                                   2015 IL App (1st) 121928

                                                                   FIRST DIVISION
                                                                   DECEMBER 21, 2015

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THE PEOPLE OF THE STATE OF ILLINOIS,                )      Appeal from the
                                                    )      Circuit Court of
                      Plaintiff-Appellee,           )      Cook County.
                                                    )
v.                                                  )      No. 05 CR 8598
                                                    )
LATRICE BURNS,                                      )      Honorable
                                                    )      Clayton J. Crane,
                      Defendant-Appellant.          )      Judge Presiding.

       JUSTICE CUNNINGHAM delivered the judgment of the court.
       Justices Connors and Delort concurred in the judgment.

                                            OPINION


¶1     On May 12, 2014, this court entered an order affirming the trial court's summary

dismissal of defendant-appellant Latrice Burns' pro se petition for relief under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On September 30, 2015,

the Illinois Supreme Court entered a supervisory order directing us to vacate our May 2014 order

and reconsider the matter in light of our supreme court's subsequent decision in People v. Allen,

2015 IL 113135. We now conclude that pursuant to Allen, the defendant's postconviction

petition was improperly dismissed at the first stage of postconviction proceedings. Accordingly,

we vacate our May 2014 order, reverse the trial court's summary dismissal of the defendant's

petition, and remand the matter for second-stage postconviction proceedings.

¶2                                     BACKGROUND

¶3      The defendant appeals from an order entered by the circuit court of Cook County which

summarily dismissed her pro se petition for relief under the Act. She contends that her petition
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set forth a claim with an arguable basis in law and fact that her trial counsel was ineffective for

failing to call a codefendant whose testimony would have been exculpatory.

¶4     After a jury trial, the defendant was convicted of first-degree murder and armed robbery.

The State's theory at trial was that the defendant was accountable for the actions of two men,

Dorwin Davis (Davis) and William Kenlow (Kenlow), who robbed and shot to death the victim,

Lionell Reed, on March 17, 2005. The State's primary evidence against defendant consisted of

statements she made to investigating authorities after the incident. The defendant, who testified

in her own defense, denied that she knew of Davis and Kenlow's plan to rob the victim and

asserted that her statements were coerced and untruthful.

¶5     At trial, assistant State's Attorney Cathleen Dillon testified about a videotaped statement

the defendant made after the shooting. In that statement, which was presented to the jury, the

defendant stated that Davis was her ex-boyfriend and she knew Kenlow from the neighborhood.

In the afternoon of March 17, 2005, Davis called the defendant to ask if she would drive him to

buy shoes from a man who sold them on the street. Later, the defendant picked up Davis and

Kenlow and drove them to "get the shoes" from the victim, who was supposedly at 95th Street

and the Dan Ryan Expressway (Dan Ryan). On the way, Kenlow asked Davis how they were

going to obtain the shoes. Davis said he would "[beat] the man ass and take the shoes," and

Kenlow added that "we might as well lay him down or lay him out and take the car too." The

defendant understood this to mean that Kenlow suggested that he and Davis shoot the victim.

Davis responded that they only needed to take the shoes.

¶6     After they arrived at 95th Street and the Dan Ryan, Davis and Kenlow did not see the

intended victim. Davis used the defendant's cellular phone to call the victim, who directed Davis

to meet him nearby. The defendant drove Davis and Kenlow to that location and parked,



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whereupon Davis left to get the shoes while Kenlow stayed in the car. At that point, the

defendant claimed that she thought Davis would only beat the victim and take the shoes. While

the defendant and Kenlow waited in the defendant's car, Kenlow received a call from Davis

asking for $10 because he was "short." Kenlow left the car to meet Davis. The defendant waited

in the car for Davis and Kenlow.

¶7     A few minutes later, the defendant heard a gunshot and saw Davis and Kenlow running

toward her car, with Davis carrying a box of shoes. The defendant unlocked the car door for

Davis and Kenlow. When the defendant asked what happened, they told her to "go" because

someone was shooting. The defendant drove away. Soon after, the defendant's car was stopped

by the police.

¶8     Detective Cedric Parks testified about a statement that the defendant made to him after

the incident, which recounted largely the same events that the defendant described in her

videotaped statement. Additionally, the defendant told Detective Parks that after her car was

stopped, police recovered a gun from the backseat.

¶9     The State presented evidence that the victim died of a gunshot wound to the chest.

Additionally, a test for gunshot residue was positive for Davis and negative for Kenlow.

¶ 10   Testifying in her defense, the defendant asserted that she knew nothing about plans to rob

and kill the victim, and that she thought Davis was planning to buy shoes. She testified that

Davis asked her whether she would take him to buy shoes from a man who sold them, and

though she was reluctant at first, she eventually agreed. Later, she drove Davis and Kenlow to

95th Street and the Dan Ryan to make the purchase. The defendant denied that Davis and

Kenlow discussed planning a robbery on the way to meet the victim. When they arrived and did

not see the man who sold shoes, Davis used the defendant's cellular phone to call him, and then



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directed the defendant to a location nearby. After Davis made a second call, he left the car while

Kenlow remained in the car. Davis then called Kenlow to ask for $10 because he was "short."

Kenlow agreed to bring $10 to Davis. When Kenlow left the car, the defendant believed he was

going to give Davis $10. The defendant then heard a gunshot and saw Davis and Kenlow

running toward her car. This prompted the defendant to think that someone may have been

chasing or shooting at them. Davis and Kenlow entered the car and told the defendant to "go"

because someone was shooting. The defendant drove away and was soon stopped by the police.

¶ 11   The defendant testified that when she was being questioned by detectives, she repeatedly

told them that she did not know about the robbery, but was told she was lying. Additionally,

Detective Parks told the defendant that Davis and Kenlow had implicated her in the robbery; that

all three of them would be charged with murder; and that she needed to "start talking."

According to the defendant, Detective Parks told her that if she said she knew about the robbery,

she would go home. Eventually, she told the detective "what he wanted to hear." The defendant

testified that her statement to the assistant State's Attorney was true "except for the part about me

knowing about the robbery." The defendant testified that she had thought that what she said on

the videotape did not matter because she would be going home.

¶ 12   Following deliberations, the jury found the defendant guilty of first-degree murder and

armed robbery and she was sentenced to consecutive prison terms for those offenses.

¶ 13   On direct appeal, the defendant argued that her guilt was not established beyond a

reasonable doubt and that she was entitled to a new trial because: (1) the trial court prevented her

from fully presenting her defense; (2) her trial counsel was ineffective for failing to request jury

instructions on withdrawal and a separate jury verdict form for felony murder; (3) her trial

counsel presented final argument that diminished the effect of her character witnesses; and (4)



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the prosecutor denied her a fair trial by improperly denigrating that same character evidence. On

August 27, 2008, this court affirmed the defendant's convictions and sentences. People v. Burns,

No. 1-06-1026 (2008) (unpublished opinion under Supreme Court Rule 23), appeal denied, No.

107648 (Jan. 28, 2009).

¶ 14   The defendant filed a pro se postconviction petition on September 10, 2010.             The

defendant alleged, among other issues, that her sixth amendment right to effective assistance of

counsel (U.S. Const., art. VI) was violated because her counsel refused to "try to get one of [her]

'willing codefendants' on the stand" when she asked him to do so. The defendant averred that

this codefendant could have testified to the fact that she "knew nothing about a scam" to commit

a crime. However, her counsel refused out of concern that the codefendant might "flip the

script" on her.

¶ 15   Attached to the defendant's postconviction petition was an affidavit from Davis, in which

he recounted the events of March 17, 2005. In that document, he claims that he called the

defendant to ask if she could drive him to buy shoes, and that she later picked up Davis and

Kenlow. While the defendant was driving, Davis called the person from whom he planned to

buy shoes and agreed to meet at a specific location. "Nothing was discussed" on the way to that

location and they listened to the car radio. When they arrived at 95th Street, the defendant let

Davis out of the car and went to park the car. Between the time Davis called the defendant

earlier in the day and when he left the car, they "never talked about anything concerning any

crimes or criminal behavior because there was nothing taking place." Davis further averred that

"the only thing [defendant] was doing is driving me to purchase some [shoes] and that is the

extent [of] her knowledge of anything that transpired that day." Davis' affidavit, which was

attached to the defendant's petition, was not notarized.



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¶ 16   Following the affidavit was a document signed and dated by Davis that stated:

                       "Pursuant to 28 USC 1746, 18 USC 1621 or 735 ILCS 5/1-

               109, I declare, under penalty of perjury, that everything contained

               herein is true and accurate to the best of my knowledge and belief.

               I do declare and affirm that the matter at hand is not taken either

               frivolously or maliciously and that I believe the foregoing matter is

               taken in good faith."

¶ 17   On December 3, 2010, the circuit court dismissed defendant's petition as frivolous and

patently without merit. In part, the trial court found that counsel's explanation for not calling

Davis —fear that he could testify unfavorably—supported the conclusion that counsel's decision

was sound trial strategy.

¶ 18   The defendant filed a notice of appeal on September 12, 2013. On May 12, 2014, this

court issued an order in which we agreed with the State's argument that the defendant's petition

was properly dismissed because Davis' affidavit was unsworn and in violation of section 122-2

of the Act, which states that a postconviction petition shall attach "affidavits, records, or other

evidence supporting its allegations or shall state why the same are not attached." 725 ILCS

5/122-2 (West 2012). In affirming the dismissal of the defendant's petition, we held that Davis'

affidavit failed to comply with section 122-2 because the affidavit was not notarized, the

defendant provided no explanation as to why she could not obtain a notarized affidavit, and there

was no other evidence to support the allegations in the affidavit. We further noted that Davis'

affidavit did not affirmatively state that he was willing to waive his right against self-

incrimination to testify on the defendant's behalf.




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¶ 19      On September 30, 2015, our supreme court issued a supervisory order directing us to

vacate our May 2014 order and to reconsider the matter to determine if another result was

warranted in light of its subsequent decision in People v. Allen, 2015 IL 113135.

¶ 20                                      ANALYSIS

¶ 21      Upon consideration of our supreme court's decision in Allen, we conclude that this case

warrants reversal of the trial court's first-stage dismissal of the defendant's petition.

¶ 22      The Allen decision concerned a postconviction petition in which the defendant alleged his

innocence of the underlying murder and robbery and claimed that his conviction resulted from

perjury and coerced confessions. Id. ¶ 14. Attached to his petition was a signed statement

purporting to be from an inmate named Robert Langford (Langford statement), which certified

that it was made under penalty of perjury. Id. The Langford statement claimed that Langford

and an accomplice had killed the victim and that the defendant was innocent. Id.

¶ 23      The circuit court dismissed the petition as frivolous because " 'Langford's statement is not

an affidavit since it is not a sworn statement and is not notarized,' " further noting that

" 'Langford does not even state that he would testify to these facts on behalf of petitioner.' " Id. ¶

15. The appellate court affirmed the dismissal "due to the lack of notarization" and found that

the Langford statement would not qualify as an affidavit or " 'other evidence' " necessary to

support a petition under section 122-2 of the Act. Id. ¶ 17 (quoting 725 ILCS 5/122-2 (West

2008)).

¶ 24      The Illinois Supreme Court, although agreeing that the Langford statement was "not an

affidavit" without a notarization (id. ¶ 31), held that this fact alone did not warrant summary

dismissal at the first stage of postconviction proceedings. The supreme court explained that "[a]t

the first stage, the court considers the petition's substantive virtue rather than its procedural



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compliance." (Internal quotation marks omitted.) Id. ¶ 24. Our supreme court went on to hold

that "[l]ack of notarization here does not prevent the court from reviewing the petition's

substantive virtue" and "does not limit the *** identification of the sources, character, and

availability of evidence alleged to support the petition." (Internal quotation marks omitted.) Id.

¶ 34. The court thus held that the "failure to notarize does not leave the petition with no arguable

basis either in law or in fact," and did not make the petition "frivolous or patently without merit."

(Internal quotation marks omitted.)      Id. The court concluded that "the circuit court may not

dismiss at the first stage solely for failure to notarize a statement styled as an evidentiary

affidavit," although "the State may challenge this nonjurisdictional procedural defect at the

second stage of proceedings." Id. ¶ 35.

¶ 25   The Allen court also indicated that even a statement without notarization may still

constitute "other evidence" supporting a petition pursuant to section 122-2 of the Act. (Internal

quotation marks omitted.) Id. ¶ 34. The court rejected the State's argument that such evidence

must be in admissible form, instead holding that "[i]t is enough for first-stage purposes that the

defendant has provided substantive evidentiary content showing his claims are capable of

corroboration and independent verification." Id. ¶ 37.

¶ 26   Separately, the supreme court in Allen also held that summary dismissal was improper

despite the fact that Langford's statement did not affirmatively state his willingness to testify on

the defendant's behalf. See id. ¶ 41. The supreme court suggested that the trial court could

"infer" his willingness to testify, explaining: "on the first stage of review, the court is to take the

allegations of the petition as true and construe them liberally. [Citation.] At this point, the court

might infer that Langford was willing to provide the statement but not testify, or it might infer

that Langford was willing to provide the statement and to testify. We believe the latter inference



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is consistent with the directive to construe the petition's allegations liberally."       (Emphasis

added.) Id.

¶ 27    The Allen court further held that although the content of Langford's statement conflicted

with certain trial testimony, it nonetheless met the "forgiving standards of the first stage" of

postconviction proceedings to avoid summary dismissal. Id. ¶ 43. Thus, our supreme court

reversed and remanded for second-stage postconviction proceedings. Id. ¶ 46.

¶ 28    Applying its holdings to the instant case, we conclude that Allen has undermined the

grounds for our May 2014 order affirming the summary dismissal of the defendant's

postconviction petition. Our prior order relied largely upon the lack of a notarization of Davis'

statement. However, the Allen court characterizes this as a "procedural" defect that does not

warrant summary dismissal and indicates that such a statement qualifies as "other evidence"

satisfying section 122-2 of the Act. Moreover, although Davis' statement failed to specify his

willingness to testify on the defendant's behalf, Allen indicates that a reviewing court should

"infer" that he would do so, under "the directive to construe the petition's allegations liberally" at

the first stage of review. Id. ¶ 41.

¶ 29    Furthermore, as the lack of notarization no longer bars the use of Davis' statement to

support the defendant's petition, we conclude that the defendant satisfied the standard for first-

stage review of a postconviction petition claiming ineffective assistance of counsel.            That

standard was articulated by our supreme court in a factually analogous case, People v. Tate, 2012

IL 112214. In Tate, the defendant claimed that his trial counsel provided ineffective assistance

by failing to call a number of exculpatory witnesses, and he supported his petition with affidavits

from those witnesses stating that he was not at the crime scene. Id. ¶¶ 4-5.




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¶ 30   Our appellate court had affirmed the trial court's summary dismissal of the Tate petition,

applying the standard derived from Strickland v. Washington, 466 U.S. 668 (1984), that the

defendant "must demonstrate ineffective assistance by showing that his counsel's performance

was deficient and that this deficient performance prejudiced the defense." (Emphases in

original.) Tate, 2012 IL 112214, ¶ 18. However, our supreme court disagreed, concluding that a

"different, more lenient formulation" of the Strickland standard applied. Id. ¶ 19. Our supreme

court explained: " 'At the first stage of postconviction proceedings under the Act, a petition

alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel's

performance fell below an objective standard of reasonableness and (ii) it is arguable that the

defendant was prejudiced.' " (Emphases in original.) Id. (quoting People v. Hodges, 234 Ill. 2d

1, 17 (2009)). Our supreme court further explained: "This 'arguable' Strickland test demonstrates

that first-stage postconviction petitions alleging ineffective assistance of counsel are judged by a

lower pleading standard than are such petitions at the second stage of the proceeding." Id. ¶ 20.

¶ 31   Notably, in finding that the Tate petition met this lower first-stage standard, our supreme

court rejected the State's argument that the defendant's trial counsel had a strategic reason for not

calling one of the exculpatory witnesses. Our supreme court held that: "The State's strategy

argument is inappropriate for the first stage, where the test is whether it is arguable that counsel's

performance fell below an objective standard of reasonableness and whether it is arguable that

the defendant was prejudiced." Id. ¶ 22. Instead, the Tate court found that such a trial strategy

argument was "more appropriate to the second stage *** where the petitioner's burden is to make

a substantial showing of a constitutional violation."       Id. Thus, the supreme court in Tate

remanded the case for further proceedings. Id. ¶ 25.




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¶ 32   Applying Tate's holding to this case, the trial court's original basis for its summary

dismissal of the defendant's postconviction petition was improper. That is, although the trial

court found that it was sound trial strategy by the defendant's counsel not to call Davis as a

witness, under Tate such a "strategy argument" regarding counsel's decision not to call a witness

"is inappropriate for the first stage" of review. Id. ¶¶ 21-22. Rather, the relevant test is simply

whether "it is arguable that counsel's performance fell below an objective standard of

reasonableness" and that the defendant was prejudiced. Id. ¶ 22. As in Tate, we find that the

defendant has presented an "arguable" claim that her trial counsel was ineffective in not calling

Davis as a witness, and thus her postconviction petition was sufficient to avoid first-stage

summary dismissal. On remand, the trial court should conduct second-stage postconviction

proceedings.

¶ 33   Accordingly, we vacate our May 14, 2014 order, reverse the trial court's summary

dismissal of the defendant's postconviction petition, and remand for further proceedings.

¶ 34   Reversed and remanded.




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