                                       2018 IL App (3d) 160271

                              Opinion filed November 5, 2018
     _____________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                  2018

     THE PEOPLE OF THE STATE OF            )    Appeal from the Circuit Court
     ILLINOIS,                             )    of the 10th Judicial Circuit,
                                           )    Peoria County, Illinois.
           Plaintiff-Appellee,             )
                                           )    Appeal No. 3-16-0271
           v. 	                            )    Circuit No. 11-CF-104

                                           )

     GORDON K. MOORE II,                   )    The Honorable

                                           )    Albert L. Purham Jr.,
           Defendant-Appellant.            )    Judge, presiding.
     ____________________________________________________________________________

           PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices McDade and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          After a stipulated bench trial, defendant, Gordon K. Moore II, was convicted of first

     degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) and sentenced to 45 years in prison.

     Defendant’s conviction and sentence were affirmed on direct appeal. People v. Moore, 2013 IL

     App (3d) 120275-U, ¶¶ 1, 19. Defendant filed a pro se postconviction petition, alleging actual

     innocence based on newly discovered evidence. The trial court summarily dismissed the petition

     in the first stage of proceedings. Defendant appeals, arguing that (1) the trial court erred in

     summarily dismissing his postconviction petition, and (2) certain fines that were imposed upon

     him as part of his sentence must be vacated because the fines were imposed by the circuit clerk
     and not ordered by the trial court. We affirm the trial court’s summary dismissal of defendant’s

     postconviction petition and dismiss the remainder of defendant’s appeal for lack of appellate

     jurisdiction.

¶2                                                 FACTS

¶3           In February 2011, defendant was charged with first degree murder for the stabbing death

     of his estranged wife, Teresa Moore. In pretrial discovery, defendant notified the State that he

     intended to assert at trial that “he suffered serious provocation, which when viewed in light of

     [his] depressed mental state, caused him to act under a sudden and intense passion.” In other

     words, defendant was going to try to raise at trial that the killing was second degree murder and

     not first degree murder. To support that assertion, defendant planned to have two mental health

     professionals who had seen defendant both before and after the offense testify as expert

     witnesses at trial regarding defendant’s mental state at the time of the offense and the effect that

     the pending divorce, the potential loss of his children, and defendant’s use of alcohol and

     prescription medication had on his mental state. The State filed a motion in limine to exclude that

     testimony. A hearing was later held on the motion.

¶4           At the hearing, the trial court reviewed a report from one of the proposed expert

     witnesses and a letter from the other. Of relevance to this appeal is the report. The report

     indicated that, about six months after the killing occurred, defendant talked to the doctor about

     the events leading up to Teresa’s death. Defendant stated that he had been living with his parents

     and that Teresa had told him that she did not love him anymore. On the day of the murder,

     defendant agreed to meet Teresa at the couple’s home to discuss the terms of their divorce.

     Defendant knew it would be difficult, so he drank 5 beers and took 12 Vicodin tablets before the

     meeting. After an hour of discussion, Teresa told defendant that she was going to file for sole


                                                      2

     custody of the couple’s three children and move out of state to be with a man she met online. At

     that point, defendant and Teresa were in the garage. Defendant became “hysterically blind” and

     “blacked out.” He felt, enraged, lost, and hopeless. When defendant woke up, he had a knife in

     his hand and blood was everywhere. Defendant noticed that Teresa was not breathing, and he

     wanted to end his own life. He then stabbed himself and collapsed.

¶5          At the conclusion of the hearing, the trial court granted the State’s motion in limine. In so

     doing, the trial court found that the proposed expert witness testimony was irrelevant because

     there was no proof of any legally recognized form of provocation. The trial court indicated that

     the form of provocation that was potentially applicable in this case was mutual combat but noted

     that defendant had made no showing that mutual combat occurred between him and Teresa.

¶6          In January 2012, the case proceeded to a stipulated bench trial. The evidence adduced at

     the stipulated bench trial showed that on the date in question, defendant went to the couple’s

     home and had a conversation with Teresa. The couple’s 14-year-old daughter, E.M., was present

     in the home at the time, as was their 3-year old son. An argument ensued between defendant and

     Teresa, and defendant was cursing and yelling. Teresa and E.M. told defendant to leave several

     times, but defendant refused. As E.M. was taking her little brother back to his room, she heard

     the door to the garage open and heard a thud come from the garage. E.M. ran to the garage and

     found defendant on top of Teresa. Defendant was grinding a knife back and forth into the front of

     Teresa’s throat area. Teresa was on her back on the garage floor, was covered in blood, and was

     barely breathing. E.M. jumped on defendant’s back and started hitting him with her fists to try to

     save Teresa. Defendant continued to stab Teresa, stating over and over again that he loved

     Teresa and the children. Realizing that she could not help Teresa, E.M. went back into the house,

     grabbed her little brother, and started to run to a neighbor’s house for help. As she ran through


                                                     3

     the garage, she saw defendant use the same knife to cut himself in the neck area. When E.M. got

     to the neighbor’s house, the neighbor called 911. Police officers arrived shortly thereafter and

     found defendant and Teresa in the garage covered in blood. A police officer checked Teresa’s

     vital signs but could not find a pulse. The officer could see that Teresa had a large laceration to

     her throat. The officer checked defendant’s vital signs. Defendant had a pulse and was breathing.

     Upon inquiry, defendant told police, fire, and ambulance personnel that he “did it,” that he was

     sorry, and that he did not want or deserve to live. An autopsy showed that Teresa had suffered

     nine stab wounds to her chest, including one that involved the right ventricle of her heart; two

     large stab wounds to her neck that transected her upper airway and her right carotid artery; and

     nine “defensive-type” stab wounds to her right and left hands, wrists, and fingers. The knife that

     was used in the stabbing was identified as a knife that belonged to defendant that he always

     carried on his person.

¶7          At the conclusion of the stipulated bench trial, the trial court found defendant guilty of

     first degree murder. The trial court later sentenced defendant to 45 years in prison. As part of the

     sentencing order, the trial court took a judgment against defendant for court costs and ordered

     defendant to pay a $200 deoxyribonucleic acid (DNA) testing fee. No other fines, fees, or costs

     were ordered by the trial court. The circuit clerk, however, subsequently imposed the following

     financial assessments, among others, against defendant: (1) a $0.25 “Circuit Clerk Oper/Adm

     Fund” assessment, (2) a $15 “State Police Operation Assistance Fund” assessment, (3) a $10

     “State Police Services Fund” assessment, (4) a $7.50 lump sum surcharge, (5) a $3 “Violent

     Crime Fund” assessment, (6) a $50 “Court Usage” assessment, (7) a $4.75 “Drug Court Fund”

     assessment, (8) a $10 “Drug Court Operation” assessment, (9) a $10 “Medical Costs Fund”

     assessment, and (10) a $10 “State’s Attorney Juvenile Expenses” assessment.


                                                      4

¶8            Defendant filed a direct appeal and challenged the trial court’s grant of the State’s motion

       in limine. This court affirmed the trial court’s judgment. Moore, 2013 IL App (3d) 120275-U,

       ¶¶ 1, 19.

¶9            In April 2016, defendant filed the instant pro se postconviction petition. In the petition,

       defendant alleged a claim of actual innocence based on newly discovered evidence. More

       specifically, defendant asserted that he could now remember what had happened during the

       incident and remembered that prior to his stabbing Teresa, Teresa had struck him about the head

       and face and had tried to stab defendant with his own pocket knife. According to defendant, he

       grabbed Teresa’s hand that had the knife in it, pushed Teresa through the doorway into the

       garage, and fell on top of her. Defendant snapped, grabbed the knife from Teresa, and began

       stabbing her. Defendant did not come out of that enraged state until he felt his daughter jump on

       his back. It was then that he attempted to take his own life.

¶ 10          Later that same month, the trial court summarily dismissed defendant’s postconviction

       petition in the first stage of proceedings. Defendant appealed to challenge the trial court’s ruling.

¶ 11                                               ANALYSIS

¶ 12                           I. Dismissal of Defendant’s Postconviction Petition

¶ 13          On appeal, defendant argues that the trial court erred in summarily dismissing

       defendant’s pro se postconviction petition in the first stage of proceedings. Defendant asserts that

       his petition was sufficient to state the gist of a constitutional claim of actual innocence of first

       degree murder based upon newly discovered evidence in the form of defendant’s recovered

       memory regarding the events leading up to his wife’s death. More specifically, defendant

       contends that since trial, he has recovered enough of his memory to assert that he was acting in

       self-defense when his wife’s death occurred or, alternatively, to assert that at the time of his


                                                         5

       wife’s death, he was acting under serious provocation as a result of mutual combat or based upon

       an unreasonable belief in the need for self-defense. Defendant asserts further that the newly

       discovered evidence, as set forth in his postconviction affidavit, is material and noncumulative;

       that it places the evidence presented at trial in a different light; and that it is sufficient to undercut

       the court’s confidence in the factual correctness of the guilty verdict because it creates, at the

       very least, a second degree murder claim, and at most, a claim for complete exoneration. In

       making those assertions, defendant maintains that his affidavit is not materially contradicted by

       other evidence and that his affidavit is the only evidence of the events leading up to his wife’s

       death. Defendant also asserts that under Illinois Supreme Court precedent and contrary to the

       Fifth District Appellate Court’s decision in People v. Wingate, 2015 IL App (5th) 130189, ¶ 24,

       a case upon which defendant expects the State to rely, defendant is not required to establish that

       he would be entitled to complete exoneration of all crimes to establish a claim of actual

       innocence. For those reasons, defendant asks that we reverse the trial court’s summary dismissal

       of defendant’s postconviction petition and that we remand this case for second-stage

       proceedings, including the appointment of postconviction counsel for defendant.

¶ 14           The State argues that the trial court properly dismissed defendant’s postconviction

       petition in the first stage of proceedings as being frivolous and patently without merit and that

       the trial court’s ruling, therefore, should be upheld. In support of that argument, the State makes

       two primary assertions. First, the State asserts that defendant’s recovered memory does not

       constitute newly discovered evidence under the law. As support for that assertion, the State cites

       one case from Illinois (People v. Williams, 242 Ill. 197, 204-08 (1909) (finding that the

       defendant’s recovery memory that he was at home when the larceny at issue occurred was not

       newly discovered evidence so as to warrant a new trial but, rather, was evidence of facts that


                                                           6

were known to the defendant, were forgotten, and were not diligently presented)) and a few

additional cases from some other states (United States v. Wapnick, 202 F. Supp. 716, 717-18

(E.D.N.Y. 1962) (concluding that the defendant’s revived memory of when he went to a

basketball game and met a certain car thief, which was contrary to the testimony of the

government’s rebuttal witness, was not newly discovered evidence so as to require a new trial);

State v. Pittman, 221 S.W.2d 163, 164-65 (Mo. 1949) (holding that the defendant’s recovered

memory that a certain person had telephoned the defendant’s home and had spoken to the

defendant at the time of the rape, which could be offered to corroborate the defendant’s alibi

defense, was not newly discovered evidence so as to warrant a new trial); State v. Jiron, 882 P.2d

685, 688-89 (Utah Ct. App. 1994) (finding that although recovered memory, such as from

amnesia, could constitute newly discovered evidence, the defendant’s recovered memory in that

case of the events leading up to the alleged automobile accident that resulted in murder and arson

convictions against the defendant was not newly discovered evidence warranting a new trial

because the defendant failed to establish that the evidence could not, with reasonable diligence,

have been discovered and produced at trial)). Second, and in the alternative, the State asserts that

even if defendant’s recovered memory was considered newly discovered evidence, defendant’s

petition was still properly dismissed because defendant failed to establish the gist of a

constitutional claim since his claim of self-defense was positively rebutted by the record and

since his claim of second degree murder does not qualify as a claim of actual innocence under

the law. As anticipated by defendant, the State relies upon the Wingate decision in support of the

latter contention (see Wingate, 2015 IL App (5th) 130189, ¶ 24). For all of the reasons set forth,

the State asks that we affirm the trial court’s summary dismissal of defendant’s postconviction

petition.



                                                 7

¶ 15          The Post-Conviction Hearing Act (Act) establishes a procedure for an imprisoned

       criminal defendant to collaterally attack his conviction or sentence based upon a substantial

       violation of federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2016); People v.

       Collins, 202 Ill. 2d 59, 65 (2002). In the first stage of proceedings under the Act, the trial court

       has 90 days to independently review the postconviction petition, taking the allegations as true,

       and to determine whether the petition is frivolous or patently without merit in that it fails to state

       the gist of a constitutional claim. 725 ILCS 5/122-2.1(a)(2) (West 2016); People v. Hodges, 234

       Ill. 2d 1, 9-10 (2009). If the trial court finds in the first stage of proceedings that the petition is

       frivolous or patently without merit, it shall summarily dismiss the petition in a written order. See

       725 ILCS 5/122B2.1(a)(2) (West 2016); Hodges, 234 Ill. 2d at 10. Such a dismissal is subject to

       de novo review on appeal (Hodges, 234 Ill. 2d at 9) and may be affirmed on any basis supported

       by the record (see People v. Little, 335 Ill. App. 3d 1046, 1051 (2003)).

¶ 16          Because the conviction of an innocent person violates the due process clause of the

       Illinois Constitution, an imprisoned criminal defendant has a right in a postconviction petition to

       assert a claim of actual innocence based upon newly discovered evidence. People v. Morgan,

       212 Ill. 2d 148, 154 (2004). From a procedural standpoint, a claim of newly discovered evidence

       is resolved in the same manner as any other claim brought under the Act. People v. Ortiz, 235 Ill.

       2d 319, 333 (2009). To prevail on such a claim, a defendant must show that the evidence is

       “newly discovered,” material and not cumulative of other evidence presented at trial, and of such

       a conclusive character that it would probably change the result upon retrial. Morgan, 212 Ill. 2d

       at 154. For evidence to be considered “newly discovered,” it must be evidence that was not

       available at the defendant’s original trial and that the defendant could not have discovered sooner

       by the exercise of due diligence. Id.


                                                         8

¶ 17          In the present case, to determine whether defendant’s recovered memory constitutes

       newly discovered evidence under Illinois law, we need only look to our supreme court’s decision

       in Williams. In that decision, which was made over 100 years ago, our supreme court rejected a

       similar argument made by a defendant in a motion for a new trial in a criminal case. See

       Williams, 242 Ill. at 204-08. In so doing, our supreme court stated:

                           “It would be a dangerous rule to grant a new trial upon an ex parte statement

                      that certain material facts which had previously been known had been forgotten. It

                      may be that in a sense a forgotten fact is practically the same as if it had never

                      been known, but the liability to fraud and the temptation to perjury in such cases

                      forbid that a new trial should be granted because the party against whom a verdict

                      has gone makes oath that he has forgotten material parts of his evidence. In order

                      to prevent, so far as possible, fraud and imposition which defeated parties may be

                      tempted to practice as a last resort to escape the consequence of an adverse

                      verdict, applications for new trial on account of newly discovered evidence should

                      always be subjected to the closest scrutiny by the court. The rules of law which

                      govern in such cases, if carefully observed, will generally accomplish justice.

                      There is, of course, a bare possibility that a rigid adherence to these rules may in

                      exceptional cases work an injustice; but this is unavoidable. Neither the law nor

                      the means of enforcing it are infallible, nor are the methods appointed by the law

                      for the discovery of truth and the detection of error immune from mistakes; but it

                      is far better that a single person should suffer mischief than that the rules be so

                      relaxed that every litigant will have it within his power, by keeping back part of




                                                        9

                      his evidence and then swearing that it was forgotten, to destroy a verdict and

                      obtain a new trial at his pleasure.” Id. at 207-08.

¶ 18          The rationale stated in Williams is equally applicable under the facts of the present case

       and, indeed, is the same position that has been adopted by a majority of other jurisdictions, albeit

       in the context of motions for new trial. See A. Petry, Annot., Facts or Evidence Forgotten at

       Trial as Newly Discovered Evidence Which Will Warrant Grant of New Trial in Criminal Case,

       92 A.L.R.2d 992 (1963) (“[i]t is a well-settled rule of law, established both by judicial decision

       and by statute, that forgotten facts do not ordinarily constitute such newly discovered evidence as

       will justify a new trial, and that the want of recollection of a fact which by due diligence and

       attention might have been remembered, is not ground for a new trial in a criminal case”). We

       believe that the same rule would also apply to claims of recovered memory in a postconviction

       proceeding, such as in the instant case. We find, therefore, that defendant’s recovered memory of

       the events leading up to his wife’s death did not constitute newly discovered evidence under the

       law. See Williams, 242 Ill. at 204-08.

¶ 19          We note, however, that even if we were to find that defendant’s recovered memory

       constituted newly discovered evidence, we would still have to conclude that defendant’s

       postconviction petition failed to state the gist of a constitution claim and was properly dismissed

       for two reasons. First, as to defendant’s claim of self-defense, the record in this case clearly

       rebutted that claim. Defendant’s own affidavit established that he was not acting in self-defense

       at the time of Teresa’s death since defendant averred that Teresa was on the ground, that he was

       on top of her, that he had taken the knife away from her, that he had the knife in his hand, and

       that he went into a rage and started stabbing her. Even in a light most favorable to defendant, we

       cannot find that those statements would establish the gist of a claim of self-defense. See People


                                                        10 

        v. Belpedio, 212 Ill. App. 3d 155, 160-61 (1991) (recognizing that the use of self-defense must,

        among other things, be reasonable and necessary and not for the purpose of retaliation). In

        addition, the evidence presented at the stipulated bench trial clearly negated any possible claim

        of self-defense as Teresa had been stabbed nine times in the chest, two times in the neck, and had

        nine stab wounds of a defensive nature to her hands. See id. at 161 (indicating that if a person

        responds to a confrontation with such excessive force that he is no longer acting in self-defense

        but in retaliation, the excessive use of force makes that person the aggressor).

¶ 20            Second, we agree with the appellate court in Wingate that a defendant’s claim of second

        degree murder does not constitute a claim of actual innocence under Illinois law. See Wingate,

        2015 IL App (5th) 130189, ¶ 24. Rather, to constitute a claim of actual innocence, a defendant’s

        claim has to be able to completely exonerate defendant of the offense in question and all related

        offenses. See id. Thus, defendant’s claim of second degree murder in the instant case does not

        establish the gist of a constitutional claim. See id.

¶ 21	           In reaching that conclusion, we note that contrary to defendant’s assertion on appeal, the

        decision in Wingate does not run afoul of the decisions of our supreme court on cases of actual

        innocence. See, e.g., People v. Washington, 171 Ill. 2d 475, 489 (1996) (stating that for a

        defendant to be entitled to relief on a postconviction claim of actual innocence based on newly

        discovered evidence, the supporting evidence must be new, material, noncumulative, and of such

        a conclusive character as would probably change the result on retrial); Morgan, 212 Ill. 2d at 154

        (same); People v. Coleman, 2013 IL 113307, ¶ 96 (reaffirming the standard set forth in

        Washington for postconviction claims of actual innocence based on newly discovered evidence).

        Rather, the appellate court in Wingate applied a more specific rule under the particular facts of

        that case—where a defendant was raising in a postconviction petition a claim that newly


                                                          11 

       discovered evidence could reduce his first degree murder conviction to second degree murder.

       See Wingate, 2015 IL App (5th) 130189, ¶ 24. That is the exact same claim that defendant raised

       in the instant case. We find, therefore, that the Wingate decision is applicable here and that

       defendant’s claim did not constitute a claim of actual innocence. See id.

¶ 22                            II. Imposition of Certain Fines Upon Defendant

¶ 23          As his second point of contention on appeal, defendant argues, and the State agrees, that

       certain fines imposed upon defendant in the trial court must be vacated because the fines were

       imposed by the circuit clerk and were not ordered by the trial court. See People v. Strong, 2016

       IL App (3d) 140418, ¶ 8 (the imposition of a fine is a judicial act; the circuit clerk has no

       authority to impose fines not ordered by the trial court); People v. Johnson, 2015 IL App (3d)

       140364, ¶¶ 9-12 (recognizing that certain assessments imposed on the defendant were fines that

       could not be imposed by the circuit clerk); People v. Burnett, 2016 IL App (3d) 140837, ¶ 8

       (same). However, pursuant to our supreme court’s recent ruling in People v. Vara, we have no

       jurisdiction to rule upon this issue and must dismiss that portion of defendant’s appeal. See

       People v. Vara, 2018 IL 121823, ¶¶ 23, 30 (finding that the appellate court had no jurisdiction to

       review fines that were imposed upon the defendant by the circuit clerk, and not by the trial court,

       because the entry of the fines by the clerk was a ministerial function and not a judgment—void

       or otherwise). Any questions as to the accuracy of the financial assessments imposed upon

       defendant as recorded in the circuit clerk’s records must be resolved through the cooperation of

       the parties and the circuit clerk or by the circuit court in a mandamus proceeding. See id. ¶ 31.

¶ 24                                            CONCLUSION




                                                       12 

¶ 25          For the foregoing reasons, we affirm the trial court’s summary dismissal of defendant’s

       pro se postconviction petition in the first stage of proceedings and dismiss the remainder of

       defendant’s appeal for lack of appellate jurisdiction.

¶ 26          Affirmed in part and dismissed in part.




                                                        13 

