                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Wilson, 2013 IL App (1st) 112303




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



District & No.             First District, Third Division
                           Docket No. 1-11-2303


Filed                      September 25, 2013


Held                       The trial court erred in summarily dismissing defendant’s pro se
(Note: This syllabus       postconviction petition alleging that his counsel was ineffective in failing
constitutes no part of     to call defendant’s girlfriend as an alibi witness in his prosecution for first
the opinion of the court   degree murder arising out of an aggravated vehicular hijacking under an
but has been prepared      accountability theory, since his petition was supported by his girlfriend’s
by the Reporter of         signed and notarized affidavit and corroborated defendant’s trial
Decisions for the          testimony that he did not facilitate the offense, but merely told the
convenience of the         perpetrator where he could find the vehicle.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 04-CR-11843; the
Review                     Hon. Clayton J. Crane, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Douglas P. Harvath, and Peter Maltese, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE MASON delivered the judgment of the court, with opinion.
                           Presiding Justice Hyman and Justice Pierce concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant Reco Wilson appeals the summary dismissal of his pro se postconviction
        petition. On appeal, Wilson contends that his petition, supported by a signed and notarized
        affidavit of an alleged alibi witness, presents an arguable claim that trial counsel provided
        ineffective assistance where counsel failed to call that witness. Accordingly, Wilson contends
        that his petition should advance to the second-stage proceedings with appointment of
        counsel. For the reasons that follow, we reverse and remand for further postconviction
        proceedings.

¶2                                        BACKGROUND
¶3          In simultaneous but severed bench trials in 2008, Wilson and codefendant Marcel Milton
        were convicted of first degree murder in the shooting death of Deon Gardner. The State
        presented evidence that Milton fatally shot Gardner on March 22, 2004, during the course
        of an aggravated vehicular hijacking. Wilson was convicted on an accountability theory for
        calling Milton and informing him of the vehicle’s location, knowing that Milton was armed
        with a gun.
¶4          On March 17 or 18, 2004, Wilson approached Sergio Wray on the street and asked if he
        could move a car for him. Wray agreed and Wilson then drove him to the area near 78th
        Street and South Shore Drive and handed him the keys to a silver Jeep Grand Cherokee that
        Wilson and Milton had stolen earlier from an Alamo car rental facility. Wilson told Wray to
        follow him in the Jeep to 77th Street and Yates Boulevard, but after losing sight of Wilson’s
        vehicle, Wray decided to keep the Jeep.
¶5          On the evening of March 22, 2004, Wray was watching movies with Lamar Murphy and
        Deon Gardner at Murphy’s apartment at 6926 South Michigan Avenue. Around 9 p.m., Wray
        asked Murphy to drive him and Gardner in the Jeep to Gardner’s house to get more movies.

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     As they pulled away from the curb, a white car traveling the wrong way on Michigan Avenue
     approached the Jeep and stopped. Milton exited the passenger’s seat of the white car, pulled
     out a gun and ordered the men out of the Jeep. Milton fired two shots at Murphy and Wray
     as they exited through the driver’s door and ran. Milton then got into the driver’s seat and
     ordered Gardner, who was in the backseat, to exit the Jeep. As Gardner exited the vehicle,
     Milton shot him once in the back and then twice after he had fallen to the ground.
¶6       Evidence introduced at trial, including an inculpatory videotaped statement by Wilson,1
     showed that earlier that day Wilson saw the Jeep near 69th and Cottage Grove. Wilson
     contacted Milton on his cell phone and told Milton he was following the Jeep and that Milton
     should come with an extra set of keys to retrieve the vehicle. Wilson then called his cousin
     to give Milton a ride. Wilson followed the Jeep to 69th and Michigan, where he observed the
     occupants exit the vehicle and enter a building. In the videotaped statement, Wilson
     acknowledged that he knew Milton carried a gun in such situations and admitted that he
     thought Milton would bring a gun to retrieve the Jeep. He also stated that when he later
     called Milton on his cell phone to tell him to hurry, Milton stated that he had his “blow on
     [him].” Wilson stated that a “blow” was a gun. According to Wilson’s statement, he
     observed Milton’s arrival in the Jeep and his initial two shots at Murphy and Wray. As
     Wilson drove away, he looked in his rearview mirror and observed Milton shoot Gardner
     once as he exited the Jeep and twice as he lay on the ground.
¶7       Wilson testified at trial and, contrary to his videotaped statement, claimed that he did not
     observe Milton shoot Gardner. Wilson testified that he was with his girlfriend, Tiffany
     Taylor, and her children at a McDonald’s when he saw the Jeep drive by. He stated that
     Taylor was with him in the car when he called Milton and drove to the area of 69th and
     Michigan, and that they left before Milton arrived. Over defense counsel’s objections,
     Wilson admitted that he did not know where Taylor was during trial.
¶8       On appeal, appellate counsel filed a motion for leave to withdraw pursuant to Anders v.
     California, 386 U.S. 738 (1967), arguing that there were no issues of merit on appeal. People
     v. Wilson, No. 1-08-2836 (2010) (unpublished order under Supreme Court Rule 23). In his
     pro se response, Wilson argued, inter alia, that trial counsel was ineffective for failing to call
     Taylor to testify despite his repeated requests for counsel to do so. Id. at 11. In affirming
     Wilson’s conviction on appeal, this court rejected defendant’s arguments regarding Taylor,
     concluding that defense counsel “made a conscious decision” not to call Taylor as a witness,
     which was a matter of trial strategy, generally immune from an ineffective assistance claim.
     Id. at 11-12.
¶9       Defendant subsequently filed a pro se petition for relief under the Post-Conviction
     Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Wilson’s petition asserted that
     he was denied effective assistance of trial counsel because counsel failed to (1) assure that
     police had the proper paperwork to remove him from the county jail for questioning, (2)
     investigate the number of stolen cars and trucks in Wilson’s neighborhood to negate law


             1
               Wilson’s motion to suppress his statement on the ground that it was coerced was denied
     after a pretrial evidentiary hearing.

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       enforcement’s stated reason for questioning Wilson, (3) interview or call Taylor as an alibi
       witness, and (4) move to sever Wilson’s trial from Milton’s. Wilson further claimed that he
       was convicted of an offense not charged in the indictment and was denied effective
       assistance of appellate counsel in his direct appeal.
¶ 10       Attached to Wilson’s petition was a signed and notarized affidavit from Taylor. In the
       affidavit, Taylor attested that on March 22, 2004, she was with defendant from 4 p.m. until
       11 p.m. At one point, Taylor, Wilson and their children went to a McDonald’s restaurant at
       79th and Phillips where Wilson observed the Jeep drive by and told her it was Milton’s. As
       Taylor and Wilson followed the Jeep, Wilson contacted Milton on his cell phone and put it
       on speaker. Taylor heard Wilson tell Milton to come to 69th and Michigan and bring the
       extra set of keys for the Jeep. According to Taylor, she and Wilson left the area before Milton
       arrived.
¶ 11       The circuit court dismissed the petition, determining that all of the issues raised in
       Wilson’s petition were barred by res judicata, having been raised and settled on direct
       appeal. The court determined that Wilson’s claims had no arguable basis in law and that
       accordingly Wilson was not entitled to proceed to the second stage of the postconviction
       relief process with appointed counsel. Wilson timely filed this appeal.

¶ 12                                           ANALYSIS
¶ 13        On appeal, Wilson contends that Taylor’s affidavit presents an arguable claim that his
       trial attorney was ineffective in failing to present Taylor as a witness because Taylor’s
       version of events would have corroborated his trial testimony. The State responds that the
       circuit court correctly dismissed Wilson’s petition based on res judicata because this court
       previously rejected on direct appeal the same argument Wilson now raises.
¶ 14        The Act provides a remedy for defendants who have suffered a substantial denial of their
       federal or state constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471 (2006).
       At the first stage of postconviction review, the circuit court independently reviews the
       petition to determine whether it is “frivolous or is patently without merit.” 725 ILCS 5/122-
       2.1(a)(2) (West 2010). A petition may be dismissed under this standard only if it has no
       arguable basis either in law or in fact. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009).
       Summary dismissal of a postconviction petition at the first stage is reviewed de novo. People
       v. Brown, 236 Ill. 2d 175, 184 (2010).
¶ 15        If the petition survives first stage review, it proceeds to the second stage, where counsel
       may be appointed to aid an indigent defendant, and the State will be allowed to file
       responsive pleadings. 725 ILCS 5/122-4, 122-5 (West 2010); Hodges, 234 Ill. 2d at 10-11.
       To advance beyond the second stage, the petition and any accompanying documentation must
       make a “substantial showing” of a constitutional violation. People v. Edwards, 197 Ill. 2d
       239, 246 (2001). Upon such a finding, the circuit court conducts an evidentiary hearing on
       the defendant’s claim. 725 ILCS 5/122-6 (West 2010).
¶ 16        A postconviction petition may be dismissed at the first stage where the defendant’s claim
       is barred by res judicata. People v. Blair, 215 Ill. 2d 427, 450 (2005). Res judicata precludes
       a claim if it has been previously raised and decided on direct appeal. Id. at 443-44. It is

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       axiomatic that any direct appeal is confined to the contents in the trial record. See, e.g.,
       People v. Newbolds, 364 Ill. App. 3d 672 (2006) (noting that if supporting facts are not part
       of trial record, they may not be considered by the reviewing court on direct appeal).
       Accordingly, an exception to barring a claim based on res judicata in a first-stage
       postconviction proceeding applies “where [the] facts relating to the claim do not appear on
       the face of the original appellate record.” Blair, 215 Ill. 2d at 450-51; People v. Harris, 206
       Ill. 2d 1, 13 (2002); People v. Mahaffey, 194 Ill. 2d 154, 171 (2000).
¶ 17        The record on direct appeal establishes that counsel considered presenting Taylor as a
       witness but chose not to do so. The details of Taylor’s potential testimony as set out in the
       affidavit are not part of that record, and it also is not clear from the record that counsel knew
       the substance of Taylor’s account. Therefore, the facts relating to Wilson’s claim are outside
       the direct appeal record because the facts derive from the contents of Taylor’s affidavit
       attached to Wilson’s postconviction petition. For that reason, we find res judicata does not
       bar Wilson’s instant postconviction claim.
¶ 18        The State contends that Taylor’s affidavit “only provides details as to what her testimony
       would have allegedly included.” Indeed, that is precisely why Taylor’s attestations meet the
       standard for relaxation of the res judicata doctrine, which allows review of a previously
       raised point “where facts relating to the claim do not appear on the face of the original
       appellate record.” (Emphasis added.) (Internal quotation marks omitted.) People v.
       Pitsonbarger, 205 Ill. 2d 444, 458 (2002). Although Wilson argued on direct appeal that
       counsel should have presented Taylor as a witness, and the claim therefore was part of his
       appeal, the record before the court at that time did not contain the facts of Taylor’s potential
       testimony as stated in her affidavit.
¶ 19        We find further support in People v. Tate, 2012 IL 112214, ¶ 22, in which our supreme
       court held that at a first-stage review of a postconviction petition, when considering a claim
       of ineffectiveness of trial counsel for failure to call certain witnesses, the court should not
       consider trial strategy. Here, as in Tate, Wilson’s petition should advance to the second stage
       of review under the Act.
¶ 20        To succeed on a claim of ineffective assistance, a defendant must show that his counsel’s
       performance fell below an objective standard of reasonableness and that such performance
       prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984). In the context
       of a first-stage postconviction claim, a defendant need only show that he can arguably meet
       those two standards, i.e., it is arguable that his counsel was deficient and it is arguable that
       the outcome of his case would have been different absent the deficient representation.
       Hodges, 234 Ill. 2d at 17.
¶ 21        To establish counsel’s deficient performance, a defendant must overcome a strong
       presumption that the challenged action or inaction was a matter of sound trial strategy, and
       whether to call a particular witness to testify on a defendant’s behalf falls under that category
       of virtually unchallengeable decisions, as this court noted in its order on direct appeal.
       Wilson, slip op. at 11-12. According to Wilson’s statement to investigators, he told Milton
       where the Jeep was located and that he knew Milton was bringing a weapon. Wilson also
       told investigators that he observed the shooting through his rearview mirror as he drove


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       away. However, at trial, Wilson disavowed that confession, saying he was physically coerced
       into making that statement.
¶ 22       Applying the Hodges standard, it is at least arguable that defendant’s trial counsel was
       ineffective in failing to present Taylor as a witness, given the potential testimony set out in
       her affidavit. Taylor attested she was in the car with Wilson and heard Wilson and Milton
       converse via speaker phone. She attested that Wilson told Milton the vehicle’s location and
       heard him tell Milton to bring the second set of keys for the Jeep. Taylor further attested that
       they left the area before Milton arrived. Therefore, Taylor’s testimony could have
       corroborated defendant’s trial testimony that he did not facilitate the crime and only told
       Milton where to retrieve the vehicle.
¶ 23       In conclusion, although the circuit court correctly determined that the majority of the
       issues raised in the petition were previously raised and decided, res judicata does not bar
       Wilson’s postconviction claim because Wilson’s petition presents an arguable claim that his
       counsel was ineffective in failing to present Taylor’s testimony regarding Wilson’s actions
       prior to the shooting.
¶ 24       Accordingly, the circuit court’s summary dismissal of the petition is reversed, and the
       petition is remanded for further proceedings under the Act.

¶ 25      Reversed and remanded.




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