                                        2014 IL App (1st) 113570


                                                                                FIFTH DIVISION
                                                                                September 12, 2014


No. 1-11-3570


                                                                   )    Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                               )    Circuit Court of
                                                                   )    Cook County
                Plaintiff-Appellee,                                )
                                                                   )
v.                                                                 )    No. 05 CR 10935
                                                                   )
RAYVONNE WILSON,                                                   )
                                                                   )    Honorable
                Defendant-Appellant.                               )    Kenneth J. Wadas,
                                                                   )    Judge Presiding.


        JUSTICE REYES delivered the judgment of the court, with opinion.
        Justice Hall concurred in the judgment and opinion.
        Justice Lampkin specially concurred, with opinion.


                                              OPINION

¶1      Defendant Rayvonne Wilson appeals from an order of the circuit court of Cook County

summarily dismissing his second pro se postconviction petition (second pro se petition) for relief

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)).

Defendant contends the circuit court erred in summarily dismissing his second pro se petition.

Wilson argues: (1) his second pro se petition was not a successive petition because he only

sought to reinstate his right to a direct appeal in his initial petition; and (2) the second pro se

petition set forth the gist of an arguable claim that his appellate counsel was ineffective for

failing to raise an issue on direct appeal concerning the improper closing argument by the Cook
1-11-3570


County assistant State Attorney’s (ASA). For the reasons that follow, we affirm.

¶2                                       BACKGROUND

¶3     On September 17, 2004, defendant allegedly shot and killed Kevin Blaylock (Blaylock)

at 69th Street and Ashland Avenue in Chicago. On April 10, 2005, defendant was arrested in the

state of California and subsequently extradited to Illinois. A trial was held on February 26, 2008.

The State's case relied on the testimony of three identification witnesses: Zallassio Sain (Sain),

Eric Carter (Carter), and Rodney Ware (Ware). Throughout the proceedings, defendant

maintained he was not the shooter and challenged the credibility of Sain, Carter, and Ware.

¶4     At trial, Sain testified that in September 2004, he was living in Indiana and Wisconsin but

came to Chicago every day. On the evening of September 16, 2004, he was standing outside

70th Street and Honore Street in Chicago with a group of people, drinking cognac and smoking

marijuana. Carter and Ware were among the individuals present. Blaylock joined the group, and

shortly thereafter, Sain and Blaylock got into Sain's sister's vehicle and drove to a liquor store

and then to Sain's girlfriend's house. Subsequently, Sain called Ware because he had left his

phone charger in Ware's automobile, and then met with Ware at a restaurant located at 69th

Street and Ashland Avenue. Sain walked up to Ware's vehicle, and as he spoke to Ware, he

observed Blaylock approach them. At the same moment, Sain observed defendant for the first

time. Defendant was two feet away from Sain and was approaching Blaylock on foot. Sain

recognized defendant because he had known him for a couple of months. Sain communicated to

Blaylock to "watch out" because defendant and Blaylock had "gotten into it" a couple of weeks

before. Defendant then "upped the gun" and began shooting at Blaylock, who had started

running away from defendant. Sain heard seven or eight gunshots. Sain went to look for

Blaylock, and found him lying facedown on the ground near the restaurant with two bullet



                                                  2
1-11-3570


wounds in his back. Sain tried to place Blaylock in the vehicle so he could drive Blaylock to the

hospital, but in the meantime the police arrived and called an ambulance. When the police

questioned Sain he stated his name was "Tyrone Smith" because there were outstanding warrants

for his arrest in Wisconsin. For the same reason, Sain did not inform the police he had observed

what had happened. After the ambulance arrived, Sain left. Later that morning, Sain informed

Blaylock's grandmother he had observed the shooting. Sain testified that before he spoke with

the police he met with Carter and Ware a week or two after the shooting.

¶5     Sain further testified he was eventually arrested for the outstanding warrants and placed

in the Dane County jail in Madison, Wisconsin, where he was convicted of armed robbery and

burglary. On April 10, 2005, while Sain was in custody in Wisconsin, detectives and an ASA

from Cook County visited him and inquired as to what he had observed on September 17, 2004.

The detectives and ASA made no promises to Sain regarding his convictions in Wisconsin.

During this visit, Sain gave a handwritten statement about what he had observed and identified

defendant in a photo array as the shooter. Sain also admitted that at the time of the shooting he

was a member of the Gangster Disciples street gang.

¶6     Carter testified that when Sain and Blaylock left 70th Street and Honore Street, he, Ware,

and two other individuals drove around in Ware’s vehicle looking for some girls. After they met

with Sain at the restaurant, Carter observed Blaylock approach Ware's vehicle and heard Sain

communicate to Blaylock to "watch out." Carter then heard gunshots and observed defendant 10

feet away shooting a handgun at Blaylock. Carter heard eight or nine gunshots. Carter then

observed defendant, who he knew through a friend, running back the way he arrived. Carter,

Ware, and the two other people in Ware's automobile left the restaurant after the shooting.

Carter later spoke to Blaylock's uncle about what had happened. Carter did not speak to the



                                                 3
1-11-3570


police that day because he "wasn't trying to get involved." Carter testified he met with Sain and

Ware later that morning and discussed the shooting.

¶7     Carter further testified that on September 29, 2004, a police officer approached Carter on

the street and requested that he go to the police station, where Carter informed detectives about

what had happened and identified defendant as the shooter in a photo array. In December 2004,

after speaking to the police and an ASA, Carter gave a handwritten statement and again

identified defendant in a photo array as the shooter. On April 18, 2005, Carter testified in front

of a grand jury that defendant was the shooter.

¶8     On cross-examination, Carter further stated he had previously failed to appear in court

pursuant to a subpoena because he "didn't want to get involved." Carter admitted he had been

previously convicted of a narcotics offense in Illinois and successfully completed his sentence.

Carter acknowledged he was a member of the Gangster Disciples street gang when the shooting

occurred and at the time of this testimony.

¶9     Ware also testified about the events surrounding the shooting. Ware testified when he

and Sain were at the restaurant, Blaylock approached Ware’s vehicle and he heard Sain yell

"watch out." Ware observed defendant "standing right there," five feet away from his vehicle,

shooting at Blaylock. At the time of the incident, Ware had known defendant for approximately

a year and a half. Ware heard six or seven shots as defendant continued shooting at Blaylock

while Blaylock was running across the street. Ware did not observe anything in Blaylock’s

hands. Ware then observed Sain drive his vehicle toward Blaylock. Ware later learned from

Blaylock's uncle that Blaylock had been killed, and he informed the uncle about what he had

observed. Ware testified he met with Sain and Carter later that day and discussed the shooting

"just a little bit." Ware stated he did not go to the police immediately, but on December 1, 2004,



                                                  4
1-11-3570


he learned the police wanted to speak with him and he went to the police station. There, Ware

identified defendant in a photo array as the shooter and signed a statement. On April 18, 2005,

Ware testified at a grand jury proceeding that defendant shot Blaylock. Ware explained he had

previously failed to appear in court pursuant to a subpoena because he "was scared a little bit,"

but that he had turned himself in when he heard there was a warrant out for his arrest. Ware

admitted he had a felony narcotics conviction from 2002, for which he received probation. Ware

also admitted he was currently a Gangster Disciple.

¶ 10   Chicago police officer Maurice Conely (Officer Conely) testified that while he was on

patrol duty on September 17, 2004, at 2:30 a.m., he observed four or five individuals gathered

near 69th Street and Ashland Avenue. Officer Conely observed Blaylock lying on the sidewalk

bleeding from a gunshot wound and observed a witness who identified himself as "Tyrone

Smith" trying to place Blaylock into a vehicle. Tyrone Smith identified himself as Blaylock’s

friend and stated he heard five or six gunshots and then found Blaylock lying on the ground.

Officer Conely informed Tyrone Smith an ambulance was coming and went to the location

where the shooting had occurred. When Officer Conely returned to 69th Street and Ashland,

Tyrone Smith was gone.

¶ 11   Detective Dominick Doris (Detective Doris) of the Chicago police department testified

that while working on the investigation of Blaylock's homicide, he learned defendant had been

identified as the shooter. Efforts to locate defendant in Chicago were unsuccessful and an

investigative alert was issued. On April 10, 2005, defendant was extradited from the state of

California to Chicago, where he was arrested for Blaylock's murder on April 18, 2005. Detective

Doris also testified the cartridge casings found at the scene indicated the firearm used to kill

Blaylock was a semiautomatic handgun, but no weapon was recovered to his knowledge.



                                                  5
1-11-3570


¶ 12   Detective Glen Turner (Detective Turner) testified he became involved in the homicide

investigation on September 18, 2004. Detective Turner stated he spoke with Blaylock’s

grandmother and cousin, and they gave the street names of "Maurice," "Rod, " "Poon," "Scrill,"

"B," and "Chew" as individuals that may have observed the incident. Detective Turner testified

he was also given an address for Chew where he spoke with Beatrice Wilson, a relative of Chew,

and learned Chew’s real name was Rayvonne Wilson, the defendant. Detective Turner

confirmed that many unsuccessful attempts were made to locate defendant in Chicago.

¶ 13   Detective Luis A. Otero (Detective Otero) testified that on September 29, 2004, a

possible witness to the shooting known as Poon was brought to the police station. Detective

Otero testified Poon identified himself as Carter and picked defendant out of a photo array as

Chew, the person he observed shooting Blaylock on the night of the incident.

¶ 14   A stipulation was entered into by the parties as to the testimony of Cook County medical

examiner Eupil Choi, that Blaylock died of multiple gunshot wounds and the manner of death

was homicide. A certified copy of the postmortem exam and autopsy photographs were entered

into evidence. Another stipulation pertaining to Blaylock’s blood and urine testing negative for

narcotics and positive for alcohol was entered into by both sides. Defendant did not testify or

present any witnesses in his defense.

¶ 15   During closing argument, the ASA asserted there was no question that defendant was the

shooter because he committed the act in front of people who were Blaylock's friends and knew

defendant. The ASA contended "we know [defendant] is the individual who killed" Blaylock

because he was identified over and over by Sain, Carter, and Ware. The ASA also summarized

the reasons why the witnesses did not immediately go to the police: Sain testified he "just didn't

want to get involved" because he had outstanding warrants, Carter testified he did not want to get



                                                 6
1-11-3570


involved, and Ware testified he did not want to get involved and was afraid. The ASA further

noted that although Sain did not want to get involved, he also did not inform the police someone

else was the shooter. The ASA then stated:

               "Why, ladies and gentlemen, do you think these three individuals, who are great

       friends with Kevin Blaylock, didn't want to get involved? Because they know what this

       man is capable of."

Defense counsel objected. The trial court overruled the objection. The ASA continued with

closing argument:

               "They know that the defendant is capable of killing someone right in front of

       them. They know, and they saw the defendant pull a weapon out in front of them and

       continue to fire over and over at an unarmed man who is running away. They know that,

       ladies and gentlemen. They knew that on September 17th, so they didn't call the police.

       But what they did do is they talked to the family. *** They told the grandmother of

       Kevin Blaylock ***. They told the uncle of Kevin Blaylock ***. They had come

       forward. They had done the right thing."

¶ 16   The ASA also argued defendant "was banking on" the fact that the witnesses did not want

to be involved, which is why he killed Blaylock in the early morning hours in front of Blaylock's

friends.

¶ 17   Additionally, the ASA stated:

               "[Sain's, Carter's, and Ware's] testimony is corroborated by the physical evidence.

       And also the reasonableness of their testimony, because they feared the defendant. They

       feared him because of what they saw him do. So is it reasonable that they didn't come

       forward? Perhaps. Is it something that another individual may have done? Who knows.



                                                7
1-11-3570


       But they are individuals that live over there, they're friends with the people over there,

       and make no mistake about it, yes, they're in a gang. *** And yes, perhaps Kevin

       Blaylock was also a Gangster Disciple and was in a gang. However, this defendant

       doesn't get to choose the life worth of Kevin Blaylock."

¶ 18   Defense counsel contended the State's version of the incident did not make sense and

noted the lack of physical evidence that tied defendant to the shooting. Defense counsel also

contended the three witnesses were not believable. Further, defense counsel asserted the

evidence demonstrated defendant was older than the witnesses, and while they testified they

knew of him, that did not mean the witnesses actually knew him. Defense counsel argued the

witnesses were gang members and "kind of controlled this investigation, if you think about it."

Defense counsel asserted if Sain, Carter, and Ware had wanted to lead the police to other people

who were present, they could have done so.

¶ 19   In rebuttal, the ASA pointed to specific circumstances surrounding the shooting, asserting

Sain's alert to "watch out" meant he recognized defendant as a specific threat to Blaylock. The

ASA also commented on various pieces of evidence he asserted corroborated the witnesses'

testimony. The ASA contended the witnesses' lack of cooperation was not the type of behavior

expected from people out to frame defendant. The ASA asserted when they finally spoke with

the police, it would have been easy for the witnesses to say they did not observe anything, but

instead they informed the police what had happened. The ASA concluded by asserting that if the

jury were to look at why the witnesses tried to avoid coming to court, "it tells you one thing.

They don't want to be here, they don't want to tell the truth, but they are."

¶ 20   Following jury instructions and deliberations, the jury found defendant guilty of first

degree murder and found that during the commission of the offense, defendant personally



                                                  8
1-11-3570


discharged a firearm that proximately caused Blaylock's death. At sentencing, the trial court

found no mitigating factors applicable and found the following aggravating factors: (1)

petitioner’s conduct did cause or threaten serious harm; (2) petitioner had an "extensive" history

of prior delinquency or criminal activity; and (3) the sentence was necessary to deter others from

committing the same crime. The trial court also found that a number of defendant’s prior crimes

involved weapons and/or death to another individual, and that one case was an involuntary

manslaughter for which defendant was sentenced to the California penitentiary, and another was

an assault with a firearm. The trial court noted defendant’s "extensive" criminal background,

defendant’s "propensity to carry weapons," and that "[p]eople around [defendant] wind up dead

on more than one occasion." On May 1, 2008, the trial court sentenced defendant to the

maximum of 60 years in prison on the charge of first degree murder with a 50-year enhancement

for personally discharging a firearm.

¶ 21                               Initial Postconviction Petition

¶ 22    On May 28, 2009, defendant filed a postconviction petition in which he claimed he had

been denied effective assistance of counsel due to his trial counsel's failure to file a notice of

appeal. Defendant's petition was supported by a notarized affidavit from his trial counsel in

which trial counsel averred he was appointed to represent defendant and that defendant

expressed his desire to pursue a direct appeal. Trial counsel further attested that defendant relied

on him to execute the notice of appeal, but that he "neglected to file Wilson's notice of appeal."

On June 29, 2009, the circuit court granted defendant's requested relief and he was granted leave

to file a late notice of appeal.

¶ 23                                           Direct Appeal

¶ 24    On direct appeal, defendant argued: (1) his conviction should be reversed because the



                                                  9
1-11-3570


circuit court violated amended Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), as it did

not question the prospective jurors as to whether they understood and accepted that, defendant

was not required to produce any evidence on his own behalf, and that defendant’s failure to

testify could not be held against him; (2) the circuit court erred by not giving the jury the

definition of "reasonable doubt" when the jury requested the definition during deliberations; (3)

his sentence was excessive and should be reduced because the circuit court considered a factor

inherent in the offense; and (4) the mittimus should be corrected to reflect only one conviction

for first degree murder. On December 15, 2010, this court affirmed defendant's conviction and

sentence and corrected the mittimus to reflect one conviction for first degree murder. People v.

Wilson, No. 1-09-1815 (2010) (unpublished order under Supreme Court Rule 23).

¶ 25                           Second Pro Se Postconviction Petition

¶ 26   On June 24, 2011, defendant filed a second pro se postconviction petition. Defendant

contended his appellate counsel was ineffective for not raising his trial counsel's failure to: (1)

object to the ASA's remarks in closing argument that the witnesses feared being shot and killed

by defendant; (2) object to the ASA's misstatement of evidence that Sain feared defendant; (3)

object to the ASA's improper "shifting of the burden" to defendant; (4) object to defendant not

being present for the reading of and response to the jury's notes; and (5) raise on appeal that the

ASA improperly implied defendant "fled" the State of Illinois to avoid prosecution for the

victim's murder. Defendant's petition was signed pursuant to section 1-109 of the Code of Civil

Procedure (735 ILCS 5/1-109 (West 2010)). In addition, defendant attached an unnotarized

affidavit in which he averred no transcripts were attached to his petition because they were taken

by prison officials during a "routine cell shake-down." Defendant further averred that he "has

attempted to get the records back and have [sic] been told that the documents (transcripts) will be



                                                 10
1-11-3570


returned as soon as possible."

¶ 27      On August 19, 2011, the circuit court dismissed defendant's second pro se petition. In its

written order, the circuit court found that defendant's petition was a successive postconviction

petition. The circuit court then analyzed the petition and determined it failed to meet the "cause-

and-prejudice" test to obtain leave to file a successive petition. Specifically, the circuit court

found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the

claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert

the claims earlier because "[h]ad they been presented in the initial petition, there is scant

probability that petitioner would have prevailed." After analyzing defendant's second

postconviction petition under the cause-and-prejudice test, the circuit court stated in its

conclusion that the issues raised in defendant's petition were "frivolous and patently without

merit." On December 22, 2011, this court granted defendant's request to file a late notice of

appeal.

¶ 28                                         ANALYSIS

¶ 29      On appeal, Wilson maintains the circuit court erred in summarily dismissing his second

pro se petition. Wilson argues: (1) his second pro se petition was not a successive petition

because he only sought to reinstate his right to a direct appeal in his initial petition; and (2) the

second pro se petition set forth the gist of an arguable claim that his appellate counsel was

ineffective for failing to raise an issue on direct appeal concerning the ASA's improper closing

argument. We note that defendant does not raise the other arguments contained in his second

postconviction petition on appeal.

¶ 30                                    Standard of Review

¶ 31      The denial of a defendant's motion to file a successive postconviction petition is reviewed



                                                  11
1-11-3570


de novo. People v. Croom, 2012 IL App (4th) 100932, ¶ 21. Similarly, the standard of review

for a circuit court's decision to dismiss postconviction claims at the first stage is de novo. People

v. Williams, 186 Ill. 2d 55, 59-60 (1999); People v. Coleman, 183 Ill. 2d 366, 378 (1998). We

first turn to consider whether defendant's second postconviction petition was a successive

petition under the Act.

¶ 32                      The Characterization of the Second Postconviction Petition

¶ 33   Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f)

(West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive

petition a petitioner must first obtain leave of court by either asserting actual innocence or

satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16;

725 ILCS 5/122-1(f) (West 2010). To demonstrate cause, a defendant must identify "an

objective factor that impeded his or her ability to raise a specific claim during his or her initial

post-conviction proceedings." Id. To establish prejudice, a defendant must demonstrate "that the

claim not raised *** so infected the trial that the resulting conviction or sentence violated due

process." Id.

¶ 34   Defendant contends the circuit court erred in characterizing his second petition as

successive because his initial petition only sought to reinstate his right to a direct appeal, and,

consequently, his second petition represents the first opportunity for defendant to raise his claims

in a postconviction proceeding. Defendant relies on People v. Little, 2012 IL App (5th) 100547,

¶ 19, to support his proposition that where a defendant files an initial postconviction petition

seeking only to reinstate the right to a direct appeal that was lost due to counsel's ineffectiveness,

a subsequent petition is not a successive petition under section 122-1(f) of the Act. Defendant

further contends that because his second pro se petition was not a successive petition, the circuit



                                                  12
1-11-3570


court erred in dismissing the petition based upon the petition's failure to meet the requirements of

the cause-and-prejudice test.

¶ 35    In response, the State contends Little is not implicated in this case because the circuit

court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill.

2d 1 (2009).

¶ 36    In Little, the question before the reviewing court was whether a subsequent

postconviction petition is considered successive under the Act, where the initial petition only

sought to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness.

Little, 2012 IL App (5th) 100547, ¶ 19. The defendant filed a pro se postconviction petition

alleging his trial counsel was ineffective for failing to file a notice of appeal, despite the

defendant’s request to do so. Id. ¶ 6. The defendant requested the circuit court grant him leave

to file a late notice of appeal, which the court allowed. Id. ¶¶ 6, 8. After his appeal was

disposed, the defendant filed a second pro se postconviction petition claiming, among other

things, his appellate counsel was ineffective for proceeding on direct appeal without a complete

and adequate record. Id. ¶ 9. Noting that the defendant had already filed a " 'first petition,' " the

trial court denied what it construed as the defendant's " 'request for leave to file a successive

[postconviction] petition.' " Id. ¶ 10.

¶ 37    On appeal, the reviewing court held that when a defendant files a postconviction petition

seeking only to reinstate the right to a direct appeal that was lost due to counsel's ineffectiveness,

a subsequent postconviction petition is not considered successive under the Act. Id. ¶ 19. This

is because a defendant has a right under the Illinois Constitution to appeal a criminal conviction,

and a statutory right to "one complete opportunity" to collaterally attack his conviction with a

postconviction petition. Id. ¶ 21. Where defendant's first petition was filed only to rescue his



                                                  13
1-11-3570


right of appeal, "it was not a 'true collateral attack' and should not be counted as such." Id. The

appellate court further determined that the defendant’s second petition must be docketed for

second-stage proceedings because the trial court failed to review the second petition within 90

days to determine whether it was frivolous and patently without merit. Id. ¶¶ 23-24.

¶ 38   In this case, defendant filed the initial petition on May 28, 2009, alleging his trial counsel

was ineffective for failing to file a notice of appeal, despite defendant’s request to do so

following his conviction and sentence. On June 29, 2009, the circuit court granted defendant's

requested relief and he was allowed to file a late notice of appeal. Defendant's appeal then

proceeded and was disposed of on December 15, 2010. On June 24, 2011, defendant filed the

second pro se petition alleging, among other arguments, that his appellate counsel was

ineffective for not raising his trial counsel’s failure to object to the ASA’s remarks that the

witnesses feared being shot and killed by defendant. As the initial petition filed on May 28,

2009, was not a true collateral attack, defendant's second pro se petition filed on June 24, 2011,

was his first opportunity to seek collateral review and, therefore, was not a successive petition

for purposes of the Act. See id. ¶ 21.

¶ 39   We acknowledge that this court is not always bound by decisions of other appellate court

districts. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992). However, there

may be compelling reasons to do so when dealing with similar facts and circumstances, unless a

district has made a determination of its own contrary to that of another district. Id.; People v.

Ward, 192 Ill. App. 3d 544, 554 (1989). The facts in the present case are substantially similar to

those of Little, thereby warranting the same result. Moreover, there is an absence of prevailing

authority from our highest court as well as from the First District.

¶ 40   In addition, we agree with the Fifth District’s rationale. Under the Illinois Constitution,



                                                 14
1-11-3570


"the right to appeal a criminal conviction is fundamental." People v. Ross, 229 Ill. 2d 255, 268

(2008). Further, section 122-1(f)’s reference to "one petition *** without leave of the court"

(725 ILCS 5/122-1(f) (West 2010)) indicates one complete opportunity to collaterally attack "the

proceedings which resulted in his or her conviction" (725 ILCS 5/122-1(a)(1) (West 2010)).

Thus, where, as here, a defendant has been denied that opportunity, he should be " 'restored to

the procedural posture he would have enjoyed if he had been represented by effective counsel

who had timely filed a notice of appeal.' " Little, 2012 IL App (5th) 100547, ¶ 21 (quoting

Urinyi v. United States, 607 F.3d 318, 321 (2d Cir. 2010)). For all the aforementioned reasons,

we find no reason to depart from the Little court's holding on this issue.

¶ 41   Here, the circuit court found the second pro se petition was a successive petition. It is

unclear from its written order, however, whether the circuit court dismissed the petition based on

the cause-and-prejudice test or the frivolous-and-patently-without-merit test. Initially, the circuit

court discussed and considered the cause-and-prejudice test. However, in the concluding

paragraph of the order, the circuit court found the petition to be frivolous and patently without

merit. If the circuit court in fact treated defendant's petition as successive and applied the cause-

and-prejudice test, this rationale, pursuant to Little, would have been improper. Instead,

defendant's petition should have been considered an initial first-stage petition and reviewed

accordingly. See 725 ILCS 5/122-2.1(a)(2) (West 2010); Hodges, 234 Ill. 2d at 10. Even if

defendant's petition was reviewed for cause and prejudice, we are not required to reverse the

dismissal of defendant's petition because we can affirm for any basis that appears in the record.

See People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). For the reasons stated herein, we find

defendant's petition to be frivolous and patently without merit and affirm the trial court's

dismissal of the petition.



                                                 15
1-11-3570


¶ 42           Whether Defendant's Second Petition Was Frivolous and Patently

                                       Without Merit

¶ 43   The Act provides a remedy to criminal defendants whose federal or state constitutional

rights were substantially violated in their original trial or sentencing hearing. People v.

Pitsonbarger, 205 Ill. 2d 444, 455 (2002); 725 ILCS 5/122-1 et seq. (West 2010). In noncapital

cases, the Act creates a three-stage procedure for relief. People v. Boclair, 202 Ill. 2d 89, 99

(2002); People v. Hobson, 386 Ill. App. 3d 221, 230-31 (2008). At the first stage, the circuit

court has 90 days to review the petition and may summarily dismiss it if the trial court finds that

the petition is frivolous and patently without merit. Hodges, 234 Ill. 2d at 10. In the second

stage of a postconviction proceeding, the defendant bears the burden of making a substantial

showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Once

amendments, if any, are made to the postconviction petition, the State is then allowed to file a

motion to dismiss the petition. 725 ILCS 5/122-5 (West 2010). The circuit court must then

determine whether the petition, including any attached documents, presents a substantial

showing of a constitutional violation. 725 ILCS 5/122-6 (West 2010). If such a showing is

made, then the petition proceeds to the third stage, where the circuit court conducts an

evidentiary hearing on the merits of the petition. Id.

¶ 44   Here, defendant's petition was at the first stage where the threshold for survival is low.

Hodges, 234 Ill. 2d at 9. The petition need only present a limited amount of detail and need not

set forth the claim in its entirety. People v. Edwards, 197 Ill. 2d 239, 244 (2001). The circuit

court acts strictly in an administrative capacity by screening out those petitions that are without

legal substance or are obviously without merit. People v. Rivera, 198 Ill. 2d 364, 373 (2001).

The court will dismiss the petition if it determines the petition is frivolous or patently without



                                                 16
1-11-3570


merit (725 ILCS 5/122-2.1(a)(2) (West 2010)), meaning that it has no arguable basis in law or in

fact. Hodges, 234 Ill. 2d at 16. A petition lacks an arguable basis in law or in fact if it is based

on an indisputably meritless legal theory or a fanciful factual allegation. Id.

¶ 45   Defendant argues his petition set forth the gist of an arguable claim that his appellate

counsel was ineffective for failing to raise an issue on direct appeal concerning the ASA's

improper closing argument. Defendant further argues the ASA's remarks regarding the reason

the eyewitnesses delayed in cooperating with the authorities—fear of defendant—were not

supported by the record. Defendant also asserts these remarks amounted to the ASA's own

opinion and were an improper attempt to bolster the witnesses' credibility. Defendant

additionally asserts it is at least arguable that he would have prevailed on direct appeal because

there was no physical evidence linking defendant to the shooting, defendant did not confess, and

the three identification witnesses waited several months after the shooting before cooperating.

¶ 46   A first-stage petition claiming ineffective assistance of counsel must establish: (1) that it

is arguable that counsel's performance fell below an objective standard of reasonableness; and

(2) that it is arguable that the defendant was prejudiced by counsel's performance. Hodges, 234

Ill. 2d at 17; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The standard set out

in Strickland also applies to claims of ineffective assistance of appellate counsel. People v.

Rogers, 197 Ill. 2d 216, 223 (2001). "If a reviewing court finds that the defendant did not suffer

prejudice, it need not decide whether counsel's performance was constitutionally deficient."

People v. Buss, 187 Ill. 2d 144, 213 (1999). While generally a defendant must overcome the

strong presumption that the challenged actions of counsel were the product of sound strategy

(Strickland, 466 U.S. at 689; People v. Manning, 241 Ill. 2d 319, 327 (2011)), we do not

consider arguments related to strategy when reviewing first-stage postconviction petitions.



                                                 17
1-11-3570


People v. Tate, 2012 IL 112214, ¶ 22.

¶ 47   We turn to the question of whether defendant's petition sufficiently set forth a claim that

the ASA's closing argument was improper, such that defendant was prejudiced by his appellate

counsel's failure to raise this issue on direct appeal. Generally, an ASA has wide latitude in

making a closing argument, and may comment on the evidence and any fair, reasonable

inferences it yields, even if such inferences reflect negatively on the defendant. People v.

Nicholas, 218 Ill. 2d 104, 121 (2005). Assumptions and statements of fact not based on

evidence, however, may not be argued to the jury. People v. Armstead, 322 Ill. App. 3d 1, 14

(2001). Moreover, we consider the challenged comments in the context of the entire closing

argument of both parties. People v. Williams, 192 Ill. 2d 548, 573 (2000). While the ASA's

remarks may sometimes exceed the bounds of proper comment, the verdict must not be disturbed

unless the remarks resulted in substantial prejudice to the accused and, absent those remarks, the

verdict would have been different. People v. Byron, 164 Ill. 2d 279, 295 (1995).

¶ 48   Here, the ASA's remarks about the witnesses' reluctance to cooperate with prosecuting

authorities cannot be deemed improper. Sain, Carter, and Ware testified they did not want to get

involved after the shooting. Sain testified he was the subject of outstanding warrants, Carter

testified he did not want to get involved, and Ware testified he was "scared a little bit." The

circumstances surrounding the shooting support an inference that Sain, Carter, and Ware would

also not want to get involved because they feared defendant. All three had been in close

proximity to the incident, in which they observed defendant walk up to Blaylock and shoot him.

Immediately after the shooting, defendant fled and could still have been at large, while Sain,

Carter, and Ware remained in the area. Given the circumstances, the ASA's remarks were based

on reasonable inferences from the evidence.



                                                 18
1-11-3570


¶ 49   Even assuming for the sake of argument the comments were improper, defendant's claim

still fails because he has not demonstrated his conviction resulted from the improper comments.

Absent the ASA’s comments about the witnesses’ fear, the evidence against defendant was

overwhelming and the result of the trial would not have been different. People v. Evans, 209 Ill.

2d 194, 220 (2004). Although the three eyewitnesses did not immediately cooperate with the

police, they did inform members of defendant's family of what occurred. When the witnesses

cooperated with the investigation, they repeatedly identified defendant as the shooter. Sain

signed a statement and identified defendant as the shooter while in jail in Wisconsin, and Carter

and Ware both identified defendant as the shooter in photo arrays, signed a statement, and

testified before a grand jury. Because the ASA's comments were not a material factor in

defendant's conviction, there is no arguable basis in law for defendant's claim that his appellate

counsel was ineffective. See People v. Cole, 2012 IL App (1st) 102499, ¶ 23. Accordingly,

defendant’s claim is dismissed as frivolous and patently without merit.

¶ 50                                     CONCLUSION

¶ 51   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 52   Affirmed.




                                                 19
1-11-3570


¶ 53    JUSTICE LAMPKIN, specially concurring.

¶ 54    I concur in the judgment only. I add that the circuit court issued an eight page order in

which it first reviewed the petition as a successive petition for post-conviction relief and found

that petitioner failed to meet the "cause-and-prejudice" test required to relax the rule prohibiting

successive petitions. This analysis was completed in the first 22 pages of the circuit court's

order. The court then continued by reviewing the merits of each of petitioner's ineffective

assistance of counsel claims on pages 3 to 8, concluding as to each that they were without merit

and/or did not prejudice the petitioner. Specifically, the court found that: no prosecutorial

misconduct was committed when the State suggested in closing argument that the petitioner fled

the jurisdiction to avoid prosecution as it was supported by the evidence; petitioner was not

prejudiced by his absence in court when the court and both counsel for the State and the defense

answered two questions from the jury; the State's argument that witnesses were scared was not

improper because it was a reasonable inference to be drawn based on the evidence presented at

trial; and the State did not improperly shift the burden of proof to the petitioner.

¶ 55    The court, after addressing and finding these contentions lacked merit "decline[d] to

deem 'patently erroneous' appellate counsel's assessment of the record, and decision not to raise

those issues." The court continued by saying petitioner had failed to make the requisite showing

of either deficient performance or sufficient prejudice, thereby defeating his ineffectiveness

claim. In its conclusion on page 8 the court found that the "issues raised and presented by

petitioner are frivolous and patently without merit" and dismissed the petition.

¶ 56    The court, in my view, first addressed the petition as successive and, thereafter, clearly

addressed this petition as a first-stage petition within the first 90 days that it was on the judge's

call.



                                                  20
