and saw defendant asleep on the couch.
We found that defendant had made a substantial showing of deficient performance, since “[t]he
record suggests no strategic reason that counsel may have decided not to investigate
[defendant’s] alibi or not to even interview Mr. White.” Id. ¶ 40.
¶ 40 In contrast, as discussed, there are a number of strategic reasons why defendant’s counsel
may have decided not to call defendant’s mother to the stand in this case. Accordingly, defendant
has not made a substantial showing that counsel’s performance was objectively unreasonable
under Strickland.
¶ 41 2001 AUUW Conviction and Sentencing
¶ 42 For the first time on appeal, defendant argues that we should vacate his 2001 conviction
for AUUW ((720 ILCS 24-1.6(a)(2) and (3)(a) (2001)) in case number 01 CR 29381 as
unconstitutional under Aguilar, 2015 IL 117387, ¶¶ 15-22. In general, a claim not raised in a
postconviction petition is forfeited and cannot be raised for the first time on appeal. 735 ILCS
5/122-3 (West 2016); see also Pendleton, 223 Ill. 2d at 475. However, defendant’s 2001 AUUW
conviction was based on a facially unconstitutional statute and is therefore void ab initio. In re
N.G., 2018 IL 121939, ¶ 57. A void order may be attacked at any time in any court, and such
challenges are not subject to forfeiture. Id. (respondent was permitted to collaterally attack
constitutionally invalid AUUW conviction on appeal). Accordingly, we vacate defendant’s
conviction for AUUW in case number 01 CR 29381.
¶ 43 Defendant also argues for the first time that he is entitled to a new sentencing hearing
because the trial court improperly relied on his void 2001 conviction in rendering sentence. See
id. ¶ 74 (any conviction based on a facially unconstitutional statute cannot be used against a
-12- No. 1-18-2159
defendant in a subsequent proceeding). This claim is plainly forfeited. Pendleton, 223 Ill. 2d at
475. Defendant nevertheless argues that his postconviction counsel was ineffective for failing to
raise the issue below and asks us to remand for further second-stage proceedings on this issue.
¶ 44 A petitioner has no constitutional right to effective assistance of counsel in
postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); People v. Greer,
212 Ill. 2d 192, 203 (2004). The Act guarantees “reasonable” assistance of counsel (People v.
Hardin, 217 Ill. 2d 289, 299 (2005)), which is “less than that afforded by the federal or state
constitutions” (Pendleton, 223 Ill. 2d at 472) and is not governed by the Strickland two-part test
(People v. McNeal, 194 Ill. 2d 135, 142 (2000)).
¶ 45 When the trial court considers an improper factor in sentencing, we will remand for
resentencing if we cannot determine the weight the trial court placed on the improper factor.
People v. Minter, 2015 IL App (1st) 120958, ¶ 152. If it is apparent from the record that the trial
court placed “minimal emphasis” upon the factor, resentencing is not required. Id. Here, the trial
court mentioned defendant’s 2001 AUUW conviction in the context of discussing his prior
criminal history, which also included convictions for burglary, retail theft, unlawful use of a
weapon by a felon, and aggravated driving under the influence. However, in imposing the
sentence, the court primarily relied on the nature of the crime. As the court stated, “I simply
cannot envision some circumstance where an individual will be justified shooting at a police
officer, let alone shooting at a police officer who was running away from him and doesn’t see it
coming.”
¶ 46 This case is analogous to People v. Ware, 2014 IL App (1st) 120485, in which we
rejected defendant’s claim that he was entitled to resentencing because two of his prior
convictions were void under Aguilar. We observed that the trial court placed “little emphasis” on
-13- No. 1-18-2159
the AUUW convictions. Id. ¶ 36 (citing People v. Burge, 254 Ill. App. 3d 85, 91 (1993) (“When
the weight placed on an improperly considered aggravating factor is so insignificant that it did
not lead to a greater sentence, a remand for resentencing is not required.”)). Likewise, since the
trial court placed “little emphasis” on defendant’s 2001 AUUW conviction in this case,
postconviction counsel was not ineffective and defendant is not entitled to a new sentencing
hearing.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we affirm the judgment of the trial court dismissing
defendant’s second-stage postconviction petition. We also vacate defendant’s conviction for
AUUW in case number 01 CR 29381 as void under Aguilar.
¶ 49 Affirmed.
-14-