                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Scott, 2011 IL App (1st) 100122




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARK SCOTT, Defendant-Appellant.



District & No.             First District, Fifth Division
                           Docket No. 1-10-0122


Filed                      September 16, 2011


Held                       In a prosecution for first degree murder, the trial court properly dismissed
(Note: This syllabus       defendant’s postconviction petition alleging that his trial counsel was
constitutes no part of     ineffective in failing to seek DNA testing of a shirt allegedly worn by the
the opinion of the court   offender and failing to investigate surprise identification testimony and
but has been prepared      also alleging that his appellate counsel was ineffective in failing to raise
by the Reporter of         the ineffectiveness of trial counsel and to challenge the sufficiency of the
Decisions for the          evidence; however, defendant’s motion for DNA testing was remanded
convenience of the         for a ruling on the motion.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 03-CR-17932; the
Review                     Hon. Thomas V. Gainer, Jr., Judge, presiding.




Judgment                   Affirmed in part; remanded in part.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Rachel M. Kindstrand, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                           Needham, and Eve Reilly, Assistant State’s Attorneys, of counsel), for
                           the People.


Panel                      JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                           Presiding Justice Garcia concurred in the judgment and opinion.
                           Justice R. Gordon specially concurred, with opinion.


                                             OPINION

¶1           Defendant Mark Scott appeals the first-stage dismissal of his postconviction petition,
        arguing that the trial court erred in finding the petition to be frivolous and patently without
        merit because he raised the gist of a meritorious claim of ineffective assistance of trial
        counsel and appellate counsel. Specifically, defendant contends that his trial counsel was
        ineffective for failing to pursue DNA testing on a blue shirt purportedly worn by the offender
        and for failing to investigate the surprise identification testimony from Officer Joseph
        Seinitz; further, appellate counsel was ineffective for failing to raise these claims of
        ineffective assistance of trial counsel and for failing to challenge the sufficiency of the
        evidence on direct appeal. Defendant also asks this court to remand his motion for DNA
        testing to the circuit court for a ruling or further testing.
¶2           Defendant was charged with the July 2003 shooting death of LaQuinn Cornell. Prior to
        trial, defendant filed a motion to suppress identification based on an overly suggestive
        showup. At the hearing on defendant’s motion, the trial court heard testimony from Yvonne
        Sanders and Talisha Sanders. Both women witnessed the shooting at 39th Street and King
        Drive on July 19, 2003. After the shooting, the women were taken to a police station and
        asked to view a suspect. They were placed in a room with two-sided glass and each viewed
        two different men, one at a time. Yvonne identified defendant as the shooter and noted that
        he was wearing a white shirt with a blue shirt draped over his shoulders. Talisha did not
        identify either of the men, but recognized the blue shirt as the one worn by the offender. The
        trial court found defendant had met his burden of establishing the pretrial identification
        procedure was unnecessarily suggestive and afforded the State the opportunity to present
        evidence to show an independent basis for the reliability of the identifications.
¶3           The State recalled Yvonne and Talisha. Yvonne testified that at approximately 7:45 p.m.
        on July 19, 2003, she was outside a restaurant at 39th and King Drive and talking to LaQuinn
        Cornell between both of their vehicles. While they were talking, Yvonne saw a man with a
        gun walk up to them. The man stood a few feet from Yvonne. She said he was wearing a blue
        shirt and blue khaki pants and she described him as having dark, short hair with a dark

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     complexion. She stated that he was around 5 feet 7 inches and weighed between 180 and 200
     pounds. Yvonne watched the man while he was shooting and at one point, the man looked
     her in the face. Yvonne had never seen this person before the shooting. After he finished
     shooting, the man ran from the scene while Yvonne called 911 and gave a description to the
     operator. Approximately 20 minutes later, Yvonne was taken to the police station for a
     showup where she identified the man she saw shoot Cornell. On cross-examination, Yvonne
     testified that she saw the shooter for approximately 30 to 40 seconds. She said she stood
     frozen while the shooting occurred. She initially took one step back, but stopped because she
     did not want to draw attention to herself.
¶4       Talisha testified that she was a passenger in her aunt Yvonne’s car at approximately 7:45
     p.m. on July 19, 2003, and was with her two-year-old nephew in the front passenger seat.
     While she was sitting in the car, she heard gunshots. She turned toward the sound of the
     gunshots, but only saw the shooter’s face for a split second before she ducked down with her
     nephew in the car. She stated that the shooter was wearing a blue shirt and was a dark-
     complected black man. She described the gun as big, shiny and silver. On cross-examination,
     Talisha testified that she did not see Yvonne when she turned toward the sound of the
     gunshots. Defendant’s attorney impeached Talisha with her grand jury testimony in which
     she stated that Yvonne was ducking down behind the car during the shooting, but Talisha
     testified that she did not remember giving that testimony.
¶5       The trial court denied defendant’s motion to suppress the identification, finding that the
     suggestiveness of the showup procedure did not affect the reliability of the identifications.
¶6       Yvonne and Talisha gave substantially similar testimony at defendant’s December 2005
     jury trial.
¶7       Officers Robert Stegmiller and Joseph Seinitz testified that they were on duty together
     with Officer Andrew Schoeff the night of July 19, 2003. Officer Seinitz was driving the
     unmarked patrol car while Officer Schoeff was in the passenger seat and Officer Stegmiller
     was in the backseat. While the officers’ car was at a traffic light at 39th Street and Martin
     Luther King Drive, they heard five to six gunshots that sounded very close. They looked in
     the direction of the gunshots and saw glass blowing out of the passenger side window of a
     van. They observed defendant running with a gun in his hand from beside the van toward an
     alley that runs between 39th Street and 40th Street. Officer Seinitz recognized defendant
     from the neighborhood and testified that he had known defendant for about nine years.
     Officer Seinitz testified that when he saw defendant running, defendant was wearing a blue
     shirt. Officer Stegmiller stated that he saw defendant wearing a white shirt.
¶8       The officers observed a red Chrysler Concord waiting in the alley with the passenger door
     open. Defendant got into the car and the car drove off at a high rate of speed. The officers
     followed the red car on a high speed chase for about 10 minutes. Eventually, the car slowed
     down to about 20 miles per hour and defendant jumped out of the car. The officers chased
     defendant and placed him under arrest. At the time of his arrest, defendant was not wearing
     a blue shirt. The driver of the car was later arrested when his car crashed into another vehicle.
     Back at the scene, Officer Seinitz was handed a blue shirt from a patrol officer.
¶9       Roscoe Bryson testified that on July 19, 2003, he was coming home from a blues festival


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       when he stopped to urinate in the alley between 39th Street and 40th Street. In the alley,
       Bryson found a nickel-plated Colt 45 revolver. Bryson took the gun home and placed it in
       his mattress. About a week later, the police came to Bryson’s home on an unrelated domestic
       battery call and Bryson gave the gun to the police. He later showed the police where he found
       the gun.
¶ 10       A firearms expert examined the gun found by Bryson with cartridge casings and bullet
       fragments from the scene and concluded that the bullets were fired by that gun. A gunshot
       residue test was administered to defendant, but the results were not sufficient to establish that
       defendant had fired a gun. Additionally, fingerprints were recovered from Cornell’s van, but
       they did not match defendant’s fingerprints. During a search of the red Chrysler Concord,
       police found nine clear plastic bags of crack cocaine hidden underneath the shift handle. The
       medical examiner testified that Cornell’s body had a total of five entrance and exit wounds
       and there was no evidence of close-range firing. The cause of death was multiple gunshot
       wounds and the manner of death was homicide.
¶ 11       Joe Duckett testified for the defense. He stated that between 7:30 p.m. and 8:30 p.m. on
       July 19, 2003, he was in a car at 39th Street and King Drive. He heard three shots and turned
       in the direction of the shots. He saw a man standing with his hand inside the driver’s side of
       a van shooting the driver at point-blank range with what Duckett described as a .38-caliber
       snub-nosed revolver. Duckett stated that he did not see a woman standing in the parking lot.
       He also said he saw a marked police car drive past the shooting without stopping. He testified
       that he went to a gas station and called a friend, who told him to return to the scene. He went
       back to the scene and told police he had witnessed the shooting.
¶ 12       Duckett testified that he went to the Area One police station and was interviewed by
       detectives. He described the shooter as about 5 feet 10 inches, with a medium brown
       complexion, “nappy curls,” about 20 to 26 years old, and wearing an aqua T-shirt and faded
       jeans. He viewed two individuals and told police that neither of them was the shooter.
       Duckett said he got into an argument with the detectives after he told them that neither of the
       men was the shooter. On cross-examination, Duckett admitted that the murder weapon was
       not a snub-nosed revolver.
¶ 13       Detective Brian Forberg testified as a rebuttal witness for the State. He said he spoke to
       Duckett the night of the shooting and Duckett told him that the shooter used a .32-caliber
       snub-nosed revolver. Detective Forberg stated that he left Duckett in an office while he made
       arrangements for him to view a lineup, but when he returned to the office, Duckett was gone.
       Detective Forberg said he never saw Duckett again that night. Detective Forberg and his
       partner, Detective John Foster, both testified that Duckett was never brought into a room to
       view two people and was never shown defendant, and they never got into an argument with
       Duckett.
¶ 14       Following deliberations, the jury found defendant guilty of first degree murder and found
       that defendant personally discharged a firearm that proximately caused someone’s death.
       Subsequently, defendant was sentenced to a term of 45 years for the murder and an additional
       term of 45 years for the handgun enhancement, for a total of 90 years.
¶ 15       On direct appeal, defendant argued that the trial court erred in denying his motion to


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       suppress the identification because the showup was unnecessarily suggestive and Yvonne’s
       identification did not have a reliable basis for identifying defendant independent from the
       suggestive showup. This court affirmed the trial court’s denial of the motion to suppress the
       identification. See People v. Scott, No. 1-06-2664 (2008) (unpublished order under Supreme
       Court Rule 23).
¶ 16        In August 2009, defendant filed his pro se postconviction petition and a motion for DNA
       testing of the blue shirt. However, the motion for DNA testing contained in the record was
       not file-stamped by the circuit court.
¶ 17        In his postconviction petition, defendant raised numerous issues, including actual
       innocence, prosecutorial misconduct, and claims of ineffective assistance of trial and
       appellate counsel. Among those claims, defendant asserted that his trial counsel was
       ineffective for failing to obtain DNA testing on the blue shirt and for failing to request a
       continuance to investigate after Officer Seinitz testified that he recognized defendant based
       on his prior interactions in the neighborhood, while his appellate counsel was ineffective for
       failing to raise these claims of ineffective assistance of trial counsel on direct appeal and for
       failing to challenge the sufficiency of the evidence on direct appeal.
¶ 18        In November 2009, the trial court summarily dismissed defendant’s postconviction
       petition in a written order. The trial court found that defense counsel’s decision not to file
       a motion for DNA testing was a matter of trial strategy and if a successful motion for DNA
       testing had been filed, it would not have impacted, altered or changed the trial. The court also
       found defendant’s claim that his trial counsel should have investigated Officer Seinitz’s
       testimony to be without merit because an investigation would not have changed Officer
       Seinitz’s testimony and any impeachment would not have affected defendant’s trial. Further,
       the court noted that the previous interactions between Officer Seinitz and defendant involved
       defendant’s criminal history and it would have been “unwise” for his trial counsel to raise
       the issue of defendant’s criminal history. As for defendant’s claim of ineffective assistance
       of appellate counsel, the trial court found that since it had determined that the underlying
       claims lacked merit, appellate counsel was not ineffective for failing to raise them on direct
       appeal. The court also concluded that appellate counsel was not ineffective for failing to raise
       the State’s failure to prove defendant guilty beyond a reasonable doubt because the evidence
       was sufficient to prove defendant guilty beyond a reasonable doubt.
¶ 19        This appeal followed.
¶ 20        On appeal, defendant argues that the trial court erred in summarily dismissing his
       postconviction petition as frivolous and patently without merit because he raised arguable
       claims of ineffective assistance of trial and appellate counsel. Defendant also asks this court
       to remand the case to the trial court for a ruling on defendant’s motion for DNA testing or
       to grant defendant’s motion outright.
¶ 21        The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1
       through 122-8 (West 2008)) provides a tool by which those under criminal sentence in this
       state can assert that their convictions were the result of a substantial denial of their rights
       under the United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)
       (West 2008); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is


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       limited to constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d
       at 380. “A proceeding brought under the [Post-Conviction Act] is not an appeal of a
       defendant’s underlying judgment. Rather, it is a collateral attack on the judgment.” People
       v. Evans, 186 Ill. 2d 83, 89 (1999). “The purpose of [a postconviction] proceeding is to allow
       inquiry into constitutional issues relating to the conviction or sentence that were not, and
       could not have been, determined on direct appeal.” People v. Barrow, 195 Ill. 2d 506, 519
       (2001). Thus, res judicata bars consideration of issues that were raised and decided on direct
       appeal, and issues that could have been presented on direct appeal, but were not, are
       considered forfeited. People v. Blair, 215 Ill. 2d 427, 443-47 (2005); Barrow, 195 Ill. 2d at
       519. The standard of review for dismissal of a postconviction petition is de novo. Coleman,
       183 Ill. 2d at 389.
¶ 22        At the first stage, the circuit court must independently review the postconviction petition
       within 90 days of its filing and determine whether “the petition is frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2002). A petition is frivolous or patently
       without merit only if it has no arguable basis in law or fact. People v. Hodges, 234 Ill. 2d 1,
       16 (2009). A petition lacks an arguable basis in law or fact if it is “based on an indisputably
       meritless legal theory,” such as one that is “completely contradicted by the record,” or “a
       fanciful factual allegation,” including “those which are fantastic or delusional.” Hodges, 234
       Ill. 2d at 16-17.
¶ 23        If the court determines that the petition is either frivolous or patently without merit, the
       court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2002). At
       the dismissal stage of a postconviction proceeding, the trial court is concerned merely with
       determining whether the petition’s allegations sufficiently demonstrate a constitutional
       infirmity that would necessitate relief under the Act. Coleman, 183 Ill. 2d at 380. At this
       stage, the circuit court is not permitted to engage in any fact-finding or credibility
       determinations, as all well-pleaded facts that are not positively rebutted by the original trial
       record are to be taken as true. Coleman, 183 Ill. 2d at 385.
¶ 24        The “gist” standard is a low threshold. People v. Edwards, 197 Ill. 2d 239, 244 (2001).
       To set forth the “gist” of a constitutional claim, the postconviction petition need only present
       a limited amount of detail and hence need not set forth the claim in its entirety. Further, the
       petition need not include legal arguments or citations to legal authority. Edwards, 197 Ill. 2d
       at 244. However, the supreme court in Hodges clarified that “gist” does not refer to the legal
       standard used in our review. “[O]ur use of the term ‘gist’ describes what the defendant must
       allege at the first stage; it is not the legal standard used by the circuit court to evaluate the
       petition, under section 122-2.1 of the Act, which deals with summary dismissals. Under that
       section, the ‘gist’ of the constitutional claim alleged by the defendant is to be viewed within
       the framework of the ‘frivolous or *** patently without merit’ test.” Hodges, 234 Ill. 2d at
       11.
¶ 25        If the circuit court does not dismiss the postconviction petition as frivolous or patently
       without merit, then the petition advances to the second stage. Counsel is appointed to
       represent the defendant, if necessary (725 ILCS 5/122-4 (West 2002)), and the State is
       allowed to file responsive pleadings (725 ILCS 5/122-5 (West 2002)). At this stage, the
       circuit court must determine whether the petition and any accompanying documentation

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       make a substantial showing of a constitutional violation. See Coleman, 183 Ill. 2d at 381. If
       no such showing is made, the petition is dismissed. If, however, a substantial showing of a
       constitutional violation is set forth, then the petition is advanced to the third stage, where the
       circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2002).
¶ 26       Defendant contends that the trial court erred in dismissing his postconviction petition
       because he presented arguable claims of ineffective assistance of trial and appellate counsel.
¶ 27       Claims of ineffective assistance of counsel are resolved under the standard set forth in
       Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test also applies to claims of
       ineffective assistance of appellate counsel. People v. Rogers, 197 Ill. 2d 216, 223 (2001). In
       Strickland, the Supreme Court delineated a two-part test to use when evaluating whether a
       defendant was denied the effective assistance of counsel in violation of the sixth amendment.
       Under Strickland, a defendant must demonstrate that counsel’s performance was deficient
       and that such deficient performance substantially prejudiced defendant. Strickland, 466 U.S.
       at 687. To demonstrate performance deficiency, a defendant must establish that counsel’s
       performance fell below an objective standard of reasonableness. People v. Edwards, 195 Ill.
       2d 142, 163 (2001). In evaluating sufficient prejudice, “[t]he defendant must show that there
       is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different. A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.” Strickland, 466 U.S. at 694. If a case may be
       disposed of on the ground of lack of sufficient prejudice, that course should be taken, and the
       court need not ever consider the quality of the attorney’s performance. Strickland, 466 U.S.
       at 697.
¶ 28       A defendant who claims that appellate counsel was ineffective for failing to raise an issue
       on appeal must allege facts demonstrating such failure was objectively unreasonable and that
       counsel’s decision prejudiced defendant. Rogers, 197 Ill. 2d at 223. Appellate counsel is not
       obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel
       to refrain from raising issues which, in his or her judgment, are without merit, unless
       counsel’s appraisal of the merits is patently wrong. People v. Simms, 192 Ill. 2d 348, 362
       (2000). Thus, the inquiry as to prejudice requires that the reviewing court examine the merits
       of the underlying issue, for a defendant does not suffer prejudice from appellate counsel’s
       failure to raise a nonmeritorious claim on appeal. Simms, 192 Ill. 2d at 362. Appellate
       counsel’s choices concerning which issues to pursue are entitled to substantial deference.
       Rogers, 197 Ill. 2d at 223.
¶ 29       At the first stage of postconviction proceedings, a petition alleging ineffective assistance
       of counsel may not be dismissed if: (1) counsel’s performance arguably fell below an
       objective standard of reasonableness; and (2) the petitioner was arguably prejudiced as a
       result. Hodges, 234 Ill. 2d at 17.
¶ 30       Defendant contends that his trial counsel was ineffective for failing to pursue DNA
       testing on the blue shirt because the results of the testing were potentially exculpatory.
       Defendant asserts that the presence or absence of his DNA on the blue shirt is highly relevant
       to the case as the presence of someone’s DNA other than defendant’s on the shirt suggests
       that someone else was the shooter.


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¶ 31        However, at this time, defendant cannot establish prejudice under Strickland. Any
       argument regarding exculpatory evidence contained on the blue shirt is speculative. Since
       no test has been performed, we do not know if sufficient DNA is on the shirt and able to be
       tested let alone whether the results would be exculpatory. Further, the record shows that the
       blue shirt was handled by multiple individuals during its recovery and was later placed on
       defendant’s shoulders during a lineup. Without test results, we cannot say whether a
       reasonable probability exists that the result of defendant’s trial would have been different
       such that defendant was prejudiced. Any opinion would be advisory since at this juncture,
       no exculpatory evidence exists. Generally, a reviewing court must avoid issuing any advisory
       opinions. People v. Hampton, 225 Ill. 2d 238, 245 (2007). Accordingly, defendant’s claim
       of ineffective assistance of trial counsel for failure to pursue DNA testing lacks merit. For
       the same reasons, defendant’s claim of ineffective assistance of appellate counsel fails as
       well.
¶ 32        However, defendant may pursue a successive postconviction petition to advance a claim
       of ineffective assistance of trial counsel based on any DNA test results if he can meet the
       cause and prejudice test. See 725 ILCS 5/122-1(f) (West 2010).
¶ 33        Next, defendant asserts that his trial counsel was ineffective for failing to investigate the
       surprise identification testimony from Officer Seinitz at trial. Defendant contends that his
       trial counsel should have requested a continuance in light of the State’s violation of Supreme
       Court Rule 412 (Ill. S. Ct. R. 412 (eff. Mar. 1, 2001)) by failing to disclose an identification
       witness. Defendant also argues that his appellate counsel was ineffective for failing to raise
       this claim of ineffective assistance of trial counsel on direct appeal.
¶ 34        At trial, Officer Seinitz testified that he was on duty and near the area of 39th and King
       Drive when he heard gunshots. He looked toward the sound of the gunshots and saw
       defendant running from the scene with a gun in his hand. Officer Seinitz stated that he
       recognized defendant from the neighborhood and had known defendant for nine years. At
       this point, defendant argues that his trial counsel should have sought a continuance because
       the State had not previously disclosed Officer Seinitz as an identification witness, a violation
       of Rule 412. However, the State had disclosed Officer Seinitz as a possible witness.
¶ 35        Supreme Court Rule 412 provides, in relevant part:
                     “(a) Except as is otherwise provided in these rules as to matters not subject to
                disclosure and protective orders, the State shall, upon written motion of defense
                counsel, disclose to defense counsel the following material and information within
                its possession or control:
                          (i) the names and last known addresses of persons whom the State intends to
                     call as witnesses, together with their relevant written or recorded statements,
                     memoranda containing substantially verbatim reports of their oral statements, and
                     a list of memoranda reporting or summarizing their oral statements.” Ill. S. Ct.
                     R. 412(a)(i) (eff. Mar. 1, 2001).
¶ 36        The supreme court in People v. Jones, 153 Ill. 2d 155 (1992), declined to extend the
       requirements of Rule 412 to include specifications as to the categorization of witnesses. In
       that case, the defendant’s motion for discovery listed a request for witnesses, occurrence

                                                  -8-
       witnesses and identification witnesses, but the State responded with a general list of possible
       witnesses, naming anyone named in multiple documents including police reports. The
       defendant argued that this response to his motion did not comply with Rule 412, but the
       supreme court disagreed. Jones, 153 Ill. 2d at 162-63.
                “The rule very specifically delineates the materials which the State must turn over to
                defense counsel upon request, including the names of possible witnesses. However,
                nowhere does it indicate that a defendant may demand from the State the
                categorization that the defendant did here, and the State was under no obligation to
                provide this breakdown. We reject the invitation to expand the State’s discovery
                obligations to include classification of witnesses in any manner and detail that a
                defendant’s whim might direct. The State satisfied the requirements of the rule.”
                Jones, 153 Ill. 2d at 163.
¶ 37       Defendant acknowledges the supreme court’s holding in Jones, but asserts that Jones was
       wrongly decided and “is contrary to the spirit of the discovery rules and notions of
       fundamental fairness.” We disagree. Under Rule 412, the State is under no obligation to
       specify the types of witnesses it may call at trial, including identification witnesses.
       Moreover, even if we disagreed with the holding in Jones, which we do not, we lack the
       authority to overrule the supreme court’s prior holding. “The appellate court lacks authority
       to overrule decisions of this court, which are binding on all lower courts.” People v. Artis,
       232 Ill. 2d 156, 164 (2009).
¶ 38       Since the State did not violate discovery, trial counsel had no basis to request a
       continuance. Further, trial counsel engaged in effective representation regarding Officer
       Seinitz’s testimony. Immediately after Officer Seinitz identified defendant, trial counsel
       requested a sidebar and the parties discussed the basis of Officer Seinitz’s recognition of
       defendant. The prosecutor indicated that the officer knew defendant from the neighborhood
       because defendant was in a gang and the officer had had previous interactions with
       defendant’s associates. The trial court limited the basis of Officer Seinitz’s knowledge to
       statements that he knew defendant from the neighborhood.
¶ 39       On cross-examination, counsel questioned Officer Seinitz about his identification of
       defendant as the person running from the scene. He asked why the identification was not
       contained in his signed police reports. Counsel also asked Officer Seinitz about the fact that
       the officer did not see the shots being fired. Defense counsel questioned Officer Seinitz about
       his view of the scene and how his recollection differed from the other officers. Trial counsel
       properly cross-examined Officer Seinitz about his identification testimony and challenged
       the officer’s recollection. Defendant contends that his attorney did not question Officer
       Seinitz about his prior interactions with defendant over nine years, but as the prosecutor
       noted in the sidebar, such questions would have elicited responses involving defendant’s
       criminal history and gang membership. His attorney wisely opted not to ask questions that
       would have harmed defendant. Under these circumstances, we conclude that defendant’s trial
       counsel was not ineffective for failing to investigate Officer Seinitz’s identification
       testimony. The State did not violate discovery rules and defense counsel effectively cross-
       examined Officer Seinitz about his identification and what he witnessed in regard to the
       shooting. Accordingly, this claim of ineffective assistance of trial counsel fails. Because trial

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       counsel was not ineffective, appellate counsel was not ineffective for failing to raise this
       claim on direct appeal.
¶ 40        Finally, defendant argues that his appellate counsel was ineffective for failing to
       challenge the sufficiency of the evidence in his direct appeal.
¶ 41        A defendant who claims that appellate counsel was ineffective for failing to raise an issue
       on appeal must allege facts demonstrating such failure was objectively unreasonable and that
       counsel’s decision prejudiced defendant. Rogers, 197 Ill. 2d at 223. Appellate counsel is not
       obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel
       to refrain from raising issues which, in his or her judgment, are without merit, unless
       counsel’s appraisal of the merits is patently wrong. People v. Simms, 192 Ill. 2d 348, 362
       (2000). Thus, the inquiry as to prejudice requires that the reviewing court examine the merits
       of the underlying issue, for a defendant does not suffer prejudice from appellate counsel’s
       failure to raise a nonmeritorious claim on appeal. Simms, 192 Ill. 2d at 362. Appellate
       counsel’s choices concerning which issues to pursue are entitled to substantial deference.
       Rogers, 197 Ill. 2d at 223.
¶ 42        Defendant contends that his appellate counsel was ineffective for failing to challenge the
       sufficiency of the evidence on direct appeal because he had a meritorious claim that the State
       did not prove him guilty of murder beyond a reasonable doubt. The State maintains that there
       is no merit to this claim of ineffective assistance of appellate counsel because a rational trier
       of fact could have found defendant guilty of murder.
¶ 43        When this court considers a challenge to a criminal conviction based upon the sufficiency
       of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305,
       329-30 (2000). Rather, our inquiry is limited to “whether, after viewing the evidence in the
       light most favorable to the prosecution, any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson
       v. Virginia, 443 U.S. 307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It
       is the responsibility of the trier of fact to “fairly *** resolve conflicts in the testimony, to
       weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
       Jackson, 443 U.S. at 319.
¶ 44        The reviewing court must carefully examine the record evidence while bearing in mind
       that it was the fact finder who saw and heard the witnesses. People v. Cunningham, 212 Ill.
       2d 274, 280 (2004). Testimony may be found insufficient under the Jackson standard, but
       only where the record evidence compels the conclusion that no reasonable person could
       accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280. However, the fact a
       judge or jury did accept testimony does not guarantee it was reasonable to do so. Reasonable
       people may on occasion act unreasonably. Therefore, the fact finder’s decision to accept
       testimony is entitled to great deference but is not conclusive and does not bind the reviewing
       court. Cunningham, 212 Ill. 2d at 280. Only where the evidence is so improbable or
       unsatisfactory as to create reasonable doubt of the defendant’s guilt will a conviction be set
       aside. Hall, 194 Ill. 2d at 330.
¶ 45        Here, the evidence at trial was sufficient to prove defendant guilty beyond a reasonable
       doubt of first degree murder. Yvonne testified that she was standing next to Cornell and they


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       were engaged in a conversation when defendant walked up and shot Cornell multiple times.
       Yvonne stated that she stood still in shock and looked directly at defendant. She immediately
       called police and reported the shooting. Officers Seinitz, Stegmiller and Schoeff were
       stopped at the intersection of 39th and King Drive when they heard gunshots. Officer Seinitz
       looked in the direction of the gunshots and saw glass shattering in a van. He saw a man
       running from the scene, and he was in a blue shirt and carrying a gun. Officer Seinitz
       recognized the man as defendant, whom he knew previously from the neighborhood. The
       officers drove toward defendant and observed him get into a red Chrysler Concord. The
       officers then followed the red car and a police chase continued. Eventually, the car slowed
       and defendant jumped from the car. After a foot chase, defendant was arrested. The driver
       of the red car was also arrested after he crashed his car. The gun used in the shooting was
       found in the alley between 39th and 40th. The police recovered the weapon from Roscoe
       Bryson during an unrelated domestic dispute.
¶ 46       In defense, defendant presented the testimony of Joe Duckett. Duckett testified that he
       saw the shooting and defendant was not the offender. He stated that he viewed a lineup and
       told the police that defendant was not the shooter. The officers told him to go home and they
       would contact him, but Duckett was not contacted. However, the State presented rebuttal
       testimony from Detective Forberg. Detective Forberg stated Duckett never viewed a lineup.
       Further, he stated that Duckett was placed in an interview room for an hour while the
       investigation continued. When the detective returned to the room, Duckett was gone.
¶ 47       After viewing the evidence presented in the light most favorable to the prosecution, we
       find that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.
       Eyewitnesses identified defendant as the shooter and defendant was seen fleeing the crime
       scene. Defendant was arrested immediately after the crime after a chase. Though defendant
       contends that the absence of forensic evidence supports his claim, we disagree. The jury at
       defendant’s trial heard the witness testimony as well as the forensic evidence. It was the
       jury’s responsibility to consider the evidence presented at trial, and we will not substitute our
       judgment for the jury’s finding. The State presented sufficient evidence to prove defendant
       guilty of first degree murder beyond a reasonable doubt and appellate counsel was not
       ineffective for failing to raise this nonmeritorious issue on direct appeal. Therefore,
       defendant’s claim of ineffective assistance of appellate counsel fails.
¶ 48       Finally, we consider the issue of defendant’s motion for DNA testing. In his filing with
       the trial court, defendant included a “Motion for Forensic Testing DNA” between his more
       than 50-page pro se postconviction petition and his unsworn affidavit in support of his
       postconviction petition. This motion was not file-stamped by the clerk of the circuit court.
       In his motion, defendant requested “DNA testing that would exonorate [sic]” defendant by
       testing the blue shirt recovered near the crime scene and introduced at trial. Though
       defendant does not refer to the statute providing for the filing of a motion for DNA testing,
       we recognize that a defendant may file a motion for forensic testing pursuant to section 116-3
       of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2008)). We note that
       a section 116-3 motion for DNA testing “seeks to initiate a separate proceeding, independent
       of any claim for post-conviction or other relief.” People v. Savory, 197 Ill. 2d 203, 210
       (2001).

                                                 -11-
¶ 49        However, the trial court did not specifically reference this motion in its written order
       dismissing defendant’s postconviction petition. The trial court did refer to the blue shirt and
       DNA testing in its analysis of defendant’s claims of actual innocence, which was abandoned
       on appeal, and ineffective assistance of trial counsel. It is unclear to this court if the trial
       court denied defendant’s motion for DNA testing or simply did not rule at all. In its order,
       the court found that the results of a DNA test on the blue shirt would not constitute newly
       discovered evidence to support a claim of actual innocence because the T-shirt and the
       procedure were available to defendant at the time of trial. Since we cannot ascertain a clear
       ruling by the trial court on defendant’s motion for DNA testing, we remand this case to the
       trial court for the limited purpose of conducting a hearing on defendant’s pro se motion for
       DNA testing.
¶ 50        Based on the foregoing reasons, we affirm the trial court’s dismissal of defendant’s pro
       se postconviction petition and remand defendant’s motion for DNA testing, attached to his
       postconviction petition, for a hearing in the trial court.

¶ 51      Affirmed in part; remanded in part.

¶ 52       JUSTICE ROBERT E. GORDON, specially concurring:
¶ 53       I concur in affirming the dismissal of defendant’s postconviction petition and in
       remanding the case to the trial court for a decision on the DNA motion. However, I must
       write separately for two reasons.
¶ 54       First, unlike the majority, I find that the trial court decided defendant’s DNA motion and
       that, in deciding the motion, applied the wrong legal standard. Thus, I would remand the
       DNA motion to the trial court for the purpose of making a determination utilizing the correct
       standard, which is set forth in section II of this concurrence.
¶ 55       Second, unlike the majority, I find that it is premature to decide defendant’s claim of
       ineffective assistance of counsel on the DNA issue, until there is a ruling on the need for
       DNA testing and, if needed, after the DNA testing is conducted and the results are conveyed
       to defendant. Although I would affirm the dismissal of defendant’s postconviction petition,
       I would find only that it lacks merit at this time and refrain from issuing an advisory opinion
       on counsel’s effectiveness or resulting prejudice on the DNA issue. If the DNA results are
       helpful to defendant, he can file a successive postconviction petition.

¶ 56                                    I. State’s Arguments
¶ 57      The State argues that we lack the jurisdiction to rule on defendant’s DNA motion
       because: (1) it was not file-stamped; (2) the trial court did not issue a separate order on the
       need for DNA testing; and (3) defendant’s notice of appeal did not specifically mention the
       DNA motion. For the following reasons, I do not find these factual arguments persuasive.

¶ 58                                     A. File-Stamped
¶ 59      I find that the evidence in the record supports the conclusion that the DNA motion was

                                                -12-
       filed in the trial court.
¶ 60       First, defendant’s “Verified Petition,” which was file-stamped, repeatedly asked the trial
       court to: “See DNA motion.” These statements support the conclusion that the motion was
       attached to the petition.
¶ 61       Second, although the DNA motion was not separately file-stamped, neither were two
       other documents that were apparently also attached to the petition. These documents were
       a complaint from another case and defendant’s affidavit in support of his postconviction
       petition.
¶ 62       Third, the order of the documents as they appear in the appellate record supports the
       conclusion that the DNA motion was filed with the file-stamped petition. The DNA motion
       appears sandwiched between the petition and its supporting affidavit, with the petition on one
       side and the petition’s supporting affidavit on the other side.
¶ 63       Fourth, the trial court could not have reviewed the postconviction petition without the
       affidavit. Section 122-1 of the Code of Criminal Procedure of 1963 requires the petition to
       be accompanied by an affidavit which verifies the petition. 725 ILCS 5/122-1(b) (West
       2010). As noted, these two documents, which were a statutorily required pair, sandwiched
       the DNA motion.
¶ 64       Fifth, the DNA motion appears in the official court record which was prepared and
       certified for our review by the clerk of the circuit court.
¶ 65       Sixth, I cannot find fault with a pro se prisoner for mailing his postconviction petition
       and his DNA motion together.
¶ 66       For all these reasons, I find that the record supports the inescapable conclusion that the
       DNA motion was filed in the trial court.
¶ 67       In addition and as a separate reason for considering the DNA issue, I observe that
       defendant’s petition made its own request for DNA testing.

¶ 68                                     B. Trial Court’s Ruling
¶ 69       I also find that the trial court did make a ruling on the need for DNA testing.
¶ 70       First, the trial court’s order tracked the organization of defendant’s petition. Defendant’s
       petition had two sections. The first section was entitled “I. Actual Innocence” which stated
       “See DNA motion.” The second section was entitled “II. Actual Innocence[–]Perjured
       Testimony.”
¶ 71       Defendant’s first section was solely “a request for DNA testing,” accompanied by an
       explanation of what the “DNA tests will reveal” and how these results would prove him
       innocent. Defendant stated unambiguously that he was “requesting DNA on the Blue T-shirt
       in question.”
¶ 72       Under a heading entitled “issues presented for reversal,” defendant’s petition listed the
       issues that he was asking the trial court to decide. The entire description of defendant’s
       primary issue appears below:



                                                -13-
                                                   “I.
                                      ACTUAL INNOCENCE
                    DNA results from the blue T-shirt that was submitted into evidence used to
                convict Mr. Scott, in that he wore this ‘blue shirt,’ [people’s exhibit #6], during the
                shooting death of the victim. (See DNA Motion)”1
¶ 73        Defendant’s petition also contained a heading entitled “Arguments of Issues” where he
       presented the legal arguments supporting the two issues that he had just listed. His first
       argument begins:
                   “I. ACTUAL INNOCENCE (see also motion for dna testing)
                    DNA results will reveal that the Blue T-shirt that was submitted as evidence
                against Mr. Scott, did not belong to Mr. Scott, and as such he never wore that Blue
                Shirt ***.”
       In this section, defendant then states: “Mr. Scott is requesting DNA on the Blue T-shirt in
       question ***.”
¶ 74        Just like defendant’s petition, the trial court’s order had two sections which were both
       entitled “Actual Innocence.” The order’s first section, entitled “1. Actual Innocence,”
       explained why DNA testing was not needed. The order’s second section, entitled “2. Actual
       Innocence,” discussed defendant’s claim of perjured testimony.
¶ 75        Defendant’s first section was a request for DNA testing, and the trial court’s first section
       was a response to that request.
¶ 76        However, the trial court collapsed into one issue: defendant’s request for DNA testing
       and his claim of innocence based on what the tests would show. In essence, the trial court
       ruled that DNA testing was unnecessary because, even with it, any claim of innocence would
       fail.
¶ 77        We have previously noticed a tendency by trial courts to collapse their ruling into one
       issue on: a postconviction claim of actual innocence and a motion for postconviction DNA
       testing. People v. Henderson, 343 Ill. App. 3d 1108, 1120 (2003). In Henderson, we
       observed that “the trial court in the instant case essentially held that, assuming that the
       requested [DNA] testing resulted in a non-match ***, this result would not be materially
       relevant to the defendant’s assertion of actual innocence.” Henderson, 343 Ill. App. 3d
       at1120. Although we expressed concerns in Henderson about “a shortcut that ‘collapses’ the
       required steps in the inquiry,” we still reviewed the trial court’s DNA ruling separately, as
       I would do in the case before us. Henderson, 343 Ill. App. 3d at 1120-1121 (reversing the
       trial court’s denial of defendant’s request for DNA testing and remanding for testing).
¶ 78        Second, the trial court did, in fact, make a ruling on the need for DNA testing. The trial
       court held that, even if the blue shirt were tested and it did not contain defendant’s DNA and
       “the court were to take this as meaning that he was not wearing the t-shirt on the night of the
       shooting,” this evidence would not have “enough” of an impact “to change the result of
       petitioner’s trial.” Although it would have been the better practice to place this finding in a

               1
                   The underlining and boldface appear in the original, as does the bracketed information.

                                                    -14-
       separate order, we still have the authority to review it.

¶ 79                                      C. Notice of Appeal
¶ 80        I also find that the notice of appeal was sufficient to give us jurisdiction to review the
       trial court’s finding. The trial court’s DNA ruling was contained in a written order which was
       dated November 25, 2009, and entered on the half-sheet as “PC Petition Dismissed.”
       Defendant’s notice of appeal identified this order by its date and described the “nature of
       [the] order” as the “dismissal of [a] postconviction petition.” Thus, the notice adequately
       identified the order appealed from, and on appeal we have the power to reverse, affirm or
       modify any part of the “order from which the appeal is taken.” Ill. Sup. Ct. R. 615(b).
¶ 81        The State cites In re V.M., 352 Ill. App. 3d 391, 397 (2004), for the proposition that “we
       acquire no jurisdiction *** to review parts of judgments not specified or fairly inferred from
       the notice of appeal.” However In re V.M. is completely distinguishable. Since it was a civil
       case, we were quoting and interpreting Supreme Court Rule 303, which governs the form and
       contents of a notice of appeal in civil cases only. In re V.M., 352 Ill. App. 3d at 397; see also
       Ill. Sup. Ct. R. 303(b)(2) (eff. May 30, 2008). There is a completely different supreme court
       rule, namely, Supreme Court Rule 606, which governs the form and content of a notice of
       appeal in criminal cases. Ill. Sup. Ct. R. 606(d) (eff. Mar. 20, 2009).
¶ 82        Supreme Court Rule 303 provides that a civil notice of appeal “shall specify the
       judgment or part thereof or other orders appealed from.” (Emphasis added.) Ill. Sup. Ct. R.
       303(b)(2) (eff. May 30, 2008). By contrast, this provision does not appear in Supreme Rule
       606. In fact, there is not even a space on the Rule 606 form to specify parts of orders. The
       Rule 606 form asks the defendant to describe the “nature of order” appealed from and only
       if the appeal is not from a conviction. Ill. Sup. Ct. R. 606(d) (eff. Mar. 20, 2009). The
       purpose of this requirement is clearly to identify the order at issue, not which part of the
       order. Thus, I do not find the State’s argument persuasive.
¶ 83        In addition, as I noted above, Supreme Court Rule 615, which specifies our “powers” on
       review in criminal cases, does not speak of parts of orders. Instead, it provides us the
       authority to review the entire “order from which the appeal is taken.” Ill. Sup. Ct. R. 615(b).
       Thus, I find that we have the authority to review a ruling contained in the November 25,
       2009, order named in the notice of appeal.

¶ 84                                     II. Need for Remand
¶ 85       The trial court decided the need for DNA testing based on two grounds: (1) the
       availability of the procedure at the time of defendant’s trial; and (2) the likelihood that the
       evidence would probably not “change the result of the trial.” However, neither of these
       grounds exists in the current statute.
¶ 86       As for the first ground, the statute was revised in 2007 to eliminate the requirement that
       “the technology for the testing was not available at the time of the trial.” Compare 725 ILCS
       5/116-3(a) (West 1998), with 725 ILCS 5/116-3(a) (West 2008). Instead, the statute now
       permits testing if the evidence “was not subject to the testing which is now requested.” 725


                                                 -15-
       ILCS 5/116-3(a)(1) (West 2010). Since the blue shirt was not previously subjected to DNA
       testing, the prior availability of DNA testing is no longer a bar to defendant’s request.
¶ 87        As for the second ground, the statute was specifically amended in 2003 to add that a
       defendant was entitled to testing “even though the results may not completely exonerate the
       defendant.” Compare 725 ILCS 5/116-3(c)(1) (West 2002), with 725 ILCS 5/116-3(c)(1)
       (West 2004). Thus, defendant must show that the test is “materially relevant” to his
       innocence claim, but he does not have to show that the result will probably exonerate him
       at trial, as the trial court held.
¶ 88        Since the trial court decided the need for DNA testing on these two grounds, it never
       made a ruling on the other requirements of the statute, which are discussed below.
¶ 89        The current postconviction testing statute requires defendants to make “a prima facie
       case” that (1) identity was the issue at trial; and (2) the chain of custody has been sufficiently
       preserved. 725 ILCS 5/116-3(b) (West 2010). After defendant makes this prima facie
       showing, the statute states that the trial court “shall” order the testing if it determines that (1)
       the test has the potential to produce new, noncumulative and materially relevant evidence;
       and (2) the test has been “generally accepted within the relevant scientific community.” 725
       ILCS 5/116-3(c)(1), (c)(2) (West 2010).
¶ 90        Although a reviewing court has the authority to review a DNA motion under a de novo
       standard,2 I think the better course of action would be to remand to permit briefing before the
       trial court on the requirements of the current statute and to permit a clear ruling by the trial
       court. The majority also agrees to the need for a remand, although for different reasons.

¶ 91                       III. Premature to Decide Ineffective Assistance
¶ 92       Where the majority and I part company is that I find that it is premature to evaluate the
       DNA issue raised by defendant in support of his claim that he was denied an effective
       assistance of counsel.
¶ 93       Defendant claimed ineffective assistance of trial and appellate counsel on the grounds
       that counsel failed to pursue the issues of DNA testing, of investigating a surprise
       identification witness and of challenging the sufficiency of the evidence.
¶ 94       The majority rejected the DNA ground, finding that he could not establish prejudice at
       this time, without the results of testing on the blue shirt. Since counsel’s performance, and
       any resulting prejudice, must be analyzed in terms of the entire record, I find that we would
       be issuing a merely advisory opinion in the absence of a DNA ruling. Thus, I would find only
       that his petition lacks merit at this time and refrain from issuing an advisory opinion until the
       DNA issue has been conclusively resolved. As the majority points out, defendant can file a


               2
                The DNA postconviction statute requires a trial court to allow postconviction DNA testing
       if the defendant can make out “a prima facie case” for such testing. 725 ILCS 5/116-3(b) (West
       2010). Because a trial court’s ruling on a motion for postconviction DNA testing is not based on an
       assessment of the credibility of witnesses but on its review of the pleadings and trial transcripts, this
       court applies a de novo standard of review. Henderson, 343 Ill. App. 3d at 1115.

                                                    -16-
       successive postconviction petition. Cf. Henderson, 343 Ill. App. 3d at 1121 (“the factors” to
       be considered in a claim of actual innocence are “really more appropriately addressed in
       postconviction proceedings when the results of the testing may be considered”).
¶ 95       As the majority observed, “[a]ny argument regarding exculpatory evidence is ***
       speculative. Since no test has been performed, we do not know if sufficient DNA is on the
       shirt and able to be tested let alone whether the results would be exculpatory. *** Without
       test results, we cannot say whether a reasonable probability exists that the result of
       defendant’s trial would have been different such that defendant was prejudiced. Any opinion
       would be advisory since at this juncture, no exculpatory evidence exists.” Supra ¶ 31.
¶ 96       I agree completely with the majority when it states that any opinion at this time “would
       be advisory,” and that “a reviewing court must avoid issuing any advisory opinions.” Supra
       ¶ 31. The Act permits defendant to pursue a successive postconviction petition to advance
       a claim based on any test results, including a claim for ineffective assistance of counsel if he
       can satisfy the cause and prejudice test (725 ILCS 5/122-1(f) (West 2010)) or a claim for
       actual innocence if he can satisfy the test set forth in People v. Ortiz, 235 Ill. 2d 319 (2010).
       Since the “reasonable probability” of a different result must be examined on the basis of the
       entire record, I would hesitate to conduct a piecemeal analysis of the DNA issue now which
       may only come back to haunt us later. In any event, I would find that the majority’s
       assessment today would not bar us from a future assessment of cumulative error,
       performance or prejudice.

¶ 97                                        IV. Conclusion
¶ 98       For all these reasons, I would find that the trial court decided defendant’s DNA motion
       and that, in deciding the motion, the trial court applied the wrong legal standard. I would
       reverse the trial court’s DNA ruling and remand to the trial court for the purpose of making
       a determination utilizing the correct standard.
¶ 99       Although I would affirm the dismissal of defendant’s postconviction petition, I would
       find only that it lacks merit at this time and refrain from issuing an advisory or piecemeal
       opinion.




                                                 -17-
