                                        2016 IL App (1st) 150640
                                              No. 1-15-0640
                                                                                          Fifth Division
                                                                                          June 30, 2016

     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                       )
                                                                )     Appeal from the Circuit Court
           Plaintiff-Appellee,                                  )     of Cook County.
                                                                )
           v.                                                   )     No. 05 CR 4102
                                                                )
     STEPHEN HENRY,                                             )     The Honorable
                                                                )     William Timothy O’Brien,
           Defendant-Appellant.                                 )     Judge Presiding.
                                                                )
     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.


                                                OPINION

¶1              Following a bench trial, defendant Stephen Henry was convicted of one count of

        attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)), one count of

       aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2002)), and one count of the

       unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2002)), all resulting from

       one April 2004 incident. After hearing factors in aggravation and mitigation, the trial court

       sentenced defendant to 24 years in the Illinois Department of Corrections (IDOC). On direct

        appeal, defendant contested the sufficiency of the identification evidence at trial, arguing that

        the State failed to prove beyond a reasonable doubt that he was the shooter. Defendant
     No. 1-15-0640


        argued that the identification of the only eyewitness was tainted by the witness having

        viewed defendant’s picture multiple times on a website prior to participating in a photo array

        and lineup. We affirmed. People v. Henry, No. 1-06-2600 (2010) (unpublished order

        pursuant to Supreme Court Rule 23).

¶2                 On this postconviction appeal, defendant claims that the trial court erred by

        dismissing his petition at the second stage, because he made a substantial showing that his

        trial counsel was ineffective for failing to investigate and call two alibi witnesses at trial. For

        the following reasons, we affirm.

¶3                                                  BACKGROUND

¶4                                               I. Pretrial Proceedings

¶5                 At a pretrial appearance on April 26, 2005, defendant’s trial counsel 1 advised the trial

        court: “I am meeting with a potential alibi witness with regards to this matter, Judge. I am

        going to ask for one final status.”

¶6                 At the next pretrial appearance on September 21, 2005, defendant’s trial counsel

        informed the trial court:

                        “DEFENSE COUNSEL: Judge, we have one witness we can’t find. We will be

                   filing an answer with regard to this. It’s going to be an alibi defense.

                        And I don’t have a full list of every witness we intend on calling. So I was going

                   to ask for a short status to file my answer in that regard.”

¶7                 At a pretrial appearance on October 14, 2005, defendant’s trial counsel advised the

        trial court:




            1
                Defendant’s trial counsel was privately retained.

                                                                2
       No. 1-15-0640


                       “DEFENSE COUNSEL: This is here for my answer today. I have told the State

                  about two of our witnesses; a tentative potential affirmative defense with regard to

                  this. There is one witness that needs to be interviewed.

                       However, my biggest dilemma is, I have Kenard Gray who is in the Navy. He is

                  going to be there for another five or six weeks. I don’t have the exact date he will be

                  back in Chicago.

                       I was going to ask for November 2nd as a status. I can give the exact times I will

                  have him available.”

¶8                The trial court allowed a continuance, and at the next appearance on November 2,

          2005, defendant’s trial counsel informed the trial court:

                       “DEFENSE COUNSEL: Judge, in this matter discovery is complete with it. I

                  have interviewed several of the witnesses with regard to this.

                       My investigator was supposed to have taken photos and given me a report, along

                  with some assistance, which I do not have in my possession yet.”

¶9                On November 21, 2005, defendant’s trial counsel advised the trial court: “Judge, I

          have some outstanding discovery for the State which is not complete yet. I think we will be

          able to set it for trial after the next date, providing−I am sure we will have it.”

¶ 10              On December 20, 2005, defendant’s trial counsel filed an answer to the State’s

          motion for pretrial discovery, in which defendant’s trial counsel asserted an affirmative

          defense of alibi and listed three potential witnesses: (1) Kenard Gray; (2) John Byrne, the

          private investigator; and (3) Ian Ramsey.




                                                         3
       No. 1-15-0640


¶ 11             On April 10, 2016, at a pretrial appearance, the State informed the trial court:

          “[Defendant’s counsel] was going to get me a little more information regarding the

          defendant’s alibi.”

¶ 12             Prior to commencing trial on May 23, 2006, the trial court confirmed with defendant

          on the record that defendant had signed a jury waiver voluntarily, and that no one had

          coerced him into doing so.

¶ 13                                        II. Evidence at Trial

¶ 14             On direct appeal, this court described the evidence at trial, as follows:

                       “George Olivos testified for the State as the only eyewitness to the April 2004

                 incident. He testified that in February of 2004 he was employed as a reggae disc

                 jockey at a bar called ‘The Note.’ One evening while working, he was approached by

                 a group of approximately ten men. He recognized one as Albert Harris, a music

                 promoter with whom Olivos had previously worked. A confrontation ensued when

                 the group told Olivos to leave and remove his equipment. He did not leave, and the

                 group including Harris eventually left.

                       On the evening of April 16, 2004, Olivos was working as a bouncer at a bar called

                 ‘Leila Jane’s.’ His job was to check identifications and not admit underage

                 individuals. Olivos testified that[,] at around midnight, he observed Harris standing

                 across the street from the bar, talking on his cell phone. At approximately 1:00 am, he

                 observed a man walking towards the bar whom he later identified as defendant.

                       Defendant approached Olivos and asked if there was a cover charge to enter the

                 bar. Olivos answered that there was no cover charge, but proper identification was

                 required. Defendant then reached towards his back, grabbed a gun, and rammed it


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No. 1-15-0640


         into Olivos’ chest. Defendant then re-cocked the gun and a bullet flew from its

         chamber. Olivos, who was not struck by the bullet, jumped back and ran into the bar.

         Olivos then heard at least three additional gun shots.

                Olivos testified that he attended ‘reggae night’ at a venue called ‘Lava Lounge’

         on April 21, 2004, four days after the shooting. When he observed Albert Harris

         there, he telephoned the police. Olivos also testified that he viewed a photo array on

         November 21, 2004 and a physical lineup on January 30, 2005. He identified

         defendant on both occasions.

                On cross examination, Olivos testified that he observed defendant during his

         approach to the bar for approximately five to six seconds, and one to two seconds

         during their conversation. He also testified that he viewed defendant’s photo on

         Harris’ Dancehall 101 website multiple times before participating in the photo array

         or lineup. Olivos did not inform police that he had identified the offender from the

         website.

                Daniel Bryan testified for the State. He was seated near the door of the bar during

         the incident and was struck in the knee with a stray bullet, but did not observe the

         identity of the offender.

                Police Officer James Pera testified for the State that he was first to arrive at the

         scene of the shooting. He testified that he viewed the red mark on Olivos’ chest where

         Olivos claimed he was struck with the gun. He testified that the area around the bar

         was well lit and Olivos did not appear to be intoxicated. He also testified to the

         physical description Olivos provided him the night of the shooting. According to

         Officer Pera, Olivos described the offender as a black male with a Jamaican accent,


                                                 5
No. 1-15-0640


         approximately 24 to 28 years of age, 5’10” in height, weighing 170 pounds, with

         brown eyes, short black hair, and a dark complexion. Olivos claimed that the offender

         had a two to three inch scar above his right eye, possibly a thin goatee, and was

         wearing a baseball cap, a black shirt with writing on it, and jeans. Officer Pera

         testified that four spent shell casings and one unfired bullet were recovered from the

         scene. They were admitted into evidence and he identified them during trial.

                At trial, the parties stipulated that defendant’s appearance was the same at trial as

         it was in April of 2004. At trial, defendant weighed approximately 230 pounds with a

         medium complexion, no facial hair, and a one inch scar above his left eye.

                Police Officer Brian Finnegan, employed as a firearms instructor for the Chicago

         Police Department, testified for the State as a firearms expert. Officer Finnegan

         opined that the casings and bullet recovered from the scene of the shooting came from

         a semi-automatic pistol due to the extractor marks on the shells. He also opined that

         jamming a semi-automatic pistol into someone’s chest could cause the pistol to

         misfire. When that happens, the shooter can cause the gun to fire again by pulling on

         the slide and ejecting the round that had previously been in the chamber.

                Detective Ed Heerdt testified for the State that during his investigation on the

         evening of the shooting, Olivos reported the February 2004 incident between himself

         and Harris. Detective Heerdt also testified that he interviewed Harris the evening of

         April 21, 2004[,] at ‘Lava Lounge’ after receiving a phone call from Olivos.

         Detective Heerdt later caused Harris’ cell phone records to be subpoenaed. At trial,

         the parties stipulated that the records showed multiple cell phone calls from defendant

         to Harris, including three calls on the night of the shooting, April 16, 2004, 29 calls


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       No. 1-15-0640


                  on April 17, 2004, and one call on April 18, 2004. Detective Heerdt also testified that

                  Olivos identified defendant’s photo in a photo array ‘without any hesitation.’

                       Police Officer Richard Landgraff testified for the State that he arrested defendant

                  on January 25, 2005. He was present when Olivos viewed a lineup on January 30,

                  2005 in which Olivos ‘took less than a second to identify’ defendant.” Henry, No. 1-

                  06-2600, slip order at *2-4.

¶ 15                               III. Conviction, Sentencing, and Appeal

¶ 16              After the State rested, the trial court denied defendant’s motion for a directed finding.

          After the close of evidence on May 23, 2006, defendant did not physically return to court.

          The proceedings continued and the trial court revoked defendant’s bond and issued a warrant

          for his arrest. During closing arguments, defendant’s trial counsel argued that Olivos’

          identification of defendant was unreliable and left a reasonable doubt as to defendant’s guilt

          because, first, Olivos had viewed defendant’s picture multiple times on a website prior to

          participating in the photo array and lineup. Second, although Olivos viewed defendant’s

          picture multiple times after the shooting, he failed to call the police to report defendant.

          Third, there were significant discrepancies between Olivos’ description of the shooter and

          defendant’s appearance; and, fourth, the encounter between Olivos and the shooter was too

          short in duration and the area was poorly lit for Olivos to have made an accurate

          identification.

¶ 17              On June 19, 2006, the trial court found defendant guilty of one count of attempted

          first degree murder of Olivos under sections 8-4(a) and 9-1(a)(1) of the Criminal Code of

          1961 (Code) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)), one count of aggravated battery

          with a firearm of Bryan under section 12-4.2 of the Code (720 ILCS 5/12-4.2 (West 2002)),


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       No. 1-15-0640


          and one count of the unlawful use of a weapon by a felon under section 24-1.1(a) of the Code

          (720 ILCS 5/24-1.1(a) (West 2002)). The trial court merged the findings of guilt as to

          aggravated battery and unlawful use of a weapon into the attempted first degree murder

          conviction. After considering factors in mitigation and aggravation, the trial court sentenced

          defendant to 24 years in IDOC. Defendant was subsequently arrested on the warrant on July

          10, 2009, and is now serving the custodial portion of his sentence. On direct appeal, this

          court affirmed defendant’s conviction and sentence. Henry, No. 1-06-2600.

¶ 18                                        IV. Postconviction Proceedings

¶ 19                 On February 7, 2011, defendant, with newly retained private counsel, filed a petition

          for postconviction relief pursuant to section 122-1 of the Code of Criminal Procedure of 1963

          (725 ILCS 5/122-1 (West 2010)). 2 In his petition, defendant argued that he was deprived of

          his constitutional rights because his trial counsel, whom defendant had also privately

          retained, was ineffective. Specifically, defendant claimed that he had “produced” two alibi

          witnesses to his trial counsel who would have testified to his presence elsewhere at the time

          of the crime, but that his trial counsel never called these witnesses to testify concerning

          defendant’s whereabouts. The petition stated that defendant’s conviction rested on the

          eyewitness testimony of one witness for the State, and he claimed that the testimony of these

          two alibi witnesses would have changed the outcome of his trial. The petition further claimed

          that defendant’s trial counsel had refused to allow defendant’s request for a trial by jury.

          Lastly, the petition stated that defendant would file an amended petition to more specifically

          set forth these allegations.




              2
                  The petition came before a judge who was not the judge who had presided over defendant’s trial.

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       No. 1-15-0640


¶ 20             On March 2, 2012, defendant filed an amended petition for postconviction relief. In

          this amended petition, defendant claimed that, prior to trial, he had “produced four alibi

          witnesses to his trial counsel who would testify that on the date and time of the shooting the

          defendant was not present at the scene of the crime.” The amended petition named these four

          witnesses as: (1) Kenard Grey, (2) Ian Ramsey, (3) Bernie Ulysse, and (4) Kenyatta Smoot.

          Defendant further claimed that he had informed his trial counsel of the fact that he had

          disclosed these witnesses to Chicago police detectives who were investigating the incident.

          Nevertheless, the petition alleged that trial counsel never contacted these witnesses and never

          called them to testify about their knowledge of defendant’s whereabouts at the time of the

          shooting.

¶ 21             Defendant also filed his own signed affidavit, in which he certified the truth of all

          allegations in the amended petition. Defendant also claimed that “during the pendency of his

          case” he had informed his trial counsel of “the names and contact information for witnesses

          who could provide alibi testimony for [his] case.” Defendant claimed that his trial counsel

          informed him that he “did not contact [defendant’s] witnesses because they were not

          necessary, as the Cook County State’s Attorney ‘had no case’ against [defendant].”

¶ 22             On July 20, 2012, the State filed a motion to dismiss defendant’s petition for

          postconviction relief. The State argued that defendant’s petition should be dismissed because

          (1) unsupported conclusory allegations were insufficient to require an evidentiary hearing,

          and (2) the record directly refuted defendant’s claims that trial counsel refused to allow his

          request of a jury trial and failed to investigate an alibi defense. The State conceded, however,

          that defendant’s trial counsel did not present a written affirmative defense of alibi at trial.




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       No. 1-15-0640


¶ 23              On February 8, 2013, defendant filed an addendum to his petition for postconviction

          relief. The addendum stated that defendant’s postconviction counsel had attempted to locate,

          contact, and interview the four alibi witnesses named in the petition for postconviction relief,

          two of who were not residing in the State of Illinois. The addendum further stated that

          defendant’s postconviction counsel had located and interviewed three of the four witnesses.

          Defendant attached the affidavits of: (1) Bernie Ulysse, (2) Kenyata Smoot, and (3) Kenard

          Gray.

¶ 24              In his affidavit, signed on December 11, 2012, Bernie Ulysse averred that he

          presently resided in Florida, and had known defendant as a friend for more than 20 years. He

          further stated:

                       “In the early evening hours of April 16, 2004, I was on the south side of Chicago

                  at approximately 6700 S. Yates, for a memorial celebration following the funeral of a

                  friend who had recently passed away. At this time I am not certain of the exact time I

                  arrived, nor the exact location of the memorial celebration.

                       [Defendant] was also at the funeral and memorial celebration.

                       I remained at the memorial celebration till approximately 3:00 AM the following

                  morning, and at that time, [defendant] was still at the memorial celebration.

                       I do not recall seeing [defendant] leaving the memorial celebration during the

                  time period that I was there.

                       Until recently, I have never been contacted by any attorney associated with

                  [defendant’s] attempt [sic] murder case.”




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¶ 25                In her affidavit, signed on December 10, 2012, Kenyata Smoot averred that she

          presently resided in Chicago, and had known defendant for more than 10 years. She further

          stated:

                       “On the evening of April 16, 2004, I was in the vicinity of 7000 S. Yates in

                    Chicago, Illinois, for a memorial celebration following the funeral of a friend who

                    had recently passed away. At this time I am not certain of the exact location of the

                    memorial celebration.

                       [Defendant] was also at the funeral and memorial celebration.

                       I remained at the memorial celebration till approximately 10 PM, and at that time,

                    [defendant] was still at the location.

                       Until recently, I have never been contacted by any attorney associated with

                    [defendant’s] attempt [sic] murder case.

                       I have had an opportunity to read the attached Motion for Postconviction Relief

                    and certify that the allegations contained within are true and accurate to the best of

                    my knowledge.”

¶ 26                In his affidavit, signed on February 7, 2013, Kenard Gray averred that he presently

          resided in Chicago and had known defendant as a friend for more than 10 years. He further

          stated:

                       “In the early evening hours of April 16, 2004, I was on the south side of Chicago,

                    Illinois, at approximately 6700 S. Yates, for a memorial celebration following the

                    funeral of a friend who had recently passed away. At this time I am not certain of the

                    exact time I arrived, or the exact location of the memorial celebration.

                       I drove to the memorial celebration with [defendant].

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       No. 1-15-0640


                       I remained at the memorial celebration until after 2:00 AM the following

                  morning, and at that time, [defendant] was still at the memorial celebration with me.

                       I do not recall seeing [defendant] leaving the memorial celebration during the

                  time period that I was there.”

¶ 27              On October 18, 2013, the State filed a supplemental motion to dismiss defendant’s

          petition for postconviction relief. The State objected to defendant’s addendum, arguing that it

          was generally improper in light of defendant’s flight from trial. The State also supplemented

          its arguments from its original motion to dismiss, arguing that, even with the affidavits from

          his addendum, defendant failed to make a substantial showing of a constitutional violation.

          Furthermore, the State presented a new argument that defendant had forfeited his

          postconviction claims by not raising them on direct appeal.

¶ 28              On January 31, 2014, defendant filed a response to the State’s motion to dismiss.

          Defendant argued: (1) that he did not forfeit his right to assert a constitutional violation of his

          right to effective assistance of counsel by failing to participate in the underlying trial; (2) that

          he correctly brought his claim for ineffective assistance of counsel in his postconviction

          proceedings rather than on direct appeal; and (3) that he was entitled to an evidentiary

          hearing on the issue of ineffective assistance of counsel.

¶ 29              The postconviction court granted the State’s motion to dismiss on October 3, 2014,

          thereby denying defendant a third-stage evidentiary hearing. The court found, first, that

          defendant’s claim regarding his trial counsel’s refusal to allow his request for a jury trial was

          meritless because the record indicated that defendant voluntarily chose to sign a jury waiver.

          The court also dismissed defendant’s claims of ineffective assistance of counsel regarding the




                                                        12
No. 1-15-0640


   alibi witnesses, calling defendant’s petition a “disingenuous attack.” The postconviction

   court explained its ruling:

                “It seems to the court that–well, first of all, the defendant voluntarily absented

          himself from the proceedings. And, by doing that, he gave up his right to testify; he

          gave up his right to present an alibi defense, if he wanted; and, more importantly, he

          gave up assisting his lawyer.

                His lawyer continued to operate without him, argued vigorously for a finding of

          not guilty. And, basically, the defendant abandoned his counsel at that point and now

          claims that his counsel was ineffective.

                He files a very scant petition for postconviction relief. It’s not accompanied by

          affidavits, supporting affidavits. There are no specifics to this alleged alibi defense,

          and it’s only until the State begins to challenge that the defendant starts to flesh out

          what this whole alibi was. And it is still devoid of specifics. There’s nothing there.

                One of the witnesses that is suggested, Ian Ramsey, there’s still no affidavit on

          file for that person. In fact, current counsel tried to locate this person, and P-C

          counsel wasn’t able to find this person. Defendant still, I think, has still not provided

          any specifics concerning what the alibi is.

                And the affidavits that were presented were basically: We were at a memorial

          service for a friend. And it doesn’t say where the memorial service was. It doesn’t say

          who the friend was. And, frankly, the times are nebulous at best. So in kind of

          looking as to what the affidavits were, the Court is not surprised that an alibi defense

          was not pursued in this matter.




                                                13
       No. 1-15-0640


                       As to whether or not the counsel was ineffective, again, *** [the trial counsel]

                 employed an investigator. He interviewed witnesses that were brought to him. He did

                 all that. He put it down in an answer. He paid an investigator to find them. And then

                 the defendant abandons him. You know, [trial counsel] proceeds, he argues, and he

                 remains on the case and the defense [sic] wasn’t.

                       It is not as if the defendant all of a sudden, seeing the error of his ways, decides to

                 come in and turn himself in. This does not become ripe until he gets rearrested and is

                 brought to court.

                       There is no evidence that [trial counsel] was ineffective. And the Court feels that

                 there is no substantial showing of a constitutional violation in this case. And so the

                 State’s motion to dismiss will be granted.”

¶ 30             Defendant filed a timely notice of appeal on October 24, 2014, and this appeal

          followed.

¶ 31                                              ANALYSIS

¶ 32             On appeal, defendant argues that he made a substantial showing of a constitutional

          violation and that his postconviction petition should proceed to the third stage for an

          evidentiary hearing. For the following reasons, we affirm the postconviction trial court’s

          dismissal of his petition at the second stage.

¶ 33                                 I. The Post-Conviction Hearing Act

¶ 34             The Post-Conviction Hearing Act (Act) “provides a method by which persons 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.” People v. Hodges, 234 Ill. 2d 1, 9 (2009); see 725 ILCS 5/122-1 et seq. (West 2010).

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       No. 1-15-0640


          A postconviction proceeding is not a direct appeal but rather a collateral attack on a prior

          judgment. People v. Barrow, 195 Ill. 2d 506, 519 (2001). To proceed, pursuant to the Act, a

          defendant files a petition in the trial court in which the original proceeding took place.

          Hodges, 234 Ill. 2d at 9. Any postconviction proceeding not involving the death penalty

          contains three distinct stages. Hodges, 234 Ill. 2d at 10.

¶ 35              At the first stage, section 122-2 of the Act requires that a postconviction petition

          must, among other things, “ ‘clearly set forth the respects in which [defendant’s]

          constitutional rights were violated.’ ” Hodges, 234 Ill. 2d at 9 (quoting 725 ILCS 5/122-2

          (West 2006)). A defendant, at the first stage, need only present a limited amount of detail in

          the petition. Hodges, 234 Ill. 2d at 9. Since most petitions are drafted at this stage by pro se

          defendants, the threshold for survival is low and a defendant is only required to allege

          enough facts to make out a claim that shows the “gist” of a constitutional claim. Hodges, 234

          Ill. 2d at 9; see People v. Porter, 122 Ill. 2d 64, 74 (1988) (stating that only a “gist” of a

          constitutional claim is needed at this stage). The trial court independently reviews the petition

          and determines whether “the petition is frivolous or is patently without merit” within 90 days

          of the filing of the petition. Hodges, 234 Ill. 2d at 10. If the court determines that the petition

          is either frivolous or patently without merit, the court dismisses the petition in a written

          order. Hodges, 234 Ill. 2d at 10; see 725 ILCS 5/122-2.1(a)(2) (West 2010). If the court does

          not dismiss the petition, then the petition advances to the second stage, where counsel is

          appointed to indigent defendants (725 ILCS 5/122-4 (West 2010)), and the State then files a

          motion to dismiss or an answer to the petition (725 ILCS 5/122-5 (West 2010)). Hodges, 234

          Ill. 2d at 10-11.




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       No. 1-15-0640


¶ 36             At the second stage, the trial court determines whether the petition and any

          accompanying documentation make a substantial showing of a constitutional violation.

          People v. Pendleton, 223 Ill. 2d 458, 472 (2006). All well-pled facts that are not rebutted by

          the trial record are to be taken as true. Pendleton, 223 Ill. 2d at 473. If no such showing is

          made, the petition is dismissed. People v. Edwards, 197 Ill. 2d 239, 246 (2001). If, however,

          a substantial showing of a constitutional violation is shown, the petition is advanced to the

          third stage, where the trial court conducts an evidentiary hearing. Edwards, 197 Ill. 2d at 246,

          258; Pendleton, 223 Ill. 2d at 471; see 725 ILCS 5/122-6 (West 2010).

¶ 37             At a third-stage evidentiary hearing, the defendant bears the burden of making a

          substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d at 473 (citing People

          v. Coleman, 206 Ill. 2d 261, 277 (2002)). At the hearing, the trial court “may receive proof

          by affidavits, depositions, oral testimony, or other evidence.” 725 ILCS 5/122-6 (West 2010).

          The court also “may order the [defendant] brought before the court.” 725 ILCS 5/122-6

          (West 2010).

¶ 38                                      II. Standard of Review

¶ 39             After second-stage proceedings, we review the trial court’s decision under a de novo

          standard of review. Pendleton, 223 Ill. 2d at 473. Under a de novo standard of review, the

          reviewing court does not need to defer to the trial court’s judgment or reasoning. People v.

          Vincent, 226 Ill. 2d 1, 14 (2007). De novo review is completely independent of the trial

          court’s decision. United States Steel Corp. v. Illinois Pollution Control Board, 384 Ill. App.

          3d 457, 461 (2008). De novo consideration means that the reviewing court performs the same

          analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,

          578 (2011).


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¶ 40                               III. Ineffective Assistance of Counsel

¶ 41              Defendant claims that he received ineffective assistance of counsel based on his trial

          counsel’s failure to investigate and call two alibi witnesses at trial.

¶ 42              The Illinois Supreme Court has held that, to determine whether a defendant was

          denied his or her right to effective assistance of counsel, an appellate court must apply the

          two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon,

          225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting

          Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions

          constituted errors so serious as to fall below an objective standard of reasonableness, and (2)

          absent these errors, there was a reasonable probability that his trial would have resulted in a

          different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466

          U.S. at 687-94). To prevail, the defendant must satisfy both prongs of the Strickland test.

          Colon, 225 Ill. 2d at 135.

¶ 43              Under the first prong of the Strickland test, the defendant must prove that his

          counsel’s performance fell below an objective standard of reasonableness “under prevailing

          professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004).

          In considering whether counsel’s performance was deficient, a court must indulge a strong

          presumption that the challenged action, or inaction, was the result of sound trial strategy.

          People v. Smith, 195 Ill. 2d 179, 188 (2000); People v. Evans, 186 Ill. 2d 83, 93 (1999).

¶ 44              Under the second prong, the defendant must show that, “but for” counsel’s deficient

          performance, there is a reasonable probability that the result of the proceeding would have

          been different. (Internal quotation marks omitted.) Colon, 225 Ill. 2d at 135; Evans, 209 Ill.

          2d at 220. “[A] reasonable probability that the result would have been different is a


                                                        17
       No. 1-15-0640


          probability sufficient to undermine confidence in the outcome–or put another way, that

          counsel’s deficient performance rendered the result of the trial unreliable or fundamentally

          unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant

          was prejudiced by his attorney’s performance. People v. Lacy, 407 Ill. App. 3d 442, 457

          (2011).

¶ 45                In the case at bar, the principal issue on appeal is whether or not defendant has made

          a substantial showing of a constitutional violation under Strickland. However, the parties’

          disagreement on the matter requires that we first discuss the issue of what effect, if any,

          defendant’s voluntary absence during trial had on his right to effective assistance of counsel.

¶ 46                                     A. Effect of Flight During Trial

¶ 47                The State argues that defendant “chose to forego” his alibi defense by voluntarily

          absenting himself from trial after the State rested its case. As the State points out, the

          postconviction court gave significant weight to defendant’s absence at trial when it granted

          the State’s motion to dismiss defendant’s petition. The postconviction court reasoned that

          defendant surrendered certain rights when he voluntarily absented himself from trial, namely,

          the right to testify, the right to present an alibi defense, and the right to assist his lawyer.

          Agreeing with the postconviction court’s assessment, the State argues that defendant’s “own

          abandonment of his alibi defense at trial should be given consideration” by this court in

          determining whether or not defendant made a substantial showing of ineffective assistance.

¶ 48                In his reply brief, defendant counters that there is no legal or factual basis for arguing

          that he waived his right to effective assistance at trial by voluntarily absenting himself from

          the proceedings. Defendant cites McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970), for

          the proposition that “the right to counsel is the right to effective assistance of counsel.”


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          Defendant next argues that a defendant can waive the right to counsel only affirmatively and

          in open court after the trial court has properly admonished the defendant pursuant to Illinois

          Supreme Court Rule 401 (eff. July 1, 1984). Because the record in this case contains no such

          waiver, defendant argues that he never waived his right to counsel, or his right to effective

          assistance of counsel. We agree.

¶ 49             While a defendant does waive certain rights by voluntarily absenting himself from

          trial, there is no legal basis for construing a defendant’s voluntary absence as a waiver of his

          right to effective assistance of counsel. A criminal defendant’s voluntary absence from trial

          may operate as a waiver of the right to be present at trial and the right to confront the

          witnesses against him. People v. Cobian, 2012 IL App (1st) 980535, ¶ 11. In the case at bar,

          defendant does not dispute that he waived his right to be present and to assist in his defense.

          Rather, defendant argues that he did not waive his right to effective assistance of counsel. As

          defendant correctly points out, “ ‘the right to counsel is the right to the effective assistance of

          counsel.’ ” Strickland, 466 U.S. at 686 (quoting McMann, 397 U.S. at 771 n.14). Illinois

          Supreme Court Rule 401 (eff. July 1, 1984) prescribes the procedure for waiving counsel for

          any defendant charged with an offense punishable by imprisonment. Such a defendant can

          waive his right to counsel only in open court after the trial court has properly admonished

          him of the consequences. In the present case, the record contains no such waiver, and so

          defendant did not waive his right to effective assistance of counsel.

¶ 50             As defendant points out, the State cites no legal authority for its argument that

          defendant’s absence should affect his right to effective assistance of counsel. Illinois case law

          has not decided this question. For instance, in Cobian, the defendant absented himself from

          trial and was convicted of murder in absentia. Cobian, 2012 IL App (1st) 980535, ¶ 3. Years


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          later, he was found and arrested. Cobian, 2012 IL App (1st) 980535, ¶ 9. On appeal, after his

          arrest, the defendant argued that he had received ineffective assistance of counsel at trial.

          Cobian, 2012 IL App (1st) 980535, ¶ 17. Without commenting on the defendant’s absence,

          the appellate court applied the normal Strickland test for ineffective assistance of counsel, as

          we do here. Cobian, 2012 IL App (1st) 980535, ¶¶ 1, 17-19.

¶ 51             Thus, in the absence of any legal authority to the contrary, we must conclude that a

          defendant’s voluntary absence from trial does not diminish or otherwise impact defendant’s

          right to effective assistance of counsel.

¶ 52                          B. Substantial Showing of Ineffective Assistance

¶ 53             The remaining and principal issue on appeal is whether or not defendant has made a

          substantial showing of ineffective assistance of counsel, such that he is entitled to a third-

          stage evidentiary hearing. As noted above, a defendant must make a substantial showing that

          his trial counsel was both (1) objectively unreasonable and (2) that this deficiency in counsel

          was prejudicial. Ward, 371 Ill. App. 3d at 434 (citing Strickland, 466 U.S. at 687-94). To

          prevail, a defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill. 2d at 135.

          Thus, for example, “if an ineffective-assistance claim can be disposed of because the

          defendant suffered no prejudice, we need not determine whether counsel’s performance was

          deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the

          remaining prong of the Strickland test if one prong cannot be satisfied. Graham, 206 Ill. 2d at

          476. Because we find that defendant’s trial counsel was not deficient, we need not address

          the issue of prejudice.

¶ 54             The State argues that defendant’s trial counsel was not deficient because the record

          shows that trial counsel “diligently” investigated the alibi defense, employed an investigator,


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          and interviewed “several of the witnesses.” The State argues that, despite counsel’s efforts,

          there was no evidence that any potential witness was willing to testify at trial. The State

          further argues that defendant has failed to show that trial counsel’s decision to forgo an alibi

          defense was objectively unreasonable and not trial strategy.

¶ 55             Defendant, on the other hand, argues that his trial counsel’s failure to interview or call

          the exculpatory alibi witnesses was objectively unreasonable. Defendant counters the State’s

          argument regarding counsel’s “diligent” investigation by pointing out that the record shows

          only that defendant’s trial counsel told the trial court that he had investigated the witnesses

          and the alibi defense. Taking the petition’s allegations as true, defendant argues, we must

          presume that trial counsel failed to contact or interview either witness, despite the fact that

          defendant had provided him with their names and contact information.

¶ 56             An attorney’s decision about whether or not to present a witness is generally a matter

          of strategy that does not support an ineffective assistance of counsel claim. People v. Irvine,

          379 Ill. App. 3d 116, 130 (2008). Nevertheless, an attorney has a professional duty to

          conduct “ ‘reasonable investigations or to make a reasonable decision that makes particular

          investigations unnecessary.’ ” People v. Domagala, 2013 IL 113668, ¶ 38 (quoting

          Strickland, 466 U.S. at 691). This duty encompasses the obligation to investigate any

          possible defenses. Domagala, 2013 IL 113668, ¶ 38. Based on the foregoing principles,

          defendant’s trial counsel had the duty to make a reasonable investigation into defendant’s

          alibi defense.

¶ 57             In certain circumstances, an attorney’s failure to investigate witnesses may constitute

          objectively unreasonable assistance. People v. Bolden, 2014 IL App (1st) 123527, ¶ 38. For

          example, in Bolden, the defendant filed a postconviction petition alleging, in part, that his


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          trial counsel had been ineffective for failing to contact, interview, or call three witnesses.

          Bolden, 2014 IL App (1st) 123527, ¶ 30. The defendant attached affidavits from each

          witness. Bolden, 2014 IL App (1st) 123527, ¶ 32. One witness swore that she had been

          talking to the defendant inside a store at the time of the murder for which he was charged,

          thus, providing a complete alibi. Bolden, 2014 IL App (1st) 123527, ¶ 32. The witness swore

          that she had not been contacted by any attorney or investigator on behalf of the defendant

          until the investigator working on his postconviction petition had contacted her, years after his

          trial. Bolden, 2014 IL App (1st) 123527, ¶ 32. The other two witnesses corroborated parts of

          the alibi witness’s account and swore that they had not been contacted by any attorney or

          investigator for the defendant. Bolden, 2014 IL App (1st) 123527, ¶¶ 33-34. While there was

          evidence that trial counsel had asked an investigator to interview the main alibi witness, there

          was no evidence to contradict the witness’s assertion that no investigator or attorney had

          actually contacted her. Bolden, 2014 IL App (1st) 123527, ¶ 45. This court held that trial

          counsel’s failure to contact the witnesses constituted an “objectively unreasonable

          investigation of the case.” Bolden, 2014 IL App (1st) 123527, ¶ 46.

¶ 58             On the other hand, an attorney’s decision not to call a witness is not objectively

          unreasonable if it was based on trial strategy. People v. Lacy, 407 Ill. App. 3d 442, 466-67

          (2011). For example, in Lacy, this court held that a defendant’s trial counsel was not

          objectively unreasonable for failing to call the defendant’s aunt to testify at his trial. Lacy,

          407 Ill. App. 3d at 466-67. The defendant’s aunt submitted an affidavit stating that the

          defendant had been at her home for the entirety of the night on which he allegedly committed

          armed robbery and aggravated criminal sexual assault elsewhere. Lacy, 407 Ill. App. 3d at

          466. The record showed that someone from trial counsel’s office had talked with the


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          defendant’s aunt, so trial counsel was aware of this witness and her intended testimony. Lacy,

          407 Ill. App. 3d at 467. We reasoned that trial counsel may have reasonably concluded that

          the defendant’s aunt would not be helpful at trial because (1) a jury might have given her

          testimony less weight because she was the defendant’s relative and (2) certain statements in

          the aunt’s affidavit contradicted the evidence in the case. Lacy, 407 Ill. App. 3d at 466-67.

¶ 59             In the present case, defendant’s trial counsel was not objectively unreasonable

          because the record indicates that he did investigate the alibi witnesses. The record shows that

          defendant’s trial counsel was trying to construct an alibi defense–based at least in part on

          Kenard Gray’s testimony–for several months or longer. Defendant’s trial counsel requested

          numerous continuances to investigate alibi witnesses; he told the trial court that he had hired

          an investigator; he told the trial court that he had interviewed “several of the witnesses”; and

          he listed an alibi defense and witnesses including Kenard Gray on a discovery answer.

          Defendant now implies that his trial counsel was lying to the trial court about conducting

          such an investigation and argues that we must take as true the affiants’ statements that

          defendant’s trial counsel never contacted them. However, the affidavits of Bernie Ulysse and

          Kenard Gray, which state that no “attorney” contacted them until recently, conspicuously

          leave open the possibility that an investigator for defendant’s trial counsel contacted them

          and interviewed them before defendant’s trial. The present case thus differs from Bolden,

          where the affiants swore that they were not contacted by either an investigator or attorney

          regarding the defendant’s trial. Accordingly, we can take as true the affiants’ statements that

          they were never contacted by defendant’s trial counsel without having to assume that trial

          counsel was lying to the court about investigating alibi witnesses such as Kenard Gray.




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¶ 60              Furthermore, defendant’s trial counsel could reasonably have concluded, as a matter

          of trial strategy, that Bernie Ulysse and Kenard Gray would not have been helpful at trial.

          Unlike the affidavit of the alibi witness in Bolden, which provided an airtight alibi for the

          defendant by placing him elsewhere at the moment of the crime, the affidavits of Bernie

          Ulysse and Kenard Gray fall short of providing an airtight alibi. Taken together, they

          establish only that defendant arrived at a memorial celebration at some point on the day of

          the crime; that he was there “after” 2 a.m. and 3 a.m., when the affiants left; and that neither

          affiant could “recall” seeing him leave at any point between the early evening and when they

          left. The underlying crime occurred at 1 a.m. As the State points out, defendant could have

          committed the crime and returned in time to be at the memorial celebration when the affiants

          left. 3 The affidavits merely establish that the affiants did not “recall” observing defendant

          leave while they were there. This does not establish that defendant did not leave. Given the

          weaknesses in the alibi that these affidavits provide, defendant’s trial counsel could

          reasonably have concluded, after a reasonable investigation, that foregoing an alibi defense,

          and instead attacking the State’s identification evidence, was sound trial strategy.

¶ 61              Defendant argues that he is entitled to an evidentiary hearing under People v. Morris,

          335 Ill. App. 3d 70 (2002). In Morris, a defendant alleged in his postconviction petition that

          he informed his trial counsel, well before trial, about three witnesses who could provide alibi


              3
               Both affidavits state that the memorial celebration was in the vicinity of “6700 S. Yates.” It is
          unclear whether this refers to 6700 S. Yates Ave., Chicago, IL 60617, or 6700 S. Yates Blvd.,
          Chicago, IL 60649. The former location is approximately 16 miles from Armitage Ave. and Sheffield
          Ave., and approximately a 38-minute drive without traffic (Driving Directions from W. Armitage
          Ave. & N. Sheffield Ave., Chicago, IL 60614, to 6700 S. Yates Ave., Chicago, IL 60617, Google
          Maps, http://maps.google.com). The latter location is approximately 13 miles from Armitage Ave.
          and Sheffield Ave., and approximately a 25-minute drive without traffic (Driving Directions from W.
          Armitage Ave & N. Sheffield Ave, Chicago, IL 60614 to 6700 S. Yates Blvd., Chicago, IL 60649,
          Google Maps, http://maps.google.com). Thus, defendant could feasibly have committed the crime and
          driven back to either potential location of the memorial celebration before the affiants left.

                                                         24
       No. 1-15-0640


          testimony for him at trial. Morris, 335 Ill. App. 3d at 74. The defendant’s trial counsel

          himself submitted an affidavit on behalf of the defendant’s postconviction petition in which

          trial counsel admitted that the defendant had told him about these witnesses before trial; that

          he had failed to inform the State about these witnesses before trial; that he had failed to

          include these witnesses in a discovery response; and that, as a result of his failure to comply

          with discovery rules, he had been unable to call these witnesses at trial, even though two of

          them were present and ready to testify. Morris, 335 Ill. App. 3d at 80. The record also did not

          rebut the defendant’s allegations that his trial counsel had failed to investigate the alibi

          defense or interview the witnesses. Morris, 335 Ill. App. 3d at 83. Based on these facts, the

          appellate court held that the defendant had satisfied the deficiency prong of Strickland.

          Morris, 335 Ill. App. 3d at 83.

¶ 62             The present case is distinguishable from Morris in several respects. First, as discussed

          above, the record here indicates that defendant’s trial counsel did investigate an alibi defense.

          Second, defendant’s trial counsel filed a discovery response listing an alibi defense and

          naming Kenard Gray as a witness. Third, while the witnesses in Morris were at court, willing

          to testify, the record in the present case does not indicate that either witness was even in

          Illinois; Bernie Ulysse’s affidavit states that he lived in Florida in 2012, and the record shows

          that Kenard Gray was traveling with the Navy while defendant’s trial counsel was trying to

          contact him. In sum, in Morris, the court found no evidence of trial strategy in the record to

          excuse the defendant’s trial counsel from investigating the defendant’s alibi, disclosing the

          witnesses or securing their testimony at trial. By contrast, the record here shows that

          defendant’s trial counsel conducted at least some investigation into defendant’s alibi,

          disclosed one of the witnesses and the alibi defense, and would have had reason to believe,


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       No. 1-15-0640


          based on their potential testimony as shown in their affidavits, that calling these witnesses

          would not be sound trial strategy.

¶ 63             Defendant also argues that he is entitled to an evidentiary hearing under People v.

          Cleveland, 2012 IL App (1st) 101631. In Cleveland, a defendant was convicted of murder

          and attempted murder after a trial in which his attorney had presented no evidence or

          witnesses. Cleveland, 2012 IL App (1st) 101631, ¶ 13. Five witnesses submitted affidavits to

          support the defendant’s postconviction petition, in which they swore that they had presented

          themselves to the defendant’s trial counsel, offering exculpatory testimony. Cleveland, 2012

          IL App (1st) 101631, ¶¶ 14, 18-19, 25-26. One witness swore she observed the crime

          transpire and swore that the defendant was not involved. Cleveland, 2012 IL App (1st)

          101631, ¶ 18. Another witness swore that the defendant was at her home at the time of the

          crime. Cleveland, 2012 IL App (1st) 101631, ¶ 14. These witnesses swore that they contacted

          the defendant’s attorney and offered their testimony, but that the attorney either never

          contacted them or never called them to testify. Cleveland, 2012 IL App (1st) 101631, ¶¶ 14,

          18-19, 25-26. The appellate court held that, in the absence of any reasonable strategy in the

          record, “counsel’s decision to call no witness when several exculpatory witnesses presented

          themselves, according to the affidavits, constitutes a substantial showing that his

          representation was objectively unreasonable.” Cleveland, 2012 IL App (1st) 101631, ¶ 60.

¶ 64             The present case is distinguishable from Cleveland. First, in Cleveland the

          exculpatory witnesses had presented themselves to the defendant’s attorney, and yet the

          attorney chose not to pursue or present their testimony. Cleveland, 2012 IL App (1st)

          101631, ¶¶ 14, 18-19, 25-26. By contrast, in the present case, there is no evidence that either

          witness reached out to defendant’s trial counsel, or was even physically present in Illinois.


                                                      26
       No. 1-15-0640


          Trial counsel told the court that he was investigating these witnesses, that he hired a private

          investigator, and that he interviewed several of the witnesses. The affidavits do not foreclose

          the possibility that the private investigator contacted and interviewed the two witnesses.

          Second, at least one of the witnesses in Cleveland positively confirmed that the defendant

          was not involved in the crime. Cleveland, 2012 IL App (1st) 101631, ¶ 18. By contrast, the

          affidavits of Bernie Ulysse and Kenard Gray could be consistent with defendant having

          committed the crime. Based on this key difference alone, defendant’s trial counsel may have

          decided, as a matter of trial strategy, to forego offering them as alibi witnesses.

¶ 65             Thus, defendant’s trial counsel was not objectively unreasonable for choosing not to

          call Bernie Ulysse or Kenard Gray at trial. Under Strickland, we must attempt to reconstruct

          the circumstances of counsel’s challenged conduct at the time, indulging a strong

          presumption that counsel’s behavior was reasonable under the circumstances. Strickland, 466

          U.S. at 689. A favorable reconstruction of the circumstances shows that defendant’s trial

          counsel conducted a reasonable investigation into defendant’s alibi defense, and could have

          reasonably concluded that the testimony of Bernie Ulysse and Kenard Gray would not have

          helped at trial. “Where circumstances known to counsel at the time of his investigation do not

          reveal a sound basis for further inquiry in a particular area, it is not ineffective for the

          attorney to forgo additional investigation.” People v. Pecoraro, 175 Ill. 2d 294, 324 (1997).

          The postconviction court concluded, in light of the deficiencies of the affidavits of Bernie

          Ulysse and Kenard Gray, that it was not surprised that defendant’s trial counsel had not gone

          forward with an alibi defense. We agree.




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¶ 66                                         CONCLUSION

¶ 67             Defendant has failed to make a substantial showing that he was deprived of his

          constitutional right to effective assistance of counsel. Indulging a strong presumption in favor

          of defendant’s trial counsel, we find that defendant’s trial counsel made a reasonable

          investigation into the alibi defense and alibi witnesses, and could have had sound reasons for

          choosing not to present this defense at trial. Accordingly, we conclude that defendant’s trial

          counsel did not provide ineffective assistance.

¶ 68             Affirmed.




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