                                          2015 IL App (3d) 130489

                               Opinion filed October 16, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-13-0489
            v.                                         )       Circuit No. 06-CF-536
                                                       )
     CORRIE WALLACE,                                   )
                                                       )       Honorable Daniel J. Rozak,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices O'Brien and Wright concurred in the judgment and opinion.


                                                 OPINION

¶1          In October 2008, a Will County jury convicted defendant, Corrie Wallace, of first-degree

     murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)) and aggravated battery with a firearm (720

     ILCS 5/12-4.2(a)(1) (West 2006)). The court sentenced defendant to 70 years for first-degree

     murder and 18 years for aggravated battery to be served consecutively. Defendant subsequently

     raised nine issues on direct appeal; this court affirmed his conviction and sentences. People v.

     Wallace, 2011 IL App (3d) 090500-U. In May 2013, defendant filed a postconviction petition,

     which the trial court dismissed as frivolous and patently without merit. Defendant appeals the

     dismissal of his postconviction petition arguing: (1) he set forth an arguable claim of actual
     innocence; and (2) he stated the gist of an ineffective assistance of counsel claim. We disagree

     and affirm the trial court’s summary dismissal of defendant’s postconviction petition.

¶2                                            BACKGROUND

¶3          We provide a summary of the evidence presented at trial here. For a more detailed

     account of the evidence, reference our previous decision. Id. ¶¶ 6-31.

¶4          The evidence at defendant’s trial showed that the victim in this case, Hallie Parish, was in

     a vehicle with three other people when he was shot and killed by the defendant in March 2006.

     Most notably, among those present in the vehicle with the victim were Joe Williams and Charles

     McAfee. Neither Williams nor McAfee could identify the shooter. Williams was also shot

     during the incident, but survived. Williams later claimed he received an apology from a person

     claiming to be the shooter, though Williams refused to identify that person other than to say it

     was not the defendant. The trial court would not allow Williams to testify about this alleged

     conversation at trial. We note this issue was raised by defendant on direct appeal, but deemed a

     forfeited issue by this court. Id. ¶¶ 54-56.

¶5          Tonya Dandridge’s and Zatella Bridge’s testimony at trial established that defendant shot

     the victim while wearing a mask, immediately ran away from the scene, walked back up to the

     victim shortly thereafter without the mask or gun, and taunted him before walking away again.

     Their testimony also established that defendant ran away from the scene using the same path he

     used to approach before the shooting, and returned by way of the same path once again when he

     taunted the victim. Police later discovered that this path led to the home of Tarnisha Davenport.

¶6          Officer Stubler, the first responding officer, testified that he overheard people identifying

     defendant as the shooter while he was protecting the crime scene in the immediate aftermath of

     the shooting. Stubler located defendant and detained him shortly thereafter behind Davenport’s



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     residence. Defendant matched the description of the shooter (in build as well as clothing) as

     provided by witnesses on the scene that could not identify defendant. Defendant was told he was

     under arrest and transported from the crime scene to the police department approximately 45

     minutes after being detained by Officer Stubler.

¶7          When arrested, defendant possessed a key to Davenport’s home. In Davenport’s home,

     police located a mask (described by witnesses as being worn by the shooter) and ammunition

     later determined to have previously been chambered in the same gun used in the shooting.

     Defendant’s hands later tested positive for gunshot residue and his DNA was on the mask

     recovered from Davenport’s home.

¶8          In May 2013, defendant filed pro se a 207-page petition for relief under the Post-

     Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2012)). The trial court summarily

     dismissed defendant’s petition as frivolous and patently without merit under section 122-

     2.1(a)(2) of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a)(2) (West 2012)).

     Defendant’s petition asserted many claims, only two of which he appeals now: a claim of actual

     innocence and an ineffective assistance of counsel claim.

¶9          Defendant’s actual innocence claim is supported by affidavits from Darius Foster and

     Adrian Ellis. Foster claims he saw Conley Ratcliffe—who testified at defendant’s trial—running

     away from the area of the shooting with a gun in his hand shortly after he heard the gunshots.

     Foster also claims he walked up to the vehicle shortly after the victim had been shot, along with

     the defendant and other unidentified individuals. Ellis, on the other hand, avers in his affidavit

     that while he was incarcerated with Ratcliffe sometime in 2008, Ratcliffe confessed to him that

     he was the shooter. Ellis also claims Ratcliffe stated he previously apologized to Williams for




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       shooting him on accident. Defendant asserts these affidavits constitute newly discovered

       evidence that support his claim of actual innocence.

¶ 10          Defendant argues in his ineffective assistance of counsel claim that his trial counsel

       should have filed a motion to suppress his arrest at the crime scene, as it was not based on

       probable cause. Defendant further asserts appellate counsel was equally ineffective for not

       arguing the same issue on appeal. Defendant alleges his actual innocence and ineffective

       assistance of counsel claims should be allowed to proceed to the second stage of postconviction

       proceedings.

¶ 11                                              ANALYSIS

¶ 12          At the first stage, a postconviction petition may be summarily dismissed only if it is

       “frivolous” or “patently without merit.” Id. Appellate review of a first-stage postconviction

       petition’s summary dismissal is de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

       Hodges, 234 Ill. 2d 1, 16 (2009); People v. Allen, 2015 IL 113135, ¶ 25. At the first stage of a

       postconviction proceeding, we must determine whether the petition sets forth the “gist” of a

       constitutional claim. People v. Boclair, 202 Ill. 2d 89, 99-100 (2002). If we determine

       defendant’s pleadings meet the minimum requirements, the petition proceeds to the second stage.

       725 ILCS 5/122-2.1(b) (West 2012). The defendant, however, has the burden of establishing he

       has suffered a substantial deprivation of a constitutional right. People v. Waldrop, 353 Ill. App.

       3d 244, 249 (2004).

¶ 13                                I. Defendant’s Actual Innocence Claim

¶ 14          A postconviction actual innocence claim is limited to arguments based on newly

       discovered evidence. People v. Ortiz, 235 Ill. 2d 319, 333 (2009). Courts should grant relief on

       this basis only when the petitioner’s argument is supported by evidence that is new, material,



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       noncumulative, and of such a conclusive character that it would likely change the result on

       retrial. People v. Coleman, 2013 IL 113307, ¶ 84. Courts rarely grant postconviction petitions

       based on claims of actual innocence as the standard is “extraordinarily difficult to meet.” Id.

       ¶ 94.

¶ 15           Defendant argues that the Foster and Ellis affidavits each set forth a colorable claim of

       actual innocence. Specifically, defendant asserts it is “at least arguable” both affidavits contain

       evidence that is newly discovered. In so doing, defense counsel asserts there is no proof that

       defendant knew Foster was on the scene in the aftermath of the shooting, or that defendant could

       have known about Ratcliffe’s confession to Ellis prior to trial. These arguments are unavailing

       as they are based on indisputably meritless legal theories.

¶ 16                                          A. Foster’s Affidavit

¶ 17           Newly discovered evidence is evidence which was not available at defendant’s trial and

       which defendant could not have discovered sooner through the exercise of due diligence. Id.

       ¶ 96. Furthermore, a claim of actual innocence does not merely question the defendant’s guilt,

       but is so conclusive as to be capable of completely exonerating the defendant. People v. Savory,

       309 Ill. App. 3d 408, 414-15 (1999); People v. Coleman, 2013 IL 113307, ¶ 96. Defendant’s

       failure to state a free-standing claim of actual innocence can fail as a matter of law. People v.

       Edwards, 2012 IL 111711, ¶¶ 31, 36-37.

¶ 18           Here, defendant’s claim of actual innocence buttressed by Foster’s affidavit fails as a

       matter of law. Defendant’s argument ignores the due diligence requirement of newly discovered

       evidence and relies heavily on the premise that if there is no proof defendant knew of the

       evidence prior to trial, his discovery of that information afterward renders the information newly

       discovered. Defense counsel cites no case law for this proposition, in violation of supreme court



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       Rule 341(h)(7), and therefore forfeits the argument. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013);

       see People v. Clinton, 397 Ill. App. 3d 215, 223-24 (2009).

¶ 19          Moreover, defendant’s claim is explicitly contradicted by the record. By defendant’s

       own admission, he provided his trial counsel with Foster’s name and contact information as a

       potential witness in preparation for trial. This is prima facie evidence that defendant did know

       Foster was in the area and a potential witness to the incident. That defendant did not know the

       content of Foster’s alleged observations does not render its recent revelation newly discovered.

       People v. Montes, 2015 IL App (2d) 140485, ¶ 24.

¶ 20          Even if Foster’s affidavit were considered newly discovered evidence, it does not

       conclusively support defendant’s claim of actual innocence. Accepting the contents of Foster’s

       affidavit as true, Foster cannot conclusively prove defendant was not the shooter. As the State

       highlights, Ratcliffe could have been running away from the scene with the gun used by

       defendant. Thus, we find the Foster affidavit is insufficient as a matter of law to support a claim

       of actual innocence.

¶ 21                                            B. Ellis’s Affidavit

¶ 22          Generally, evidence is not considered “newly discovered” such that it can support a

       postconviction petition for relief based on actual innocence, when it presents facts already known

       to the defendant at or prior to trial, though the source of those facts may have been unknown,

       unavailable, or uncooperative. Id.

¶ 23          The record establishes that Williams, the other victim of the shooting, testified at trial and

       was prohibited from asserting that a person he refused to identify was the shooter. McAfee

       testified at trial as well. Prior to his testimony, the State argued several motions in limine to

       block specific portions of McAfee’s testimony. On the record, the State argued that McAfee



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       should not be allowed to testify that Williams revealed to him that Ratcliffe was the one who

       apologized to Williams for shooting him in the arm. The defense ultimately conceded such

       testimony was inadmissible hearsay, and McAfee did not aver such statements during his

       testimony.

¶ 24          Shortly after McAfee testified, Ratcliffe took the stand and the defense chose not to ask

       him about his alleged statements to Williams. Therefore, the defense theory that Ratcliffe was

       the shooter—and not defendant—was available to defendant at trial. The defense cross-

       examined Ratcliffe, while the record demonstrates they were aware Ratcliffe had allegedly

       admitted to Williams he was the shooter. Thus, defendant’s actual innocence claim, as supported

       by the Ellis affidavit, is not based on newly discovered evidence.

¶ 25          Furthermore, testimony by Ellis regarding Ratcliffe’s alleged confession is hearsay,

       which cannot be the basis of a defendant’s postconviction petition. People v. Coleman, 2012 IL

       App (4th) 110463, ¶ 55. Generally, hearsay is insufficient to support a postconviction petition,

       particularly when there is no explanation why an affidavit from the declarant is unavailable. 725

       ILCS 5/122-2 (West 2012); People v. Coleman, 2012 IL App (4th) 110463, ¶ 55. In this case,

       defendant does not explain why Ratcliffe (the declarant) is unavailable and ignores the fact that

       Ratcliffe already testified at defendant’s trial and therefore actually was available.

¶ 26          Defendant counters that the Illinois Supreme Court recently rejected the argument that

       evidence needs to be admissible during the first stage of postconviction proceedings in People v.

       Allen, 2015 IL 113135. The majority in Allen, however, stated it is sufficient for a

       postconviction petitioner to provide “substantive evidentiary content” in support of a claim

       supported by “ ‘other evidence,’ ” not an affidavit. Id. ¶ 37.




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¶ 27          We find that Allen speaks to the procedural requirements or defects of a defendant’s

       postconviction petition. In Allen, at issue was the legal creation of defendant’s supporting

       affidavit, which was procedurally insufficient. Id. ¶ 2. That is not at issue in the case sub judice.

       The substantive requirements of affidavits in postconviction petitions (in this case the status of

       the averred content as newly discovered evidence or admissible evidence) remains unchanged in

       the wake of Allen.

¶ 28          Inadmissible hearsay cannot constitute substantive evidence by any definition. We

       cannot believe the supreme court in Allen meant for any petitioner’s claim to survive the

       relatively abbreviated review of first-stage postconviction proceedings without regard for the

       substance of the supporting evidence. In fact, the majority explicitly rejected an overly broad

       interpretation of its ruling in response to direct criticism from the dissent. Id. ¶ 38.

¶ 29          The trial court would not let Williams testify that he was given an apology by an

       anonymous person claiming to be the real shooter. Nor would it let McAffe testify that Williams

       told him that that person was Ratcliffe. We now have another declarant offering the same

       information. The information is still inadmissible hearsay, as already ruled upon by the trial

       court, and substantively cannot support a postconviction petition—even in the first stage. Thus,

       we find the Ellis affidavit is insufficient as a matter of law to support a claim of actual

       innocence.

¶ 30                        II. Defendant’s Ineffective Assistance of Counsel Claim

¶ 31          Lastly, defendant argues the trial court erred by dismissing his claims of ineffective

       assistance of counsel. Defendant asserts his trial counsel was ineffective for failing to file a

       motion to quash his arrest and suppress evidence. Defendant also contends his appellate counsel

       was ineffective for failing to argue trial counsel’s ineffectiveness for this same reason on direct



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       appeal. The State contends that probable cause existed at the time of arrest and any motion filed

       by the defense to quash defendant’s arrest would have been futile.

¶ 32          Again, to survive first-stage dismissal of a postconviction petition, a pro se petitioner

       need only present the “gist” of a constitutional claim. People v. English, 353 Ill. App. 3d 337,

       339 (2004). Postconviction claims of ineffective assistance of counsel must allege facts

       sufficient to prove both prongs under Strickland in order to succeed: (1) that counsel’s

       performance fell below an objective standard of reasonableness; and (2) that the defendant was

       substantially prejudiced as a result. People v. Gale, 376 Ill. App. 3d 344, 351 (2007); Strickland

       v. Washington, 466 U.S. 668 (1984).

¶ 33          Trial counsel and appellate counsel are held to the same standard in a Strickland analysis.

       People v. Tenner, 175 Ill. 2d 372, 378 (1997); People v. Richardson, 189 Ill. 2d 401, 412 (2000).

       On appeal, substantial prejudice is not demonstrated by enumerating the issues appellate counsel

       did not brief, as appellate counsel is not required to brief every possible issue. People v.

       Coleman, 168 Ill. 2d 509, 523 (1995). Consequently, if defendant’s claim of ineffective

       assistance of trial counsel fails the deficiency prong of Strickland, appellate counsel cannot be

       found deficient for failing to address the same issue on appeal. Id.

¶ 34          Defendant alleges the police did not have probable cause to arrest him when Officer

       Stubler placed him in handcuffs. From our review of the record, this is likely true. The

       continuation of defendant’s argument, however—that defendant was therefore unconstitutionally

       arrested without probable cause, in violation of the fourth amendment—is patently false. In

       making this argument, defendant makes two assumptions that are legally inaccurate and factually

       contradicted by the record: (1) that defendant was under arrest when Officer Stubler placed him

       in handcuffs; and (2) that Officer Stubler’s knowledge needed to be the sole basis for the



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       probable cause supporting the decision to arrest the defendant. Absent these assumptions,

       defendant’s argument falls apart.

¶ 35          We note again that the record makes clear the defendant was detained at the crime scene

       for approximately 45 minutes before he was placed under arrest and transported to the police

       station. Shortly before transport, defendant was informed that he was under arrest at that time,

       rather than detained. The legal distinction between detention and arrest is significant. An arrest

       requires probable cause, while temporary detention need only be supported by reasonable

       suspicion. People v. Luedemann, 222 Ill. 2d 530, 544 (2006). Detention based on reasonable

       suspicion is based on the totality of the circumstances, which factors in the seriousness of the

       crime; in this case a murder. People v. Easley, 288 Ill. App. 3d 487, 491-92 (1997).

¶ 36          After reviewing the record, we find that Office Stubler had reasonable suspicion to detain

       the defendant on scene and his subsequent arrest was supported by probable cause. Contrary to

       defense counsel’s assertions on appeal, the defendant was not placed under arrest by Officer

       Stubler solely because he overheard anonymous people make the accusation that defendant was

       the shooter. Officer Stubler’s testimony at trial belies this assertion. In relevant part, Officer

       Stubler stated:

                         “I made my way to where Mr. Wallace was in the back, took

                         control of him and advised him he was being detained in reference

                         to [sic] a suspect of that shooting.”

       Nowhere in Officer Stubler’s testimony does he say that he arrested the defendant at that time.

       Police reports from other responding officers all clearly state that defendant was detained at the

       scene before he was arrested.




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¶ 37          Defendant was detained at the scene initially because yet-to-be-identified people were

       stating that he was the shooter. This was the appropriate action under the circumstances

       supported by reasonable suspicion. No reasonably prudent officer would ignore this information.

       Rather, the appropriate course of action was to detain defendant to investigate further.

¶ 38          Probable cause for arrest exists when facts known to an officer would lead a reasonably

       cautious person to believe the arrestee committed a crime. People v. Wear, 229 Ill. 2d 545, 563-

       64 (2008). Probable cause can be based on information provided by a third party, anonymous or

       identified, as long as it bears some indicia of reliability. People v. Adams, 131 Ill. 2d 387, 397

       (1989). “Where officers are working together in investigating a crime, the knowledge of each

       constitutes the knowledge of all, and probable cause can be established from all the information

       collectively received by the officers.” People v. Ortiz, 355 Ill. App. 3d 1056, 1065 (2005).

¶ 39          Defendant’s subsequent arrest after a relatively brief detention was the result of a

       budding investigation that pointed to him as the culprit. Dandridge’s testimony contains the

       following relevant inquiry by the State:

                          “MR. KNICK [assistant State’s Attorney]: That day did you

                      talk to the police at both the scene, at the Fairmont housing unit,

                      and also at the Joliet police station?

                          MS. DANDRIDGE [witness]: Yes.

                          MR. KNICK: And when you talked – – were talking to the

                      police there at the scene, what was going on?

                          MS. DANDRIDGE: Everybody was outside just looking at

                      everything that was going on.”




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       Dandridge went on to say that she told the officer she was not comfortable speaking with the

       police at her home, and that the officer she spoke with suggested she speak to police later, at the

       station. Defense counsel on appeal emphasizes the latter portion of Dandridge’s testimony,

       implying she said nothing of substance to officers on scene. This assumption, however, is

       contradicted by the record.

¶ 40          Detective Jackson responded promptly to the scene and immediately began interviewing

       witnesses. In describing his second interview with a witness, Detective Jackson documented the

       following in a report:

                          “I traveled to 1514 Fairmount where Tonya Dandridge ***

                      stated that shooter in the above mentioned matter was a subject

                      known to her as ‘Choke’. It should be known that I have prior

                      knowledge of ‘Choke’ being Corrie Wallace. At the time I

                      obtained this information from Tonya Dandridge there were

                      several onlookers in the Fairmount Housing Projects. Ms.

                      Dandridge stated that she would feel more comfortable coming to

                      the Joliet Police Department giving this statement without so many

                      onlookers and people observing the statement of her speaking with

                      the police. I furnished Ms. Dandridge with my business card and

                      stated when her children arrived home from school that it would be

                      okay to [sic] the Joliet Police Department.”

       Hence, the police had probable cause to arrest defendant after they spoke with Dandridge, an

       eyewitness to the shooting, on scene.




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¶ 41           Given the record before this court, it is apparent that defense counsel’s efforts at trial to

       quash defendant’s arrest would have been futile. The testimony of the witnesses at trial,

       supplemented by police reports from investigating officers, establish that the police had probable

       cause to arrest defendant before transporting him to the station. Had defense counsel filed a

       motion to quash defendant’s arrest, it would have been denied. Defendant’s detention on scene

       in the aftermath of a shooting for approximately 45 minutes was reasonable. His eventual arrest

       was supported by probable cause. Trial counsel’s subsequent decision not to file a motion to

       quash defendant’s arrest was objectively reasonable as well. Likewise, appellant counsel was

       not deficient for failing to raise the same issue on direct appeal. As a result, defendant’s

       ineffective assistance of counsel claims fail the first prong of the Strickland analysis.

¶ 42           Accordingly, we affirm the trial court’s summary dismissal of defendant’s postconviction

       petition.

¶ 43                                              CONCLUSION

¶ 44           For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 45           Affirmed.




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