People v. Tyler

2026 IL App (5th) 240127-U

• Court: Appellate Court of Illinois
• Decided: March 24, 2026
• Docket: 5-24-0127
• Status: Unpublished

Opinion

NOTICE 2026 IL App (5th) 240127-U NOTICE Decision filed 03/24/26. The This order was filed under text of this decision may be NO. 5-24-0127 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 16-CF-117 ) TRAVIS T. TYLER, ) Honorable ) Michael A. Fiello, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE HACKETT * delivered the judgment of the court. Justices Barberis and Clarke ** concurred in the judgment.

ORDER

¶1 Held: The trial court’s dismissal of the defendant’s post-conviction petition at the second stage of proceedings under the Post-Conviction Hearing Act is affirmed where the defendant failed to make a substantial showing of his actual innocence claim, and the defendant was not denied his right to reasonable assistance of postconviction counsel.

¶2 Following a jury trial, the defendant, Travis Tyler, was convicted of one count of first

degree murder (720 ILCS 5/9-1(a)(3) (West 2016)), one count of aggravated battery with a firearm

(id. § 12-3.05(e)(1)), and two counts of aggravated discharge of a firearm (id. § 24-1.2(a)(1)). The

jury also found that, during the commission of the murder, the defendant personally discharged a

* Justice Welch was originally assigned to the panel. After the death of Justice Welch, Justice Hackett was substituted on the panel and has read the briefs. ** Justice Moore was originally assigned to the panel prior to his retirement. Justice Clarke was substituted on the panel and has read the briefs. 1 firearm that proximately caused great bodily harm to another person. The trial court sentenced the

defendant to a total of 85 years’ imprisonment by including a mandatory firearm enhancement and

ordering consecutive sentences on all four counts. Thereafter, the trial court vacated the

defendant’s convictions for aggravated battery with a firearm and aggravated discharge of a

firearm, leaving the defendant with a 60-year total sentence, which included a 35-year sentence

for first degree murder and the 25-year mandatory firearm enhancement.

¶3 On direct appeal, the defendant argued, inter alia, that he received ineffective assistance of

trial counsel where his counsel failed to call certain witnesses who would have corroborated his

claim of self-defense and failed to offer a jury instruction on the defense of others or on justified

use of force. See People v. Tyler, 2021 IL App (5th) 180476-U. This court affirmed the defendant’s

conviction and sentence on direct appeal. See id.

¶4 In his postconviction petition, the defendant argued a claim of actual innocence and

ineffective assistance of trial counsel for failing to call certain witnesses and failing to propose

certain jury instructions. On December 29, 2023, the trial court dismissed the defendant’s

postconviction petition at the second stage of hearings under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2022)), finding that the defendant’s claims regarding

ineffective assistance of trial counsel were barred either by res judicata or forfeiture, and that the

defendant had failed to make a substantial showing of actual innocence. The defendant appeals,

claiming (1) that he made a substantial showing of actual innocence and (2) that postconviction

counsel failed to provide reasonable assistance, as required by Illinois Supreme Court Rule 651(c)

(eff. July 1, 2017), where counsel did not file a Rule 651(c) certificate. For the following reasons,

we affirm.

2 ¶5 I. BACKGROUND

¶6 The defendant’s conviction and sentence were previously affirmed on direct appeal. See

People v. Tyler, 2021 IL App (5th) 180476-U. Because the facts underlying the defendant’s

conviction were set forth in detail in that order, we recount here only those facts necessary to

understand and resolve the issues raised in this postconviction appeal.

¶7 On March 26, 2016, the defendant, who was a student at Southeast Missouri State

University (SEMO), traveled with his cousin, Anthony Griffin, and his cousin’s friend, Calvin

White, from Cape Girardeau, Missouri, to Carbondale, Illinois. They planned to attend a “probate

party” for the Phi Beta Sigma fraternity at Hangar 9 (a nightclub in Carbondale). At around 2 a.m.

on March 27, the trio left Hangar 9 and went to an after party at the “Sigma House,” a house

located on West Walnut Street. While there, a physical fight broke out in the living room, and

gunshots were fired inside the overcrowded house. Shortly after that, gunshots were fired outside

the house, resulting in the injury of Nehemiah Greenlee, a fellow partygoer, and the death of

Timothy Beaty, a neighbor who was killed when a stray bullet pierced his apartment wall. The

defendant and his codefendant, John Ingram, were subsequently arrested and charged for the

shooting.

¶8 Prior to trial, on May 9, 2017, the defendant filed a request for the trial court to issue a

certification to secure the attendance of Destiny Leonard from out of state to testify at the

defendant’s trial. The trial court issued the certification that same day. On March 5, 2018, the

defendant filed a motion to endorse witnesses, notifying the State that Leonard was among the

witnesses that could be called to testify at the defendant’s trial. At a pretrial hearing on March 16,

2018, the State mentioned that it had “sent out-of-state subpoena applications to the State of

Missouri under the Uniform Act on a number of occasions” and that there were “a number of

3 witnesses that [had] not been served in this case and *** [were] clearly ducking service.” The

defendant’s trial attorney also noted that John Ingram, the defendant’s codefendant, had since

“entered into an agreement with the State’s Attorney’s Office.” The State confirmed that, under

that agreement, “Ingram [was] obligated to testify on behalf of the State” against the defendant at

the defendant’s trial.

¶9 During the trial, which ran from March 19, 2018, to March 27, 2018, the following facts

relevant to this appeal were adduced. The defendant was represented at trial by two private

attorneys. 1

¶ 10 Jeffrey Withrow, an officer with the Carbondale Police Department who was dispatched to

the shooting location, testified that he assisted other officers in canvassing the area to locate

witnesses and evidence. As he approached 334 West Walnut, he noticed a bullet strike mark on

the south side of an apartment. He first attempted to contact the residents by knocking on the door.

When he did not receive a response, he looked through the window at the top of the door and

noticed a man lying on the floor. Withrow opened the unlocked door and entered the residence.

Withrow noticed that the man was pale, his eyes and mouth were both open, and he did not appear

to be breathing. Withrow checked for a pulse and realized that the man was deceased. The man

was identified as Beaty.

¶ 11 James Minckler, a crime scene investigator with the Illinois State Police, testified that he

was called in to process the scene at 334 West Walnut. Beaty had a gunshot wound through his

right rib cage, and no exit wound. Minckler searched the apartment for the origin of the bullet and

discovered a hole in the corner of the wall in the main room, which appeared to lead outside. He

1 For purposes of clarity, we will refer to both attorneys throughout this appeal as the defendant’s “trial counsel.” 4 went outside and saw a hole in the metal siding on the corresponding exterior wall. Using a

trajectory rod with an attached laser, he determined that the bullet originated from across the street

in the South Beveridge Street area, which was just south of West Walnut. Thomas Gamboe, an

Illinois State Police (ISP) forensic scientist, testified that the projectile recovered from Beaty was

a .40 caliber bullet fired from the same gun that fired two other bullets found around West Walnut.

James Jacobi, a forensic pathologist, testified that he performed Beaty’s autopsy, and confirmed

that Beaty died by gunshot wound.

¶ 12 Besides Withrow, several officers were dispatched to the Sigma house area for the

shooting. One of these officers was ISP trooper Blake Harsy, who testified that, at the Sigma house,

he observed a loaded chrome handgun magazine on the floor near a brick fireplace, as well as a

live .40 caliber cartridge on the fireplace ledge.

¶ 13 Lee Stewart, a Carbondale Police Department patrol detective who was a crime scene

technician at the time of the shooting, also testified that he was dispatched to the Sigma house for

the shooting. After the house was secure, he went to other locations in the area to search for

evidence and preserve the crime scene. In the intersection of West Walnut Street and South

Beveridge, he found eight spent .40 caliber Smith & Wesson R-P shell casings, seven 9-millimeter

Corbon Ruger shell casings, and one live .40 caliber shell casing. After discovering the shell

casings, Stewart expanded the search area to include the yards between 402 and 334 West Walnut.

In this area, Stewart found a black and silver Smith & Wesson .40 caliber magazine loaded with

14 rounds. He also found a spent .40 caliber Winchester shell casing in front of 322 West Walnut

(east of the Sigma house, on the north side of the road) which was different from the others

previously found. He acknowledged that before officers were able to secure the area, people had

been running and driving through there, and consequently, some of the shell casings could have

5 been kicked, walked on, or driven over. Stewart admitted that he had not searched by the church

or along the church wall.

¶ 14 Seth Moorman, an officer with the Carbondale Police Department, was also dispatched to

the 402 West Walnut Street area. After the initial response, Moorman returned later that morning

to assist with the search warrant. Moorman “stayed specifically *** in 402 West Walnut” and did

not canvass elsewhere for evidence. Kevin Geissler, a Sergeant with the Carbondale Police

Department, was another officer involved in the shooting investigation. Geissler testified that,

although he investigated claims that individuals on the north side of the street were holding

firearms during the shooting, he was unable to find any evidence corroborating those claims.

¶ 15 During a sidebar conversation abruptly taken in the middle of Sergeant Geissler’s redirect

examination, the State accused defense counsel of attempting to “back door” introduce into

evidence hearsay statements of witnesses they knew had not been able to be served with subpoenas,

and would therefore not be testifying at trial, by asking testifying officers whether they had ever

spoken with those unserved witnesses. In particular, the State commented that defense counsel

knew “that the State tried to serve Destiny Leonard on multiple occasions[,]” that the State had

great difficulty coordinating with Missouri courts and serving Missouri witnesses, and that the

State was ultimately “unable to secure at least 16 people from the State of Missouri.” The trial

court ruled that while defense counsel could ask about steps officers took during the investigation,

the court would sustain hearsay objections to testimony detailing unavailable witnesses’

statements.

¶ 16 Jesse Ital, an officer with the Carbondale Police Department, testified that, on March 30,

2016, he went to the St. Francis Xavier Church to search for evidence related to the shooting. The

church was within the 400 block of West Walnut. He had been instructed to search the area for

6 ballistic or ammunition evidence based on information obtained from a witness. Officer Ital and

another officer spent 30 minutes to one hour searching for evidence in the church’s flower garden

area, and at the walls of the church buildings. Approximately five feet up on one of those walls,

Officer Ital observed a discoloration in the grout between two of the bricks, which, based on his

experience as a police officer, he believed to be a bullet strike. Standing on the sidewalk, about

eight feet back from the wall, he also discovered a bullet at his feet. Officer Ital believed the bullet

had not been found until March 30, 2016, three days after the incident, because it looked like a

divot in the concrete. He acknowledged that his department could have missed other markings and

bullets in that area. He noted that there was no way to tell where the bullet came from but

acknowledged that it could have come from 334 or 402 West Walnut.

¶ 17 Dominique White, a student who had attended the Sigma party, testified that after the initial

shooting inside the Sigma house, she and her friend attempted to run toward the back exit of the

house, but eventually left with a crowd of people through the front door. White had only been

outside for a couple seconds when she heard approximately four to five gunshots. She instinctively

looked to where the sound of the shooting was and saw someone in a black outfit shooting from

the crowd across the street from the Sigma House. White admitted that she did not know what had

been going on outside before she walked out of the Sigma House’s front door, and that although

she did not see anyone shooting on the north side of West Walnut (the Sigma House side of the

street), she did not know too much about what was happening on the north side because she was

looking toward the south side of the street.

¶ 18 Officer Rebecca Mooney, a crime scene specialist with the Carbondale Police Department,

searched the 300 and 400 block of West Walnut Street just after the shooting. She testified that she

and other officers found and properly collected shell casings and one live round from South

7 Beveridge, a Smith & Wesson magazine and a live round of ammunition from 402 West Walnut,

a Smith & Wesson magazine with some live rounds inside it from the grass between 402 and 334

West Walnut, and a spent .40 caliber Winchester shell casing from the sidewalk in front of 322

West Walnut. Mooney admitted that “things could [have been] kicked [or] pushed,” and that she

“couldn’t be certain” from the ballistic evidence found on South Beveridge Street that the shooter

there was not moving around.

¶ 19 Anthony Williams, a sergeant with the Carbondale Police Department, acknowledged that

he never asked any witnesses about the bullet strike on the church wall or about whether there was

gunfire going in the direction of the church, although he did ask them generally about the shooting

they had observed that night. However, he explained that the fact that there was a bullet strike on

the church wall did not necessarily conflict with the information that he had obtained from

witnesses. He explained that he was not surprised that none of them saw the bullet strike the

church, because there was a lot going on that night.

¶ 20 Brandon Weisenberger, a detective with the Carbondale Police Department, acknowledged

that no witness told him that gunfire was going south, away from the Sigma house, and testified

that he did not believe that anyone from his office talked with witnesses about the evidence

obtained from the church area. Detective Weisenberger also acknowledged that the bullet from the

church area was the first evidence collected indicating that gunfire had been directed south. He

explained that the evidence indicated that there was a spray of gunfire going in multiple directions.

¶ 21 Joshua Bell, Greenlee’s friend and a student at Southern Illinois University-Carbondale

(SIU) in March 2016 testified that he attended the Sigma House party. After gunshots broke out in

the house, Bell ran out the back door and toward the front of the house, where he heard more

shooting coming from across the street. Bell saw two individuals shooting and identified one of

8 them as the defendant. He testified that the defendant shot approximately five times toward the

Sigma House from across the street. Bell could not clearly see or identify the other shooter. Bell

testified that “less than two minutes” had passed between the shooting inside the house and the

shooting outside. When police arrived, Bell pointed them toward the group of people gathered on

the church parking lot, since he believed they were “involved with the shooting.” Bell denied ever

seeing his friend, Greenlee, having or shooting a gun that night.

¶ 22 Anthony Jones, a friend of Greenlee and Bell, and a student at SIU in March 2016 testified

that, after the shooting inside the house, everyone scattered and started running out. As the house

started to empty out through the back door, Jones stood by the front door with Greenlee. Two

individuals, one of them being the defendant and the other being a Cardinals-hoodie-wearing

individual, approached Jones and Greenlee and told them to open the door. Jones told them to go

through the back door but eventually opened the front door for them. The man in the Cardinals

hoodie turned around and ran out the back door, but the defendant exited out the front door,

pushing into Jones’s left shoulder. Jones shrugged this off, but Greenlee confronted the defendant,

told him that there was no need for pushing, and then pushed him in return. The defendant and

Greenlee then got into a verbal argument on the porch and indicated that they would fight. When

Jones got between them, the defendant pulled toward his waist and displayed the handle of a gun.

The defendant said that he was going to kill Jones and Greenlee, and Jones told him to put the gun

down and fight. In the scuffle, Jones and Greenlee ended up in the yard between the Sigma house

and 334 West Walnut. The defendant ran away down South Beveridge.

¶ 23 About five seconds later, the defendant came back with another individual, and Jones heard

shots. The defendant was in the street when this occurred. At first, the shots were fired toward the

street. Then Jones noticed that the subsequent shots were angled toward him and Greenlee, and

9 that some of them were in the air. The shots were coming from the defendant’s gun. Although the

individual with the defendant was also shooting, Jones did not get a good look at that person

because he was solely focused on the defendant. Jones froze for about five seconds and then felt

Greenlee push him. He turned around and saw Greenlee lying on the ground. Greenlee then got up

and went back inside the Sigma house. The defendant and the other individual ran off. Jones

testified that neither he nor Greenlee had a gun that night or shot at anyone. He acknowledged that,

in his March 27 statement, he wrote that, during the party, he had to kick out a group of people

who were fighting inside the house, and they went around the side of the house and started

shooting. Then, they reentered through the back. However, he denied writing that the individuals

started shooting at the side of the residence, and instead claimed that he had to kick them out,

people started running out of the house, and he heard gunshots. This occurred after gunshots were

fired inside the house, and the defendant was still inside at this time. Jones acknowledged that the

defendant’s threat to kill them was not included in his police statement. He did not remember

saying that the person shooting outside was standing in the church parking lot.

¶ 24 Greenlee testified that, after the shooting inside, he and Jones went to the front door and

locked it because they did not want anyone coming back in through that door. The defendant and

his friend approached, so Jones opened the door to let them out. However, the friend ran out of the

living room toward the back door. The defendant exited through the front door, and as he was

exiting, he shoved Jones. Greenlee reacted and told the defendant that he did not have to shove.

They then got into an argument, and the defendant acted like he was pulling out a gun. Greenlee

did not see a gun, so Greenlee thought that the defendant was just acting like he had one. The

altercation moved to the front porch, and they all ended up in the front yard. The defendant

eventually ran off across the street onto Beveridge Street, and Greenlee and Jones decided to leave.

10 ¶ 25 Greenlee saw the defendant run approximately 15 to 20 feet to either a black or red Charger

and open the vehicle’s trunk. He then saw people running down Beveridge Street, and he heard

gunshots; the defendant was shooting in his direction. As soon as he saw the defendant shooting,

he pushed Jones to the ground. He saw the defendant shoot approximately four shots at him, and

one of the shots hit him in his stomach on his side. He believed that the defendant was aiming at

him because the defendant was looking at him while shooting. There was another shooter with the

defendant, whom Greenlee was never able to identify. Greenlee acknowledged that the defendant

was standing on West Walnut and not in the church parking lot. After getting shot, Greenlee ran

toward the house, fell on the porch, and crawled into the living room. He did not have a gun on

him that night, and he did not shoot a gun at anyone. He acknowledged that when the investigating

officer asked him to identify the shooter from a series of photographs, he stated, “maybe it’s

number four,” which was the defendant. Although his identification was not as confident as his

testimony, he had been in the hospital at the time that he was asked to identify the shooter, and he

now had no doubt that the defendant was the person who had shot him.

¶ 26 Ingram testified that he made an agreement with the State to testify in exchange for

immunity; he had initially been charged with murder, but ultimately pled guilty to aggravated

discharge of a firearm and was sentenced to nine years’ imprisonment. At the time of the shooting,

Ingram was a student at SEMO and had gone to Carbondale for the fraternity party. He drove his

vehicle to Carbondale with his Rogue 9-millimeter firearm in the trunk. At some point, he left the

Sigma house to retrieve his gun because some friends were borrowing his car. He then reentered

the house with his gun in a holster on his hip. When Ingram heard shots fired inside the house, he

ran into a bedroom. When things were clear, he exited the house through the open front door and

11 ran across the street. While exiting, he noticed four men standing in front of the door, one of whom

had a revolver.

¶ 27 As Ingram was crossing the street, he heard one or two gunshots coming from “ahead of

him” in the middle of the street; he explained that although he was heading south, he kept turning

back around to see what was happening behind him. The shots were being fired in the direction of

the Sigma house. Ingram crossed the street, turned back around toward the Sigma house, and fired

his gun, as he felt threatened. He did not see anyone pointing a gun at him, and he did not remember

whether anyone fired in his direction. He initially started shooting in the direction of the house but

then started shooting into the air because of the gun’s recoil. The other person was also still

shooting at this time; that person was on his side, approximately two to three feet away. He then

turned away from the house and started running toward a friend’s vehicle. As he turned, he noticed

the defendant running down the street away from the house and saw that the defendant also had a

gun in his hand. He eventually got into a car with three women, and the four drove back to Cape

Girardeau. Ingram did not remember telling his friends that he acted in self-defense.

¶ 28 Eric Corey, an ISP forensic scientist, testified that a partial DNA profile was obtained from

the magazine discovered on the grass between the Sigma house and 334 West Walnut, but it did

not match the DNA profiles of the defendant or Ingram. However, he could not say that any of

those individuals did not touch the magazine as some people do not leave DNA when they touch

an item. Angela Horn, an ISP forensic scientist, testified that the projectile found near the church

administrative building was a .38-caliber bullet, but that she did not know whether it was fired

from a 9-millimeter or a .38-caliber revolver. Christopher Robinson, a private forensic consultant,

testified that he examined the bullet discovered near the church and concluded that it was a .38-

caliber Remington bullet which could have been fired from one of three different types of

12 revolvers: a Smith & Wesson, a Ruger and Taurus .38-Special, or a .357-Magnum. He denied that

the bullet had been fired from a 9-millimeter.

¶ 29 The defendant, who had been a 21-year-old student at SEMO in March 2016 testified that

he rode with his cousin, Anthony Griffin, and Griffin’s friend, Calvin White, in Griffin’s vehicle

to attend the Sigma party in Carbondale. They drank in the dorms before leaving for Carbondale.

The trio initially went to Hangar 9, and after an altercation broke out there, the defendant

intervened and broke the fight up. Eventually, the defendant, White, and Griffin left for the Sigma

house party. Griffin parked on the left side of South Beveridge and the trio entered the Sigma

house party. Upon their arrival, there were less than 15 people inside the front room, but the house

quickly became “packed.” The defendant did not consume any alcohol while there. He noticed that

Ingram entered the house by himself and left shortly afterwards. A physical fight broke out in the

living room, and the defendant recognized that some of the same people involved in the living

room fight had been involved in the Hangar 9 altercation. The defendant recalled that, as the fight

escalated, “everyone started pushing and falling.” The defendant fell and was trampled on,

resulting in a wrist injury. While on the ground, he heard two or three gunshots fired inside the

house, which was “packed wall to wall.” The defendant did not see who had fired the gun. The

house became chaotic, and the defendant crawled into a nearby bedroom for safety.

¶ 30 About 30 seconds later, after the living room had emptied out, the defendant decided to

exit the house through the front door, which was open. As he neared the door, two individuals

approached him and told him that he could not “leave out this fucking front door.” At the time, the

defendant did not know who they were; he later learned that they were Greenlee and Jones, and

that Greenlee had been the one who spoke to him. The defendant responded, “move the fuck out

of my way,” and told the men that he had “to get the hell up out of this house.” At that point, the

13 defendant still feared for his safety. Although Greenlee and Jones were still standing in the

doorway, the defendant squeezed himself through an opening, accidentally bumping Jones with

his left shoulder. Greenlee then pushed the defendant from behind, making him stumble down the

porch into the grass. As the defendant caught his balance, Greenlee, who was still on the porch,

said, “you ain’t got to push him like that.” The defendant turned around and asked, “What?”.

Greenlee then raised his shirt up, revealing a revolver in his waistband, and repeated, “you ain’t

got to push him like that.” The defendant then “went into defensive mode,” walking backwards

towards West Walnut with his hands up so that Greenlee would not shoot him.

¶ 31 When the defendant made it to the corner of West Walnut and South Beveridge, Greenlee,

who was standing in the grass in front of Beaty’s residence, 334 West Walnut, pulled out his

revolver and told the defendant, “Talk that shit now. Talk that shit now.” Greenlee then shot twice

in the defendant’s direction. The defendant knew this because he saw the “sparks” and felt and

heard the bullets fly past him. The defendant, who was armed himself, grabbed his own firearm, a

Glock, from inside his waistband, and returned fire in Greenlee’s direction until his magazine was

empty. The defendant testified that he believed he was going to die. Far behind him, the defendant

heard someone firing their own weapon. The defendant then ran back to Griffin’s vehicle. As he

ran, he saw Ingram running to Ingram’s own vehicle. Griffin, White, and the defendant then drove

back to SEMO, stopping for food along the way at White Castle. The defendant denied ever telling

Greenlee or Jones that he would kill them, and similarly denied going to the vehicle to retrieve his

firearm. He explained that he always took his firearm with him everywhere for his, and his

cousin’s, protection. He admitted that his firearm was fully loaded.

¶ 32 The defendant acknowledged that, as they were leaving the area, two police cars passed

by, but he did not stop and talk to them because he wanted to get to safety. He did not call 9-1-1

14 at that time because he had seen that police were already on their way. The defendant did not

contact police or visit a police station to inform them that he had been shot at because he still felt

threatened. The defendant never contacted police because, at the time of the incident, he was 21

and had “never had an encounter *** in 21 years with the law enforcement.” He insisted that he

did not know “the procedure” to follow after one had been shot at. He did not call 9-1-1 later on

because he did not “want anyone to reverse [his] words around,” and instead contacted a legal

team. On the night the defendant learned of Beaty’s death, he was back in St. Louis with his

parents.

¶ 33 After deliberation, the jury found the defendant guilty of one count of first degree felony

murder, one count of aggravated battery with a firearm, and two counts of aggravated discharge

of a firearm. The jury also found that, during the commission of the murder, the defendant

personally discharged a firearm that proximately caused great bodily harm to another. The trial

court ordered that a presentence investigation report (PSI) be completed.

¶ 34 On April 26, 2018, the defendant filed a motion for judgment of acquittal, or, in the

alternative, a new trial. In that motion, the defendant alleged, inter alia, that he had been

improperly convicted of felony murder because the predicate felonies relied upon to convict him

of felony murder were inherent in the act of murder with which he had been charged, and did not

involve conduct with an independent felonious purpose, other than the act of killing itself. The

defendant thus asked the trial court to enter a judgment of acquittal notwithstanding the verdict,

or, in the alternative, to order a new trial. Shortly thereafter, on April 30, 2018, the defendant

retained new counsel. 2

2 For clarity purposes, we will henceforth refer to the defendant’s new attorney as his “posttrial counsel,” although posttrial counsel also represented the defendant on his postconviction petition. In this appeal, however, the defendant is represented by the Office of the State Appellate Defender (OSAD). 15 ¶ 35 On June 18, 2018, through his newly retained posttrial counsel, the defendant filed a

supplement to his motion for judgment of acquittal. In that supplement, the defendant argued,

inter alia, that his trial counsel had provided unreasonable assistance where they “failed to call

multiple witnesses at trial who would have corroborated a justified use of force defense” through

testimony that “multiple shots were fired *** in their direction and [in] the direction of [the]

defendant.” The defendant “anticipated that some of these witnesses [would] testify [to the same]

at the hearing” on this motion. The specific witnesses to whom the defendant referred were not

named in his original motion, or in his supplemental filing.

¶ 36 In its June 27, 2018, response to the defendant’s motion and supplement, the State

contended that, “on information and belief, via an email communication from the defendant’s

counsel,” it believed that the defendant was “referring to Anthony Griffin, Lena McMiller[,] and

Destiny Leonard.” Specifically regarding Leonard, the State argued that trial counsel’s failure to

call her as a witness at trial was plausibly an active trial strategy decision, as Leonard was

apparently “a known associate and friend to the defendant *** [whose] bias toward the defendant

was obvious[,]” she “never identified anyone shooting, or *** from where the shots were

coming[,]” she “later retracted some of [her] statements[,]” and she “admitted to law enforcement

that she had 20/200 vision.” The State also argued that “these witnesses were notorious for

intentionally avoiding service,” that “[f]ailure of an authority to serve a witness [could] hardly be

attributed to trial counsel,” and that the defendant’s grievance thus could not fairly serve as

evidence of trial counsel’s ineffective assistance.

¶ 37 That same day, the trial court held a hearing on the defendant’s motion and supplement.

The defendant’s posttrial counsel presented testimony from two witnesses who had not testified at

trial, Anthony Griffin and Lena McMiller. Griffin testified that he rode to the Sigma house party

16 with the defendant, who was his cousin with whom he was very close. The Sigma house was

crowded with hundreds of people standing essentially shoulder to shoulder, and loud music was

blasting. Upon hearing approximately three gunshots fired inside the house, Griffin ran out the

front door to his vehicle, which was parked across the street from the Sigma house. As he ran, he

saw “bullets ricocheting off the ground” and heard gunshots. While he was waiting for the

defendant near his car, as they had lost each other in the chaos, he observed two shooters. One man

was on the front lawn of the Sigma house, and the other was on the right side of the Sigma house.

Both men were shooting away from the house, across Walnut Street and toward the church parking

lot, where a group had gathered. Griffin testified he heard “at least four to ten” gunshots come

from the Sigma house shooters. Griffin was scared for his life and believed he would die that night.

¶ 38 Griffin only spoke to the defendant’s trial counsel once, approximately one to two months

after the incident, and gave trial counsel essentially the same information. Griffin explained that

trial counsel told him that they would “meet up” later, but this next meeting never occurred. Griffin

was not called as a witness at trial. Griffin affirmed that he cared about his cousin and had known

him a long time, but denied that he would “say anything to help him out.” Griffin did not call the

police before leaving Carbondale, assuming that because he “could hear the sirens[,]” they were

“around the corner already.” He did not stay to talk to police because he feared for his life. Griffin

admitted that the first thing he and the defendant did after leaving Illinois was to go and eat at

White Castle. Griffin did not recall talking to law enforcement about the incident. Griffin

acknowledged that, although he knew the defendant—his cousin—had been jailed and charged

with first degree murder, he never called the police or the defendant’s trial counsel.

¶ 39 Lena McMiller testified that, in March of 2016, she was a student at SEMO. She travelled

with some fellow students to the Sigma house party. She attended the party “for, like, two minutes

17 literally and then left” because the house was so crowded that “[e]verybody was standing on top

of each other[,]” the party was more male-heavy than usual, and the environment “was just really

tense.” McMiller left and walked to the church parking lot directly across the street from the Sigma

house. She and her friends, including Leonard, “were standing on the parking lot just talking and

everything,” and after a while, she heard two to three gunshots and saw people running out of the

house. They heard more gunshots, and “took off running.” As she ran to her vehicle, a bullet flew

past her and hit the church wall. She then changed directions and continued running to her vehicle.

Once she reached her vehicle, she immediately left the area. McMiller believed that she heard

“about 10 to 15” gunshots. She was sure that “a lot” of shots were being fired in her direction.

Between the time she heard the initial gunshots inside the Sigma house and when she heard the

rest of the gunshots being fired in her direction, she did not hear any other shots. McMiller did not

see anyone holding a gun that night but was scared for her life.

¶ 40 McMiller talked to the defendant’s trial counsel once approximately one month after the

incident, and then once right before the trial started, and gave counsel the same information.

McMiller admitted that she was the defendant’s cousin, that she did not call the police after the

incident, and that the police had to call her themselves before she talked to them. She also admitted

that she had been subpoenaed by the State’s attorney and had appeared in front of the Cape

Girardeau County circuit court in March 2017 that she remembered the State’s attorney being

there, that she knew he was prosecuting the defendant’s case, and that she still did not stay to talk

to the State’s attorney after the hearing had concluded. McMiller acknowledged that her address

had not changed during the relevant period of time but denied awareness of six out-of-state

subpoenas sent to her. She denied “ducking and dodging” subpoenas and only recalled being

served twice. McMiller insisted that she would have testified at trial if she had been served or

18 asked to come to court, but that neither occurred. After McMiller stepped down, the trial court

asked the defendant’s posttrial counsel if he had any other witnesses to present. Posttrial counsel

commented that although he “had planned on calling one other witness,” Leonard, she had not

come to court that day. The trial court therefore noted on the record that “Miss Leonard [was] not

available to testify.”

¶ 41 The trial court then heard counsels’ arguments on the motion. The State argued against

posttrial counsel’s contention that trial counsel had been ineffective for failing to call witnesses,

pointing out that, even at the current hearing, one of the witnesses the defendant had wanted to

call, Leonard, had not even bothered to show up. The State then emphasized that, despite “the

attempts that the State made at securing” the witnesses’ presence, “they didn’t bother cooperating.”

The State also commented that it was “the [d]efendant’s counsel’s decision on what witnesses to

call” at trial. Ultimately, the trial court denied the defendant’s posttrial motion and supplemental

filing on all points.

¶ 42 The trial court then proceeded to the sentencing hearing, during which it indicated that it

had received and reviewed the PSI, two written victim impact statements, and four character letters

submitted on the defendant’s behalf. After that, Beaty’s mother, father, sister, and wife all testified

to the devastating impact Beaty’s killing had on their lives and on Beaty’s son. In aggravation, the

State noted that the defendant discharged his weapon multiple times directly in the middle of Route

13, the main thoroughfare through Carbondale, as well as near St. Francis Xavier Church, on Easter

Sunday. The State argued that it was the defendant’s actions that killed Beaty, an innocent victim.

The State acknowledged that, according to the PSI, the defendant was not “a bad kid,” was going

to college, and was raised without a father, although the State noted that the defendant had his

mother, who raised him and his siblings by herself. Although the defendant claimed his acts were

19 justified, and the statements offered on his behalf characterized his actions as a mistake, the State

disagreed and argued that they were conscious actions. The State noted that the defendant traveled

from Missouri to Illinois with a loaded gun, took that loaded gun to a party, and then decided to

repeatedly shoot at Greenlee.

¶ 43 In mitigation, the defendant’s posttrial counsel contended that the defendant was a young

man with no criminal history who had taken honor classes in high school and graduated in the top

30% of his class. The defendant played on a college football scholarship at Lane University before

transferring to SEMO. At the time of the shooting, the defendant was studying business

management because he hoped to own his own business one day. The defendant also hoped to start

playing football again. He had four younger siblings for whom he deeply cared and functioned as

a father figure. Defense counsel argued that the defendant “had no intention of killing someone

that day, and there certainly was evidence of self-defense,” although counsel acknowledged that

the jury ultimately rejected that theory. Counsel also argued that evidence of provocation was

presented through the fact that a bullet had been found near the marked church wall, and through

testimony alleging that Greenlee had flashed his firearm, pushed from behind, and fired the first

shot at the defendant.

¶ 44 Counsel argued that the defendant deserved leniency because he did not intend to kill

anyone, but simply wanted to defend himself. Defense counsel further contended that the lesser

included offenses merged into the felony murder conviction, and that the lesser convictions

therefore had to be vacated. Counsel argued that there was hope for the defendant’s rehabilitation

because he had never been involved in anything like this before and was a “good seed” prior to

this incident, as proven through his school records and background. Therefore, counsel asked that

the lesser included crimes merge into the murder conviction, and that the trial court sentence the

20 defendant to 20 years’ imprisonment based on the lack of aggravating factors and the presence of

the following mitigating factors: that the defendant acted under a strong provocation, that there

were substantial grounds tending to excuse or justify his criminal conduct, that he had no history

of prior delinquency or criminal activity, that he led a law-abiding life before the incident, that his

criminal conduct was the result of circumstances unlikely to reoccur, and that his character and

attitude indicated that he was unlikely to commit another crime. The defendant then gave his

statement in allocution expressing regret for his actions, asking for forgiveness, and pleading for

a second chance. He indicated that he would use his second chance to help others going down the

wrong path.

¶ 45 In making its sentencing decision, the trial court noted that it had considered the PSI; the

written victim impact statements; the victim impact testimony from Beaty’s family; the four

character letters submitted on the defendant’s behalf; the trial testimony and exhibits; the respectful

way that the defendant always conducted himself in court; the defendant’s background,

upbringing, and accomplishments in life, in that he was a leader, made good grades, played sports,

obtained a college scholarship to play football, was attending college at the time of the incident,

and was attempting to better himself; his statement in allocution where he apologized for his

actions; and counsels’ arguments in aggravation and mitigation. The court also indicated that it

had considered the relevant factors in aggravation, specifically the need to deter others.

¶ 46 As for factors in mitigation, the trial court noted that it had considered whether the

defendant contemplated that his criminal conduct would cause or threaten serious physical harm

to another, whether he acted under strong provocation in this particular situation, whether there

were substantial grounds tending to excuse or justify his criminal conduct, the fact that he had no

other criminal history, whether the criminal conduct was the result of circumstances unlikely to

21 reoccur, his character and attitude indicating that he was unlikely to commit another crime, and

whether imprisonment would entail excessive hardship to his family, given that the defendant

helped out with his younger siblings. On the first degree murder conviction, the trial court

sentenced the defendant to 35 years’ imprisonment with a mandatory sentence enhancement of 25

years. On the aggravated battery with a firearm conviction, the court sentenced the defendant to

15 years’ imprisonment; and on both aggravated discharge of a firearm convictions, the court

sentenced the defendant to 5 years’ imprisonment per count (10 years total).

¶ 47 On July 25, 2018, the defendant filed a motion to vacate convictions and to reconsider

sentences, arguing that (1) the trial court was obligated to vacate the three convictions on the

felonies that served as the predicate felonies for the felony murder conviction and (2) the trial court

should reconsider the defendant’s sentence where the court improperly instituted a firearm

sentence enhancement term, and where the sentence was excessive under the circumstances. In

arguing excessive sentencing, the defendant named several “mitigating factors that were not

adequately considered,” including that the defendant had acted under strong provocation, that there

were substantial grounds tending to excuse or justify his conduct, that he had a complete lack of

criminal history, that he was sincerely remorseful, that he was unlikely to reoffend, and that he had

a likelihood for rehabilitation. The motion failed to specifically identify and include any youth-

based or Miller-based factors. 3

¶ 48 At the September 4, 2018, hearing on the defendant’s postsentencing motion, the State

conceded that the predicate felonies for felony murder were considered lesser included offenses

and had to be vacated. Defense counsel asked the trial court to reconsider the defendant’s murder

sentence, opining that he did “not recall aggravating factors that justified” the defendant’s 35-year

3 See Miller v. Alabama, 567 U.S. 460 (2012). 22 sentence, as opposed to the 20-year minimum. Defense counsel emphasized the mitigating factors

of “strong provocation, substantial grounds tending to excuse or justify the [d]efendant’s conduct,

the [d]efendant’s complete lack of criminal history, his sincere remorse, the unlikeliness of this

reoccurring, and the likelihood for rehabilitation for this young man.” Ultimately, the trial court

vacated the aggravated battery with a firearm conviction and both aggravated discharge of a

firearm convictions, but declined to retract the firearm sentencing enhancement term or otherwise

reconsider the defendant’s sentence on the first degree murder conviction. Thus, the defendant’s

amended sentence was 35 years’ imprisonment for first degree murder, with the 25-year

enhancement to be served consecutively. The trial court denied the defendant’s motion on all other

remaining claims. The trial court’s written order finalizing this ruling was filed on October 17,

2018, and the defendant appealed to this court.

¶ 49 On direct appeal, this court affirmed the defendant’s conviction and sentence where,

inter alia, the defendant’s trial counsel was not ineffective for failing to call certain witnesses as a

matter of trial strategy, the sentencing enhancement instituted by the trial court was mandatory,

and the trial court properly considered the sentencing factors in aggravation and mitigation. See

Tyler, 2021 IL App (5th) 180476-U.

¶ 50 On October 14, 2022, the defendant, through his posttrial counsel, filed a postconviction

petition, claiming actual innocence and ineffective assistance of trial counsel. Notably, the petition

made no Miller-based claims or any claims surrounding excessive or improper sentencing.

¶ 51 The postconviction petition admitted that although trial counsel never called Leonard as a

witness at trial, trial counsel did interview Leonard, who advised trial counsel “that she saw

shooting in the direction of [the defendant] and that she heard bullets whizzing past her head as

she attempted to escape.” The petition explained that posttrial counsel had been unable to obtain

23 sworn testimony from Leonard until receiving her executed affidavit on September 27, 2022. The

petition argued that trial counsel’s failure to call witnesses who would have corroborated the

defendant’s testimony that he acted in self-defense was part of what constituted trial counsel’s

ineffective assistance of counsel. The petition also argued that Leonard’s affidavit constituted

“new, material, noncumulative and conclusive evidence of [the defendant’s] innocence that would

probably change the result of his case on retrial.” Although the petition specifically asked that the

court “grant [the defendant] sufficient time and leave to amend this petition to add additional

claims *** as needed,” the only items ultimately added to the petition were two exhibits: an

affidavit from the defendant certifying that the statements in his postconviction petition were true

and correct to the best of his knowledge, and another affidavit from the defendant regarding an

aspect of his ineffective assistance of trial counsel claim which is not relevant to this appeal.

¶ 52 Leonard’s affidavit stated that she was present at 402 West Walnut in Carbondale, Illinois,

on March 27, 2016. She had initially come to Carbondale to attend a different party hosted by SIU

students, but was denied entry at that party due to age restrictions. Leonard and her group of friends

connected with other students and, after eating out at a restaurant, learned about the party at 402

West Walnut. She and her friends drove to the address and parked their cars alongside a church

nearby. As they walked toward the entrance of 402 West Walnut, they observed several young

men standing outside the house who seemed to be “standing guard.” The men were standing side-

by-side, and seemed to be intentionally blocking the entrance to the house. The men only partially

moved out of their way as Leonard and her friends made their way into the party. As they passed

the men, Leonard heard one of the men say to another that there were “too many Saint Louis

mother****ers inside,” and that they needed to “get all these mother****ers out of here.” Leonard

felt uncomfortable at the party and suggested to her friends that they leave. They left the party and

24 talked to some classmates standing in the church parking lot near their own cars, where Leonard

and her friends had also parked.

¶ 53 A short while later, Leonard and her group “heard multiple gunshots and saw crowds of

people trying to run out of the house through the front and rear entrance.” Leonard instinctively

ducked between the cars, and when she stood up, she “saw a man with a gun, shooting from the

porch in the direction of the church[,]” where Leonard and many other students had gathered. As

Leonard and her friends ran from the gunfire, they “heard bullets flying past [them] and hitting the

side of the nearby church.” After seeing that police had arrived on the scene, Leonard and her

friends drove away from the area back to their campus in Missouri. Leonard admitted that she

knew of the defendant, was aware that he attended her school (SEMO), and knew that he was from

Saint Louis. Leonard attested to her belief that the defendant “discharged his firearm in self-

defense, based on [her] observations of the party at 402 West Walnut, and the shooting that broke

out there.” Leonard confirmed that, had she been called to testify at the defendant’s trial, her

testimony would have been consistent with her affidavit. On November 14, 2022, the trial court

advanced the defendant’s postconviction petition to the second stage.

¶ 54 On March 24, 2023, the State filed a motion to dismiss the defendant’s postconviction

petition, arguing, inter alia, that because the defendant had already raised a claim of ineffective

assistance of trial counsel in his direct appeal to this court, and this court had found that trial

counsel was not ineffective, he was now barred by either res judicata or forfeiture from raising

further ineffective assistance of trial counsel claims in his postconviction petition. Citing People

v. King, 192 Ill. 2d 189, 192-93 (2000), the State asserted that the scope of postconviction review

was limited “to constitutional matters which have not been, and could not have been, previously

adjudicated.” (Internal quotation marks omitted.) Id. Therefore, the State argued that the trial court

25 could not consider the defendant’s ineffective assistance of trial counsel claim. Regarding the

defendant’s actual innocence claim, the State argued that Leonard’s affidavit offered “no new,

conclusive, or material evidence that would result in a different outcome on appeal[;]” specifically

challenged the characterization of Leonard’s affidavit as “new evidence” under the Act; and

asserted that the evidence could have been presented on direct appeal, but was not, and was thus

similarly barred by res judicata from postconviction consideration.

¶ 55 In his response to the State’s motion to dismiss, the defendant asserted that his ineffective

assistance of trial counsel claim was not barred from postconviction consideration because,

although Griffin and McMiller did testify at posttrial proceedings, Leonard “did not testify at trial

or posttrial proceedings[,]” and, as a result, the contents of her affidavit “could not have been

included in the record on [direct] appeal.” Despite arguing that trial counsel was ineffective for

not calling Leonard as a witness at trial, the defendant made a conflicting argument of actual

innocence regarding Leonard’s affidavit, asserting that her affidavit was newly discovered because

the defendant could not have discovered it sooner through due diligence. The defendant resolved

this contradiction by explaining that, although his trial counsel could have interviewed Leonard,

trial counsel’s failure to do so had “nothing to do with” the defendant’s due diligence. Finally, the

defendant noted that Leonard’s affidavit had not been able to be obtained until September 27,

2022.

¶ 56 Thereafter, the State filed an amended motion to dismiss, and the defendant filed a response

to the State’s amended motion. As nothing relevant to this appeal was added or changed in either

filing, we will not discuss their contents further.

¶ 57 On December 29, 2023, the trial court issued an order granting the State’s amended motion

to dismiss the defendant’s postconviction petition at the second stage. In the order, the trial court

26 determined that (1) the defendant’s ineffective assistance of trial counsel claims were either raised

and decided in his direct appeal, or could have been raised and decided there, and were therefore

barred by either res judicata or forfeiture and (2) Leonard’s affidavit was not “newly discovered.”

The trial court commented that, although the defendant’s petition admitted that “[t]he evidence in

[Leonard’s] affidavit was *** known to [the] defendant at the time of the trial,” it failed to explain

why the defendant could not have obtained Leonard’s testimony at that time through due diligence.

The trial court thus dismissed the defendant’s postconviction petition. The record confirms that

the defendant’s posttrial counsel did not file a certificate under Illinois Supreme Court Rule 651(c)

(eff. July 1, 2017). The defendant appeals.

¶ 58 II. ANALYSIS

¶ 59 On appeal, the defendant argues that this court should reverse the trial court’s second-stage

dismissal of his postconviction petition and remand for a third-stage evidentiary hearing where the

defendant made a substantial showing of actual innocence. Alternatively, the defendant argues that

this court should reverse and remand for new second-stage proceedings with new counsel where

the defendant was denied his right to reasonable assistance of postconviction counsel because his

posttrial counsel, who also represented him in postconviction matters prior to this appeal, failed to

substantially comply with Rule 651(c).

¶ 60 A. Actual Innocence

¶ 61 The defendant argues that the trial court erred in dismissing his postconviction petition at

the second stage because he made a substantial showing of actual innocence where Leonard’s

affidavit was newly discovered, material and noncumulative, and of such conclusive character that

it was likely to change the result on retrial. We disagree.

27 ¶ 62 The Act (725 ILCS 5/122-1 et seq. (West 2022)) provides a statutory remedy to criminal

defendants who assert claims for substantial violations of their constitutional rights at trial. People

v. Robinson, 2020 IL 123849, ¶ 42. Under the Act, a postconviction proceeding consists of three

stages. People v. Johnson, 2018 IL 122227, ¶ 14. At the first stage, the trial court, without input

from the State or further pleadings from the defendant, must independently review the

postconviction petition and determine whether it is “frivolous or is patently without merit.”

(Internal quotation marks omitted.) Id.; 725 ILCS 5/122-2.1(a)(2) (West 2022). If the court

determines that the petition is frivolous or patently without merit, the court must dismiss the

petition at this stage. Johnson, 2018 IL 122227, ¶ 14. If, however, the petition is not dismissed at

this stage, then it advances to the second stage, where the State is permitted to file responsive

pleadings. Id. ¶¶ 14-15; 725 ILCS 5/122-2.1(b) (West 2022). At this stage, the court must

determine whether the petition, along with any accompanying documentation, make a substantial

showing of a constitutional violation. Id. ¶ 15, citing People v. Edwards, 197 Ill. 2d 239, 246

(2001). Our supreme court has held that, at this stage, the trial court is foreclosed from engaging

in any fact-finding, and that all well-pleaded facts are to be taken as true. People v. Coleman, 183

Ill. 2d 366, 380-381. If the defendant successfully makes a substantial showing of a constitutional

violation at this second stage, then the petition advances to a third-stage evidentiary hearing.

Johnson, 2018 IL 122227, ¶ 15. However, if no such showing is made, then the petition is

dismissed. Id. The second-stage dismissal of a postconviction petition is subject to de novo review.

People v. Sanders, 2016 IL 118123, ¶ 31. Here, the defendant challenges the trial court’s second-

stage dismissal of his postconviction petition by asserting that the trial court erred in finding that

he had failed to make a substantial showing of the actual innocence claim asserted in his petition.

28 ¶ 63 Our supreme court has held, as a matter of Illinois constitutional jurisprudence, that a claim

of newly discovered evidence showing a defendant to be actually innocent of the crime for which

he was convicted is cognizable as a matter of due process and a substantial violation of his

constitutional rights. People v. Washington, 171 Ill. 2d 475, 489 (1996). In order to make a

substantial showing of actual innocence at the second stage of proceedings under the Act, the

offered evidence, taken as true, must be (1) newly discovered, (2) material and not cumulative,

and (3) of such conclusive character that it would probably change the result on retrial. Sanders,

2016 IL 118123, ¶ 24. Newly discovered evidence is evidence that was discovered after the trial

and that could not have been discovered earlier through the exercise of due diligence. Robinson,

2020 IL 123849, ¶ 47. Evidence is material if it is relevant and probative of defendant’s innocence.

Id. Noncumulative evidence adds to the information that the fact finder heard at trial. Id. The

conclusive character element refers to evidence that, when considered along with the trial

evidence, would probably lead to a different result. Id. This last element is the most important

element of an actual innocence claim. Id. The ultimate question for an actual innocence claim is

whether the newly discovered evidence places the trial evidence in a different light and undermines

the court’s confidence in the judgment of guilt. Id. ¶ 48. The new evidence need not be entirely

dispositive to be likely to alter the result on retrial. Id. Probability, rather than certainty, is the key

in considering whether the fact finder would reach a different result after considering the trial

evidence along with the new evidence. Id.

¶ 64 In this case, the trial court found that the defendant failed to make a substantial showing

of actual innocence where Leonard’s affidavit was not “newly discovered.” Here, we need not

address whether the affidavit could have been discovered earlier in the exercise of due diligence

or whether it is material and noncumulative because we find that, even assuming those conditions

29 have been satisfied, the evidence is not of such conclusive character that it would probably change

the result on retrial. See Sanders, 2016 IL 118123, ¶ 47.

¶ 65 At trial, the only substantial evidence, other than the defendant’s own testimony,

suggesting that the defendant shot at the Sigma House in self-defense, was Officer Ital’s testimony

that he had found a bullet on the ground about eight feet back from the church wall, and observed

a bullet strike marking approximately five feet up on that church wall. Even so, Officer Ital could

not confirm anything more than that the bullet could possibly have come from 334 or 402 West

Walnut.

¶ 66 According to Detective Weisenberger, the bullet from the church area was the first

evidence collected indicating that gunfire had been directed south. Officers Stewart and Moorman

both admitted that they had not searched for evidence by the church or along the church wall upon

being dispatched to the Sigma house for the shooting. Officer Ital, who found the lone church

bullet, admitted that his department could have missed other markings and bullets in the church

area. Sergeant Williams admitted that he never asked any witnesses about the bullet strike marking

on the church wall or about whether there was gunfire going in the direction of the church, although

he did ask witnesses about the shooting they had observed that night generally. Sergeant Williams

also denied that the bullet strike marking necessarily conflicted with the information he had

obtained from witnesses. Detective Weisenberger acknowledged that no witness told him about

gunfire going toward the south, and testified that he did not believe anyone from his office had

intentionally talked with witnesses about the church evidence. Sergeant Geissler testified that,

although he investigated claims that individuals to the north side of West Walnut Street were

holding firearms during the shooting, he was unable to find any evidence corroborating those

claims.

30 ¶ 67 With regard to other ballistic evidence found, after being dispatched for the shooting,

Trooper Harsy observed a loaded handgun magazine on the floor near the Sigma house’s brick

fireplace, as well as a live .40 caliber cartridge on the fireplace ledge. Detective Stewart and Officer

Mooney, who were also dispatched just after the shooting, found 15 shell casings and one live

round in the intersection of West Walnut and South Beveridge. Between 402 and 334 West Walnut,

they found a partially loaded magazine, and in front of 322 West Walnut, they found a shell casing

different from the others previously found. However, both Stewart and Mooney acknowledged

that the ballistic evidence they had found could have been moved from their original position in

the chaos after the shooting.

¶ 68 Dominique White, a student who had attended the Sigma party, testified that she did not

see anyone shooting on the north side of West Walnut, but did see someone in a black outfit

shooting from the crowd across the street from the Sigma House. Joshua Bell, Greenlee’s friend

and a student attending the Sigma house party, testified that he saw two individuals shooting

toward the house from across the street, and identified one of the individuals as the defendant. Bell

explicitly denied ever seeing Greenlee having or shooting a gun that night.

¶ 69 Additionally, the only recollection of the encounter between Greenlee, Jones, and the

defendant that differed significantly from the others was that of the defendant’s. While the

defendant testified that Greenlee had shown him a revolver in his waistband after they got into an

altercation, both Jones and Greenlee testified that it was the defendant who had reached for his

waist as though he had a gun. Although Jones testified that he saw the handle of a gun at that point,

Greenlee testified that he did not, and thus thought the defendant was pretending. While the

defendant testified that Greenlee had initiated the shooting by firing twice in the defendant’s

direction, both Jones and Greenlee testified that it was the defendant who began shooting from

31 across the street in their direction, the direction of the Sigma house. In fact, while both Jones and

Greenlee explicitly denied ever having or shooting a gun that night, the defendant admitted being

armed with a fully loaded Glock and shooting in the direction of the Sigma house until his

magazine was empty.

¶ 70 While John Ingram, the defendant’s prior codefendant, recollected seeing a man with a

revolver in front of the Sigma house door, he also recollected seeing an individual only feet away

from him on his side of the street shooting in the direction of the Sigma house. Ingram denied

seeing anyone point a gun at him, and did not remember whether anyone fired in his direction. As

he ran to his vehicle, Ingram noticed the defendant running as well, and he saw that the defendant

had a gun in his hand.

¶ 71 At a posttrial hearing, Anthony Griffin, the defendant’s cousin, testified that as he ran

across the street from the Sigma house, he saw bullets “ricocheting” off the ground and heard

gunshots. Griffin saw two shooters firing toward the church parking lot, both on the north side of

the street near the Sigma house. Despite knowing that the defendant had been jailed and charged

with first degree murder, Griffin never called the police or the defendant’s counsel prior to trial.

At the same posttrial hearing, Lena McMiller, another of the defendant’s cousins, testified that,

although she did not see anyone holding a gun that night, she was sure that “a lot” of gunshots

were being fired in her direction near the church parking lot. As she ran to her vehicle, a bullet

flew past her and hit the church wall. McMiller did not testify at trial because she had not been

served or asked to come to court at that time.

¶ 72 In her affidavit, the only evidence the defendant attached to his postconviction petition in

support of his actual innocence claim, Leonard stated that, as she passed the men at the Sigma

house’s front door to enter the party, she heard them speak disdainfully about how there were too

32 many attendees from St. Louis. Leonard “felt uncomfortable” at the party and left shortly

thereafter, walking across the street to the church parking lot. When the shooting started, Leonard

saw, from where she was standing near the church, a man with a gun firing from the Sigma house

porch in the church’s direction. As Leonard ran from the gunfire, she heard bullets hitting the side

of the church. Leonard denied knowing anything more about the defendant than his name, that he

also attended SEMO, and that he was from St. Louis. Leonard’s affidavit concluded by stating her

belief that the defendant had fired in self-defense. Leonard never testified at either trial or posttrial

proceedings.

¶ 73 To find that the defendant made a substantial showing of actual innocence at the second

stage, we must be able to find that Leonard’s affidavit is so conclusive that it is more likely than

not to change the result on retrial. Upon de novo review, after reviewing Leonard’s affidavit

alongside the overwhelming evidence against the defendant, we are unable to make such a

conclusion here. Therefore, we find that the trial court did not err in dismissing the defendant’s

postconviction petition at the second stage.

¶ 74 B. Illinois Supreme Court Rule 651(c)

¶ 75 The defendant next argues that this court should reverse and remand for new second-stage

proceedings with new counsel where he was denied his right to reasonable assistance of

postconviction counsel because his posttrial counsel, who also represented him in postconviction

matters prior to this appeal, failed to substantially comply with Illinois Supreme Court Rule 651(c)

(eff. July 1, 2017). The defendant does not assert that posttrial counsel failed to consult with the

defendant or examine the record; rather, the defendant asserts only that counsel failed to make

necessary amendments to the petition.

33 ¶ 76 The proportionate penalties clause in the Illinois constitution provides greater protection

regarding sentences than the eighth amendment to the federal constitution, in that the Illinois

constitution requires that penalties be determined “with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11. A sentence violates this clause if it is “cruel,

degrading, or so wholly disproportionate to the offense as to shock the moral sense of the

community.” (Internal quotation marks omitted.) People v. Hilliard, 2023 IL 128186, ¶ 20. A

sentence of “any length” can violate the clause. Id. ¶ 29. Although recent decisions of our supreme

court have limited Miller-based eighth amendment challenges for emerging adults, they have not

foreclosed emerging adults from raising as-applied sentence challenges under the proportionate

penalties clause of the Illinois Constitution. People v. Williams, 2024 IL 127304, ¶ 29. Such as-

applied challenges remain viable for emerging adults who can present evidence that their brains

were like juvenile brains at the time of the offense. People v. Harris, 2018 IL 121932, ¶¶ 45-46;

People v. Thompson, 2015 IL 118151, ¶¶ 38-40. Here, the defendant, who was 21 years old at the

time of the offense, claims that such an as-applied emerging adult sentencing challenge under the

Illinois proportionate penalties clause was “readily apparent” on the face of the record, and that

his posttrial counsel was therefore obligated under Rule 651(c) to either include the claim in his

postconviction petition, or to adequately amend the petition to save it from forfeiture. In not doing

either, the defendant claims that posttrial counsel failed to comply with Rule 651(c), thus providing

unreasonable assistance of counsel. We disagree.

¶ 77 At the outset, we first consider whether Rule 651(c) is applicable in the defendant’s case.

As the right to counsel in postconviction proceedings is wholly statutory, postconviction

defendants are only entitled to the level of assistance provided by the Act. See 725 ILCS 5/122-4

(2022); People v. Turner, 187 Ill. 2d 406, 410 (1999). It is well settled that the Act requires counsel

34 to provide a reasonable level of assistance to a defendant in postconviction proceedings. Turner,

187 Ill. 2d at 410. Rule 651(c) is one such “vehicle for ensuring a reasonable level of assistance[,]”

but it is not applicable to all postconviction cases. People v. Anguiano, 2013 IL App (1st) 113458,

¶ 37. In fact, Rule 651(c) compliance is only required where the defendant’s initial postconviction

petition was filed pro se. See People v. Cotto, 2016 IL 119006, ¶ 41; see also People v. Mitchell,

189 Ill. 2d 312, 358 (2000); and People v. Richmond, 188 Ill. 2d 376, 383 (1999). Indeed, our

supreme court has repeatedly made it clear over the years that “where private counsel is retained

and files the [initial] postconviction petition, postconviction counsel need not comply with Rule

651(c) [citation] but must still perform reasonably.” People v. Smith, 2022 IL 126940, ¶ 32; People

v. Urzua, 2023 IL 127789, ¶ 24.

¶ 78 Here, the defendant filed his initial postconviction petition through his posttrial counsel,

who also represented him in postconviction matters prior to this appeal. As the defendant’s initial

postconviction petition was not filed pro se, posttrial counsel could not have violated the

provisions of Rule 651(c).

¶ 79 However, even where Rule 651(c) is inapplicable, all postconviction petitioners who are

“represented by counsel in proceedings under the Act [are] entitled to a reasonable level of attorney

assistance. [Citation.] This is true whether the attorney is appointed or retained and whether the

proceedings are at the first, second, or third stage.” Urzua, 2023 IL 127789, ¶ 51. As “our case law

does not treat Rule 651(c) as the exclusive mechanism for ensuring reasonable assistance[,]” we

may evaluate whether reasonable assistance of counsel was provided without reference to Rule

651(c). Smith, 2022 IL 126940, ¶ 25.

¶ 80 We thus turn to evaluating whether the defendant’s posttrial counsel, who also represented

him in postconviction matters until this appeal, provided unreasonable assistance in failing to

35 either add an emerging adult proportionate penalties claim to the petition, or to adequately amend

the petition to save the claim from forfeiture. The defendant’s arguments, which we address in

turn, “present questions of law that we review de novo.” People v. Cotto, 2016 IL 119006, ¶ 24.

¶ 81 1. Duty to Add Claim

¶ 82 The defendant first contends that the providing of reasonable assistance includes a duty to

bring claims that are readily apparent on the face of the record, and asserts that, here, an emerging

adult proportionate penalties claim was such a claim. Even if we were to accept the contention that

the providing of reasonable assistance requires counsel to bring claims readily apparent on the face

of the record, we do not find that the defendant’s emerging adult proportionate penalties claim was

such a readily apparent claim. Where a defendant simply cites his age at the time of the offense

and the evolving science on juvenile maturity and brain development, without offering something

more demonstrating how that science applied to the particular circumstances of his case, he does

not sufficiently make an as-applied claim that a sentence violates the proportionate penalties clause

of the Illinois Constitution. See Thompson, 2015 IL 118151, ¶ 38; see also Williams, 2024 IL

127304, ¶¶ 30-31.

¶ 83 Here, the only evidence tending to show that the defendant had a basis to argue that he had

an immature brain was the fact that he was 21 at the time of the crime. Science on juvenile maturity

and brain development was not offered into evidence at any point during trial or posttrial

proceedings. However, there was significant evidence demonstrating the defendant’s maturity and

development at the time of the crime. At the sentencing hearing, defense counsel described the

defendant as a young man with no criminal history who had taken honor roll classes in high school

and graduated in the top 30% of his class; played on a college football scholarship; studied business

management in hopes of owning his own business one day; and functioned as a father figure for

36 his four younger siblings. Therefore, an emerging adult proportionate penalties claim would not

have been readily apparent on the face of the record here. Upon de novo review, we find that

postconviction counsel did not provide unreasonable assistance by not adding an emerging adult

proportionate penalties claim to the petition.

¶ 84 2. Duty to Save Claim from Forfeiture

¶ 85 Next, the defendant alleges that counsel failed to provide reasonable assistance where

counsel failed to adequately amend the petition to save the emerging adult proportionate penalties

claim from forfeiture. We first determine whether the claim was in fact forfeited. The defendant

asserts that the emerging adult proportionate penalties claim was forfeited where it was not argued

on direct appeal, and that, therefore, in order to provide reasonable assistance, postconviction

counsel was required to save the claim from forfeiture by alleging ineffective assistance of

appellate counsel in the petition.

¶ 86 Generally, a claim is forfeited on direct appeal if it could have been raised there but was

not. See People v. Tate, 2012 IL 112214, ¶ 8. However, the doctrine of forfeiture is relaxed “where

the facts relating to the issue do not appear on the face of the original appellate record.” People v.

English, 2013 IL 112890, ¶ 22. Here, as we have explained above, there was no evidence or

argument in the record, except the bare fact of the defendant’s age of 21 years, to suggest a possible

emerging adult proportionate penalties claim, or that such a claim would have had any merit or

viability. Such a claim, therefore, was not conclusively forfeited on direct appeal. Additionally,

postconviction counsel had no obligation to preserve a claim from forfeiture which did not have a

basis in the record or a prospect of success. Upon de novo review, we find that the defendant was

provided reasonable assistance of postconviction counsel.

37 ¶ 87 III. CONCLUSION

¶ 88 The defendant failed to make a substantial showing of his actual innocence claim at the

second stage of proceedings under the Act. Additionally, the defendant was provided reasonable

assistance of postconviction counsel. Accordingly, we affirm the trial court’s dismissal of the

defendant’s postconviction petition at the second stage.

¶ 89 Affirmed.