                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Wilborn, 2011 IL App (1st) 092802




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



District & No.             First District, Sixth Division
                           Docket No. 1-09-2802


Opinion filed              September 23, 2011
Modified upon denial
of rehearing               February 24, 2012
Held                       In a prosecution for first-degree murder, defendant’s pro se
(Note: This syllabus       postconviction petition alleging that his trial counsel was ineffective in
constitutes no part of     failing to present the exculpatory testimony of his codefendant and that
the opinion of the court   his appellate counsel was ineffective in failing to raise that issue on
but has been prepared      appeal was properly dismissed as frivolous and patently without merit,
by the Reporter of         the decision not to call codefendant was a product of sound trial strategy
Decisions for the          based on the determination that calling codefendant would not be in
convenience of the         defendant’s interest.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 04-CR-22104 (02);
Review                     the Hon. John J. Moran, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Michael J. Pelletier and Alan D. Goldberg, both of State Appellate
Appeal                       Defender’s Office, and David T. Harris, Assistant Public Defender, both
                             of Chicago, for appellant.

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


Panel                        PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
                             with opinion.
                             Justice Palmer1 concurred in the judgment and opinion.
                             Justice Garcia specially concurred, with opinion.



                                                OPINION

¶1          Following a jury trial, defendant Joseph Wilborn2 was convicted of first-degree murder.
        720 ILCS 5/9-1(a)(1) (West 2000). After hearing aggravation and mitigation, defendant was
        sentenced to 55 years in the Illinois Department of Corrections, 30 years for the first-degree
        murder and 25 years as a firearm enhancement. Defendant’s conviction was affirmed on
        direct appeal (People v. Wilbourn, No. 1-06-2088 (2008) (unpublished order under Supreme
        Court Rule 23)). Defendant then filed a petition for postconviction relief in which he claimed
        ineffective assistance of trial and appellate counsel. The trial court dismissed defendant’s
        postconviction petition at the first stage of the proceedings, finding that: (1) the issues
        presented in the petition are barred by the doctrine of res judicata; (2) defendant’s allegations
        were conclusory and the petition lacked supporting documentation; and (3) the petition is
        frivolous and patently without merit. Defendant now appeals, and we affirm. See People v.
        Jones, 399 Ill. App. 3d 341, 359 (2010) (we may affirm the decision of the trial court on any
        grounds substantiated by the record, regardless of the trial court’s reasoning).



                1
                  Justice Robert Cahill originally sat on the panel of this appeal and participated in its
        disposition. Justice Cahill passed away on December 4, 2011. Therefore, Justice Palmer will serve
        in his stead and has read the briefs, record and the decision, which is the subject of the petition for
        rehearing.
                2
                 Defendant’s direct appeal records use the spelling “Wilbourn” for his last name. However,
        his postconviction records, as well as his signature on his postconviction filings, use the spelling
        “Wilborn” for his last name. In this decision we will use the spelling of defendant’s last name found
        on his postconviction petition and records.

                                                     -2-
¶2                                   I. BACKGROUND
¶3      Defendant and codefendant, Cedrick Jenkins, were arrested and charged by indictment
     with the first-degree murder of Emmit Hill (victim). The trial court granted defendant’s
     motion for severance and defendant’s jury trial commenced on June 12, 2006.
¶4       During opening statements, defense counsel told the jury that “you’ll see and hear from
     Jenkins.” He stated that the victim had “problems” with defendant and Jenkins, and that
     Jenkins “will talk to you about [their] relationship with [the victim].” He also told the jury
     that the victim had approached defendant and Jenkins on the day of the shooting, accused
     Jenkins of “being out and looking for him with [a] gun,” and told Jenkins that “I’ll have this
     neighborhood flooded and you won’t get out.” Defense counsel further stated as follows:
        “[Jenkins] will tell you what happened inside that gangway [where the victim was found
        shot]. It won’t be the same story that you here from [another witness] but the facts of who
        pursued, who wouldn’t let this go, who having seen what he regards as suspicious,
        disregards it and it follows him through that gangway anyway ***.”
¶5       Following opening statements, the State called eight witnesses: (1) Frederick Sanders;
     (2) Clarence Morgan; (3) David Parker; (4) Chicago police detective Mike Qualls; (5) Stacey
     Daniels; (6) Chicago police officer Andre Bedford; (7) forensic investigator John Kaput; and
     (8) Cook County medical examiner Dr. Valerie Arangelovich.


¶6                            A. Frederick Sanders’s Testimony
¶7       Sanders testified that, at approximately 11:30 p.m. on July 28, 2004, he exited his
     apartment building located on the 6200 block of South Michigan Avenue and walked to his
     automobile where his friend, Randy Griffin, was waiting in the passenger seat. Sanders
     testified that Griffin told him that he had heard “a couple of gunshots” while he was waiting.
     Sanders then drove his vehicle westbound on 63rd Street to Wabash. Sanders testified that
     when he turned north, he observed a person he knew by the nickname of “Moochie,” whose
     real name is Samuel Richards, standing over a body lying in a gangway located near the
     northeast corner of 63rd Street and Wabash. Sanders testified that he then stopped his
     vehicle, exited it, and telephoned the police with his cellular telephone. While he waited for
     the police to arrive, he did not observe anyone in the area with a gun, nor did he observe
     Richards remove a handgun from the body. He did not observe defendant or Jenkins in the
     area.
¶8       Sanders also testified that he was not friends with defendant, the victim or Jenkins. He
     testified that he knew defendant because he observed him “being around the [apartment]
     building.” In addition, he testified that he “knew [the victim] from the neighborhood” and
     knew Jenkins because Jenkins previously resided at the apartment building.




                                              -3-
¶9                               B. Clarence Morgan’s Testimony
¶ 10       Morgan testified that on July 28, 2004, at 11 p.m., he was standing on the South
       Michigan Avenue side of Sanders’s apartment building, drinking liquor with the victim, who
       was a friend of his, and with “other people,” which included Richards and a man named
       David Parker. He testified that defendant, Jenkins, and a man known as “Chub” were
       standing “in front” of the apartment building. He testified that he had known defendant and
       Jenkins for approximately 10 years because, at one time, they both lived in the same
       apartment building as him.
¶ 11       Morgan testified that “Chub” handed a hooded sweatshirt to Jenkins and the victim then
       made a “smart comment” to “Chub.” Morgan testified that the victim said to “Chub,” “was
       he on bullshit,” which he understood to mean, he was “up to no good at the time.” Morgan
       testified that he did not hear the victim threaten defendant or Jenkins at any time on the night
       of the shooting. Morgan further testified that prior to the shooting he was unaware of any
       animosity between defendant, Jenkins, and the victim.
¶ 12       Morgan also testified that, after the victim made the comment to “Chub,” he observed
       defendant and Jenkins walk in a westerly direction across South Michigan Avenue and
       through a gangway toward Wabash. He testified that the victim followed them into the
       gangway, but then he lost sight of the victim. He testified that he did not observe a handgun
       on the victim. Morgan testified that, approximately one minute later, he heard five gunshots
       coming from the direction of the gangway. When the victim did not return, Morgan decided
       to walk to Wabash to determine if the victim had arrived at the other side of the gangway.
       He testified that he walked south to 63rd Street then west to Wabash to avoid walking
       through the gangway. When he arrived at the corner of 63rd Street and Wabash, he observed
       the victim lying on the ground in the gangway. He also observed several people, including
       Richards and Parker, standing near the victim’s body, but he did not observe defendant or
       Jenkins in the area.
¶ 13       On cross-examination, Morgan testified that defendant, Jenkins, and “Chub” were
       members of the “Insane Gangster Disciples” gang, while he was a member of the “Black
       Gangster Disciples,” a rival gang. He testified that his gang “controlled” Sanders’s apartment
       building, but after a series of arrests of Black Gangster Disciple members, defendant and
       Jenkins started “hanging around” the apartment building. He further testified that the victim
       had a confrontation with defendant, Jenkins, and “Chub” two weeks before the shooting
       because they were trying to take over the drug sales at the building.


¶ 14                               C. David Parker’s Testimony
¶ 15       Parker testified that he was a friend of the victim and that Jenkins had a “beef” with the
       victim because the victim had been discussing Jenkins and Jenkins’s “parent” in the presence
       of others. He testified that two days before the shooting, defendant asked Parker to tell the
       victim to stop talking about Jenkins.


                                                 -4-
¶ 16       Parker testified that at 11 p.m. on the evening of July 28, 2004, he was visiting with the
       victim, Richards, Morgan, and a man by the name of Keith Wright. He testified that they
       were drinking liquor and standing on the South Michigan Avenue side of Sanders’s
       apartment building. He testified that defendant, Jenkins and “Chub” walked passed them.
       Parker observed “Chub” remove his hooded sweatshirt and hand it to Jenkins. Parker
       testified that he thought it was unusual for a person to wear a hooded sweatshirt because the
       evening was “cool, but it wasn’t cool enough for a [hooded sweatshirt].” Parker denied that
       he heard the victim say anything to defendant, Jenkins or “Chub” at that time.
¶ 17       Parker testified that two people began arguing across the street from the apartment
       building, and he walked toward the couple to stop the argument. He testified that he then
       heard seven gunshots and observed the gangway “lighting up from sparks.” Parker testified
       that he noticed that the victim was no longer in the area and Morgan told him that “I think
       [the victim] just followed [defendant] and [Jenkins] to the gas station.” Parker testified that
       he told the group that they should run to 63rd and Wabash to find out if anyone had been
       shot. He testified that when they arrived at Wabash, he observed the victim on the ground
       in the gangway. Parker testified that he and Morgan then ran to the victim’s residence to
       inform his family of the shooting. He testified that he did not observe a gun on the victim that
       evening. Parker testified that Richards searched the victim’s pockets to ensure there were no
       drugs on the victim.


¶ 18                 D. Chicago Police Detective Mike Qualls’s Testimony
¶ 19       Detective Qualls testified that when he arrived at the scene at approximately 12:30 a.m.,
       he did not locate a weapon near the body. He testified that he spoke with Parker the
       following day, who told him that just before he heard the gunshots, he heard the victim ask
       Jenkins, “What you all bitches doing with those hoodies?” He testified that after he and other
       officers interviewed witnesses, an investigative alert was issued for defendant, Jenkins, and
       “Chub.” Detective Qualls testified that he and other detectives were initially unable to locate
       the three men.


¶ 20                              E. Stacey Daniels’s Testimony
¶ 21       Daniels testified that he had been a friend of defendant’s for more than four years. He
       testified that two weeks after the shooting, on August 12, 2004, he was with defendant at a
       mutual friend’s home when defendant told Daniels that he “got into some problems” and that
       he was in “some serious shit.” Daniels testified that defendant did not immediately explain
       this remark. Daniels, defendant and Jenkins then departed from their friend’s home and
       walked to Daniels’s apartment, which he shared with a man named Xavier Woolard. Daniels
       testified that when they arrived at his apartment, Woolard was in the apartment along with
       his girlfriend, named LaKiesha.
¶ 22       Daniels testified that he was standing on a rear porch of his apartment with defendant and


                                                 -5-
       Jenkins when defendant explained to him that he “got into it with some dude,” that there was
       a shooting, and that he “had to give it to [the] n***er.” According to Daniels, defendant
       explained that he was walking through a gangway and observed that the “dude was following
       him.” He told Daniels that he “didn’t know what dude had or something and he thought dude
       was fittin’ to do something to him” and that defendant said that he “turned around busting,”
       which Daniels understood to mean shooting. Daniels testified that defendant then told him
       he needed to obtain money to leave town and that he might try to “hit a lick or something like
       that,” which Daniels understood to mean “come up on some money” or to commit a robbery.
¶ 23       After his conversation with defendant, Daniels testified that he went to a party with
       Woolard, while defendant, Jenkins, and LaKeisha stayed at Daniels’s and Woolard’s
       apartment. Woolard was arrested at the party for an unrelated battery offense and Daniels
       then returned to his apartment.


¶ 24                 F. Chicago Police Officer Andre Bedford’s Testimony
¶ 25       Officer Bedford testified that he arrested Woolard at the party. Following the arrest,
       Woolard told him that there were two people, nicknamed “Little Joe and Ced,” who were at
       his apartment and were wanted on murder charges. Woolard then consented to a search of
       his apartment. Officer Bedford performed a police computer search of the nicknames and
       discovered that “Little Joe” was a nickname for defendant and that “Ced” was a nickname
       for Jenkins. Officer Bedford observed that there was an investigative alert for defendant and
       Jenkins in relation to the July 28 shooting.
¶ 26       Officer Bedford testified that, at 5 a.m. the following day, he and two other police
       officers conducted a search of Daniels’s and Woolard’s apartment, where they found four
       individuals, defendant, Jenkins, Daniels and LaKeisha. During the search, the officers found
       a 9-millimeter Glock brand handgun, loaded with two bullets, and an additional 28 bullets
       in Woolard’s bedroom. The officers also searched defendant, who had one Wolf brand Luger
       bullet and four “hollow point” Luger bullets in his pocket; and Jenkins, who had a 9-
       millimeter High Point handgun, loaded with seven bullets, on his person.


¶ 27                       G. Forensic Investigator Kaput’s Testimony
¶ 28       Forensic investigator Kaput testified that he arrived at the crime scene at approximately
       10 minutes after midnight on July 29, 2004. He testified that he conducted a walk-through
       of the crime scene, where he found five fired Wolf brand 9-millimeter Luger cartridge
       casings and a 9-millimeter fired bullet. Kaput placed the cartridge casings and fired bullet
       into individual envelopes and submitted the envelopes to the Illinois State Police crime lab.




                                                -6-
¶ 29                         H. Assistant Cook County Medical Examiner
                                 Dr. Valerie Arangelovich’s Testimony
¶ 30       Dr. Arangelovich testified that she performed an autopsy on the victim. She observed that
       the victim had seven bullet entrance wounds and five exit wounds. She recovered two bullets
       from the victim’s body and a third bullet “hanging loose in his clothes.” Dr. Arangelovich
       placed the bullets into individual envelopes and submitted the envelopes to the Illinois State
       Police crime lab. She concluded that the victim died from multiple gunshot wounds.


¶ 31                                          I. Stipulations
¶ 32        The parties stipulated that four of the five fired cartridge casings Kaput found at the
       crime scene were fired from the same handgun, but not by either the Glock handgun that was
       found in Woolard’s bedroom, or the High Point handgun, which was found on Jenkins,
       during the search of Woolard’s apartment. However, the fifth fired cartridge casing found
       at the crime scene was fired from the Glock handgun.
¶ 33       The parties further stipulated to the following: (1) the fired bullet found at the crime
       scene by Kaput was not fired by the High Point handgun, but the forensic test on the bullet
       was inconclusive as to whether the bullet was fired from the Glock handgun; (2) the three
       bullets recovered by Dr. Arangelovich were fired from the same handgun, but not from the
       Glock or High Point handgun; and (3) the fired bullet recovered by Kaput from the crime
       scene was not fired by the same handgun as the three bullets recovered by Dr. Arangelovich
       from the victim’s body and clothes.
¶ 34       After the State rested, defense counsel moved for a directed verdict, which was denied.
       During a recess before defense counsel presented the defense, the following colloquy took
       place:
              “THE COURT: [Defendant], your attorney informed me that he has your co-
          defendant, [Jenkins], present. And he is available. He has been interviewed. Based on
          that interview, your attorney has decided that he thinks it is to your best interest not to
          call this witness. He also explained to me [that] he discussed that with you. Is that
          correct?
              DEFENDANT: Yes, sir.
              THE COURT: Do you agree with that?
              DEFENDANT: Yes, sir.”
¶ 35       The defense did not call Jenkins as a witness, and defendant did not testify on his own
       behalf. Defense counsel called one witness, Sergeant Cherry3, who testified that he responded
       to the crime scene at midnight on July 28, 2004. He testified that when he arrived at the


              3
                  Sergeant Cherry’s first name does not appear in the record.

                                                    -7-
       scene two men flagged him down. He observed two other men kneeling next to the victim
       and that approximately 60 other people were in the area near the victim. He testified that he
       asked several people, including Richards, to stay to speak with detectives. He testified that
       when the detectives arrived, Richards had left the area.
¶ 36       As noted, the jury found defendant guilty of first-degree murder. The trial court sentenced
       defendant to 30 years in the Illinois Department of Corrections plus 25 years for personally
       discharging a firearm. Defendant appealed his conviction, which did not include a claim of
       ineffective assistance of counsel. Defendant’s conviction was affirmed on direct appeal.


¶ 37                      J. Defendant’s Pro Se Postconviction Petition
¶ 38       On June 16, 2009, defendant filed a pro se petition for postconviction relief, in which he
       argued, inter alia, that his trial counsel was ineffective for failing to present the exculpatory
       testimony of Jenkins, which would have fulfilled a promise made to the jury in defense
       counsel’s opening statements that Jenkins would “tell [them] what happened inside that
       gangway.” Defendant also claims that appellate counsel was ineffective for not raising the
       issue on direct appeal.
¶ 39       In support of his petition, defendant attached a signed affidavit from Jenkins. Above
       Jenkins’s signature is written: “Pursuant to *** 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.” The affidavit is not notarized. In his petition, defendant alleged that Jenkins’s
       affidavit is “not notarized [because the] Menard Correctional Center law library refused to
       do so.”
¶ 40       Jenkins stated in his affidavit that he was willing to testify at defendant’s trial and that
       he would have testified that the victim followed him and defendant into the gangway and
       then said to them, “G.K.D. yall some bitches” with his hand in his pocket. Jenkins stated that
       he told the victim to “go about his business,” and turned to “catch up” with defendant. He
       stated that the victim continued to follow them and that the victim was “talking crazy with
       his hand in his pocket.”
¶ 41       Jenkins stated that he turned around “a second time” and told the victim “to go about his
       business.” Jenkins stated that the victim then “acted like he was about to pull a gun out of
       his pocket.” Jenkins stated that he then “pulled out” a handgun and shot at the victim once.
       He stated that defendant did not know that he was armed and fled when he heard the shot.
       Jenkins stated that he shot the victim two more times and then his handgun jammed. He then
       “pulled out” a second handgun and fired four more shots at the victim. Jenkins stated that he
       was arrested with one of the handguns that he used in the shooting and that he told police he
       had discarded the second handgun. He also stated that he told an arresting police officer that
       he alone shot the victim.
¶ 42      A hearing was held on defendant’s petition. On September 10, 2009, the trial court
       dismissed defendant’s postconviction petition in a written order, finding that: (1) the issues


                                                 -8-
       raised in the petition were also raised on direct appeal and therefore barred by the doctrine
       of res judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked
       required supporting documents “such as affidavit or other sworn statements”; and (3)
       defendant’s petition was frivolous and patently without merit.
¶ 43       This appeal follows.


¶ 44                                       II. ANALYSIS
¶ 45        Although defendant’s postconviction petition raises 15 claims of ineffective assistance
       of trial and appellate counsel, we consider only those claims that defendant has raised in this
       appeal. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008).
¶ 46       On appeal, defendant claims that the trial court erred in dismissing his postconviction
       petition at the first stage because: (1) he raised the “non-frivolous constitutional claim[s]”
       that trial counsel was ineffective for “making an unfulfilled promise to the jury to present
       exonerating testimony of co-defendant Jenkins,” and that appellate counsel was ineffective
       for failing to raise this issue on direct appeal; and (2) the trial court “overlook[ed] Jenkins’s
       affidavit,” which supported defendant’s petition.


¶ 47                                   A. Standard of Review
¶ 48       A trial court’s dismissal of a postconviction petition at the first stage is reviewed de novo.
       People v. Hodges, 234 Ill. 2d 1, 9 (2009); People v. Torres, 228 Ill. 2d 382, 394 (2008);
       People v. Edwards, 197 Ill. 2d 239, 247 (2001); People v. Coleman, 183 Ill. 2d 366, 388-89
       (1998). “A de novo review entails performing the same analysis a trial court would perform”;
       in other words, we accept all well-pleaded facts in the complaint as true while disregarding
       legal or factual conclusions unsupported by allegations of fact. Khan v. BDO Seidman, LLP,
       408 Ill. App. 3d 564, 578 (2011).


¶ 49                              B. Post-Conviction Hearing Act
¶ 50        The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) provides that
       a defendant may challenge his or her conviction or sentence for violations of federal or state
       constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v.
       Whitfield, 217 Ill. 2d 177, 183 (2005)). In a postconviction proceeding, a petitioner is not
       entitled to an evidentiary hearing as a matter of right. People v. Simms, 192 Ill. 2d 348, 359
       (2000). To be entitled to postconviction relief, a defendant bears the burden of showing that
       he or she suffered a substantial deprivation of his or her federal or state constitutional rights
       in the proceedings. 725 ILCS 5/122-1(a) (West 2008); Pendleton, 223 Ill. 2d at 471 (citing
       Whitfield, 217 Ill. 2d at 183); People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Lacy, 407
       Ill. App. 3d 442, 455 (2010).


                                                  -9-
¶ 51     1. A Summary Dismissal Is Proper When Barred by Res Judicata or Forfeiture
¶ 52       A proceeding under the Act is a collateral proceeding, not an appeal from the underlying
       judgment. People v. Coleman, 206 Ill. 2d 261, 277 (2002) (citing People v. Williams, 186 Ill.
       2d 55, 62 (1999)); Evans, 186 Ill. 2d at 89. The purpose of the proceeding is to allow inquiry
       into constitutional issues relating to the conviction or sentence that were not, and could not
       have been, determined on direct appeal. Whitfield, 217 Ill. 2d at 183; Coleman, 206 Ill. 2d
       at 277. Thus, all issues decided on direct appeal are barred by the doctrine of res judicata,
       and all issues that could have been raised in the original proceeding, but were not, are
       procedurally forfeited. People v. Taylor, 237 Ill. 2d 356, 372 (2010).


¶ 53                    2. A Summary Dismissal Is Proper When a Petition
                                 Violates Section 122-2 of the Act
¶ 54        The petition cannot consist of nonfactual and nonspecific assertions that merely amount
       to conclusions that errors occurred at trial. People v. Simms, 192 Ill. 2d 348, 359 (2000)
       (citing People v. Kitchen, 189 Ill. 2d 424, 433 (1999)). Rather, a petition filed under the Act
       must “clearly set forth the respects in which petitioner’s constitutional rights were violated.”
       725 ILCS 5/122-2 (West 2008).
¶ 55       While a pro se postconviction petition is not expected to set forth a complete and detailed
       factual recitation, the petition “ ‘must set forth some facts which can be corroborated and are
       objective in nature or contain some explanation as to why those facts are absent.’ ” Hodges,
       234 Ill. 2d at 10 (quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)); 725 ILCS 5/122-
       2 (West 2008) (a petition must have attached “affidavits, records, or other evidence
       supporting its allegations or shall state why the same are not attached”). The purpose of the
       “affidavits, records, or other evidence” requirement in section 122-2 of the Act (725 ILCS
       5/122-2 (West 2008)) is to establish that a petition’s allegations are capable of “ ‘objective
       or independent corroboration.’ ” Delton, 227 Ill. 2d at 254 (quoting People v. Hall, 217 Ill.
       2d 324, 333 (2005), citing People v. Collins, 202 Ill. 2d 59, 67 (2002)). Thus, a trial court
       may summarily dismiss a petition if the defendant fails to attach the required “affidavits,
       records, or other evidence” or fails to explain their absence from his or her postconviction
       petition. Delton, 227 Ill. 2d at 255 (“failure to either attach the necessary ‘affidavits, records,
       or other evidence’ or explain their absence is ‘fatal’ to a post-conviction petition [citation]
       and by itself justifies the petition’s summary dismissal” (internal quotation marks omitted)
       (quoting Collins, 202 Ill. 2d at 66, citing People v. Coleman, 183 Ill. 2d 366, 380 (1998),
       quoting People v. Jennings, 411 Ill. 21, 26 (1952))).


¶ 56            3. Three Stage Process for Adjudicating a Postconviction Petition
¶ 57       In noncapital cases, the Act provides a three-stage process for adjudicating a petition for
       postconviction relief. 725 ILCS 5/122-1 et seq. (West 2008); Pendleton, 223 Ill. 2d at 471-
       72. At the first stage, the trial court examines the petition independently and without any

                                                 -10-
       further pleadings from the defendant or any motions or responsive pleadings from the State.
       People v. Brown, 236 Ill. 2d 175, 184 (2010) (citing People v. Gaultney, 174 Ill. 2d 410, 418
       (1996)). The allegations in the petition, taken as true and liberally construed, need to present
       the “ ‘gist of a constitutional claim.’ ” Delton, 227 Ill. 2d at 254 (quoting Gaultney, 174 Ill.
       2d at 418); People v. Porter, 122 Ill. 2d 64, 74 (1988) (in order to avoid dismissal, defendant
       need only present the “gist” of a constitutional claim that would provide relief under the Act).
       This “gist” standard is a low threshold which requires the defendant to present only a limited
       amount of detail, not the claim in its entirety or legal argument or citation to legal authority.
       Hodges, 234 Ill. 2d at 9 (“[b]ecause most petitions are drafted at this stage by defendants
       with little legal knowledge or training, this court views the threshold for survival as low”).
¶ 58        In considering the petition at the first stage, the trial court may examine “the trial record,
       the court file of the proceeding in which the defendant was convicted, any action taken by
       an appellate court in such a proceeding, any transcripts of such proceedings, and affidavits
       or records attached to the petition.” People v. Diehl, 335 Ill. App. 3d 693, 700 (2002) (citing
       725 ILCS 5/122-2.1(c) (West 1998)). The trial court may summarily dismiss the petition if
       the allegations in the petition are positively rebutted in the record. See Coleman, 183 Ill. 2d
       at 381-82 (“this court has consistently upheld the dismissal of a post-conviction petition
       when the allegations are contradicted by the record from the original trial proceedings”
       (citing People v. Gaines, 105 Ill. 2d 79, 91-92 (1984), and People v. Arbuckle, 42 Ill. 2d 177,
       182 (1969)); see, e.g., People v. Williams, 364 Ill. App. 3d 1017, 1025 (2006) (concluding
       that defendant failed to state the gist of a constitutional claim that he was unfit to plead guilty
       when the record “clearly show[ed] that defendant understood the nature and purpose of the
       proceedings,” informed the trial court that he understood the charges against him, did not
       exhibit “irrational” behavior in court, and actively participated in the proceedings and
       conferred with trial counsel).


¶ 59             4. A Summary Dismissal Is Proper When Petition Is Considered
                               “Frivolous or Patently Without Merit”
¶ 60       The trial court must dismiss the petition in a written order if the court finds that the
       petition is “frivolous or *** patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2008).
       Neither “frivolous” nor “patently without merit” is defined in the Act. However, the Illinois
       Supreme Court has held that a postconviction petition is considered frivolous or patently
       without merit only if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d
       at 16. A petition lacking an arguable basis in law or fact is one “based on an indisputably
       meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill. 2d at 16. A claim
       completely contradicted by the record is an example of an indisputably meritless legal theory.
       Hodges, 234 Ill. 2d at 16. Fanciful factual allegations include those that are fantastic or
       delusional. Hodges, 234 Ill. 2d at 17.
¶ 61       If the trial court does not dismiss the petition as frivolous or patently without merit, then
       the petition advances to the second stage. If the petition advances to the second stage, the


                                                  -11-
       trial court may appoint counsel for an indigent defendant and counsel will have an
       opportunity to amend the petition. 725 ILCS 5/122-4 (West 2008). The State can file a
       motion to dismiss or an answer to the petition and the trial court must then determine
       whether the petition and any accompanying documentation make a substantial showing of
       a constitutional violation. 725 ILCS 5/122-5 (West 2008); Edwards, 197 Ill. 2d at 246 (citing
       Coleman, 183 Ill. 2d at 381). If no such showing is made, the petition is dismissed. If,
       however, a substantial showing of a constitutional violation is made, the petition is advanced
       to the third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6
       (West 2008); Edwards, 197 Ill. 2d at 246.
¶ 62       In the case at bar, the trial court dismissed defendant’s postconviction petition at the first
       stage and provided in its written order three reasons for the dismissal: (1) the issues raised
       in the petition were also raised on direct appeal and therefore barred by the doctrine of res
       judicata; (2) defendant’s allegations were conclusory and defendant’s petition lacked
       required supporting documents such as affidavits or other sworn statements as required under
       section 122-2 of the Act; and (3) defendant’s petition was frivolous and patently without
       merit. However, the trial court did not specify which issues were dismissed for which reason.
       Thus, we consider each of the trial court’s reasons as it applies to defendant’s claims on
       appeal.


¶ 63               C. Whether Defendant’s Claims Are Barred by Res Judicata
¶ 64       First, defendant claims that the trial court erred in summarily dismissing his
       postconviction petition when it found that the issues raised in the petition were barred by res
       judicata.
¶ 65      In the context of a postconviction petition, res judicata bars consideration of claims that
       were previously raised and decided on direct appeal. People v. Blair, 215 Ill. 2d 427, 443
       (2005). Defendant’s claims of ineffective assistance of counsel were not raised on direct
       appeal and, thus, cannot be barred by res judicata. Accordingly, res judicata does not bar
       consideration of defendant’s claims of ineffective assistance of trial and appellate counsel.


¶ 66           D. Whether Defendant’s Petition “Lacked Supporting Documents”
¶ 67       Second, defendant claims that the trial court erred in finding that the petition “lack[ed]
       supporting documentation.” The pleading requirements of the Act are found in section 122-2
       (see Hodges, 234 Ill. 2d at 9), which requires that the petition “clearly set forth the respects
       in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2008).
       Section 122-2 also requires that “[t]he petition shall have attached thereto affidavits, records,
       or other evidence supporting its allegations or shall state why the same are not attached.” 725
       ILCS 5/122-2 (West 2008). As noted, defendant attached Jenkins’s affidavit, which was
       signed but not notarized.
¶ 68       The State argues that although defendant attached Jenkins’s affidavit to the petition, the

                                                 -12-
       affidavit is not valid because it is not notarized. Thus, the State concludes, the trial court was
       not required to consider Jenkins’s affidavit and the court properly dismissed defendant’s
       postconviction petition because it lacked supporting documentation. We disagree.
¶ 69       To be considered a valid affidavit, our supreme court has held that an affidavit must be
       notarized unless otherwise provided for by a specific supreme court rule or statutory
       authorization. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 496 (2002). In
       Roth, our supreme court explained that “ ‘[a]n affidavit is simply a declaration, on oath, in
       writing, sworn to *** before some person who has authority under the law to administer
       oaths.’ ” Roth, 202 Ill. 2d at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). Thus, the
       supreme court concluded, statements in writing that have not been sworn to before an
       authorized person cannot be considered as affidavits. Roth, 202 Ill. 2d at 494.
¶ 70        In determining the validity of Jenkins’s proposed affidavit, we find instructive a case
       from the Second District of the Appellate Court, People v. Niezgoda, 337 Ill. App. 3d 593
       (2003). In Niezgoda, the defendant filed a pro se postconviction petition alleging ineffective
       assistance of counsel and attached his own affidavit and section 122-2 supporting affidavits
       from three other potential witnesses. Niezgoda, 337 Ill. App. 3d at 595. None of the affidavits
       were notarized. Niezgoda, 337 Ill. App. 3d at 595. The Second District, following Roth,
       found that affidavits filed pursuant to the Act must be notarized to be valid. Niezgoda, 337
       Ill. App. 3d at 597. The Niezgoda court then found that “the affidavits the defendant filed had
       no legal effect” because the affidavits were not notarized or sworn before a person who had
       the authority to administer oaths, and, as a result, the trial court properly dismissed the
       petition. Niezgoda, 337 Ill. App. 3d at 597 (citing People v. Johnson, 183 Ill. 2d 176, 191
       (1998)).
¶ 71        Here, similar to the defendant’s petition in Niezgoda, Jenkins’s affidavit is not notarized
       and, thus, not a valid affidavit on its face. However, in Niezgoda, the defendant appealed
       from a second-stage dismissal of his petition. To support a claim of failure to present a
       witness, a defendant must tender a valid affidavit from the individual who would have
       testified. People v. Enis, 194 Ill. 2d 361, 380 (2000) (citing People v. Johnson, 183 Ill. 2d
       176, 192 (1998), and People v. Thompkins, 161 Ill. 2d 148, 163 (1994)). Without a valid
       affidavit, a reviewing court cannot determine whether the proposed witness could have
       provided information or testimony favorable to the defendant. Johnson, 183 Ill. 2d at 192
       (citing People v. Guest, 166 Ill. 2d 381, 402 (1995), and People v. Ashford, 121 Ill. 2d 55,
       77 (1988)). After this case was initially filed, the Second District decided People v. Carr, 407
       Ill. App. 3d 513 (2011). In Carr, the defendant appealed from the summary dismissal of his
       pro se postconviction petition at the first stage. Carr, 407 Ill. App. 3d at 515. Relying on
       Niezgoda, the Second District held that because the defendant’s section 122-1 affidavit was
       not notarized, it was not valid. Carr, 407 Ill. App. 3d at 515. The court also declined to
       distinguish affidavits filed pursuant to section 122-1 from the section 122-2 affidavit at issue
       in Niezgoda because Niezgoda held that the notarization requirement for affidavits applies
       to the entire Act. Carr, 407 Ill. App. 3d at 515. Accordingly, the court did not consider the
       differing purposes of the two affidavit requirements. The court found that because the
       defendant’s section 122-1 affidavit was not notarized, it was not valid and he was not entitled

                                                 -13-
       to relief. Carr, 407 Ill. App. 3d at 516.
¶ 72       Recently, in People v. Henderson, 2011 IL App (1st) 090923, Justice Lavin authored an
       opinion analyzing the case based on a defendant’s failure to obtain notarization of a verifying
       affidavit where defendant was imprisoned and there was no guarantee that a defendant would
       be afforded the services of a notary public. Henderson, 2011 IL App (1st) 090923, ¶ 36. The
       court in Henderson found that “the purposes of the Act and section 122-2.1 would be
       hindered by preventing petitions which are neither frivolous nor patently without merit from
       proceeding to the second stage due to the technicality at issue.” Henderson, 2011 IL App
       (1st), 090923, ¶ 35. The Henderson court further found that “[a]t the second stage, the State
       will have the opportunity to object to the lack of notarization” and that “appointed counsel
       can assist in arranging for the notarization of the verification affidavit.” Henderson, 2011 IL
       App (1st), 090923, ¶ 35. Henderson declined to follow Carr as we do.


¶ 73       E. Whether Defendant’s Petition Is Frivolous and Patently Without Merit
¶ 74       Third, defendant claims that the trial court erred when it summarily dismissed his petition
       as frivolous and patently without merit. Specifically, defendant argues that he presented a
       non-frivolous constitutional claim that his trial counsel was ineffective for failing to fulfill
       his promise to the jury to present Jenkins’s exculpatory testimony and that appellate counsel
       was ineffective for failing to raise the issue on appeal.
¶ 75       A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const.,
       amends. VI, XIV; Ill. Const. 1970, art. I, § 8. 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), which the Illinois Supreme Court adopted in People v. Albanese, 102 Ill.
       2d 54 (1984).
¶ 76       Under Strickland, a defendant must prove both that: (1) his attorney’s actions or inactions
       constituted error(s) so serious as to fall below an objective standard of reasonableness “under
       prevailing professional norms” (People v. Colon, 225 Ill. 2d 125, 135 (2007); People v.
       Evans, 209 Ill. 2d 194, 220 (2004)); and (2) defense counsel’s deficient performance
       prejudiced the defendant. People v. Hodges, 234 Ill. 2d at 17 (citing Strickland, 466 U.S. at
       687-88). “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.” Hodges, 234 Ill. 2d at 17. The failure to satisfy either the
       deficiency prong or the prejudice prong of the Strickland test precludes a finding of
       ineffective assistance of counsel. Strickland, 466 U.S. at 697; People v. Patterson, 192 Ill.
       2d 93, 107 (2000).
¶ 77       Ineffective assistance of appellate counsel is determined under the same standard as a
       claim of ineffective assistance of trial counsel. People v. Edwards, 195 Ill. 2d 142, 163
       (2001) (citing People v. West, 187 Ill. 2d 418, 435 (1999)). Appellate counsel is not required

                                                   -14-
       to raise every conceivable issue on appeal, and it is not incompetence for counsel to refrain
       from raising issues that counsel believes are without merit. Edwards, 195 Ill. 2d at 163-64
       (citing People v. Johnson, 154 Ill. 2d 227, 236 (1993)). Accordingly, unless the underlying
       issue has merit, there is no prejudice from appellate counsel’s failure to raise an issue on
       appeal. Edwards, 195 Ill. 2d at 164 (citing People v. Childress, 191 Ill. 2d 168, 175 (2000)).
¶ 78       Defendant claims that it is arguable that trial counsel’s performance fell below an
       objective standard of reasonableness because counsel promised the jury during his opening
       statement that Jenkins would provide exculpatory testimony on defendant’s behalf, and then
       failed to provide the promised testimony during trial.
¶ 79        A defendant is entitled to reasonable, not perfect, representation. People v. Fuller, 205
       Ill. 2d 308, 330 (2002) (citing People v. Palmer, 162 Ill. 2d 465, 476 (1994)); West, 187 Ill.
       2d at 432 (citing People v. Stewart, 104 Ill. 2d 463, 492 (1984)). Decisions concerning which
       witnesses to call at trial and what evidence to present on defendant’s behalf ultimately rest
       with trial counsel. People v. Munson, 206 Ill. 2d 104, 139-40 (2002); West, 187 Ill. 2d at 432
       (citing People v. Ramey, 152 Ill. 2d 41, 53-55 (1992)). It is well established that these types
       of decisions are considered matters of trial strategy and are generally immune from claims
       of ineffective assistance of counsel. People v. Smith, 195 Ill. 2d 179, 188 (2000); West, 187
       Ill. 2d at 432. “In recognition of the variety of factors that go into any determination of trial
       strategy, *** claims of ineffective assistance of counsel must be judged on a circumstance-
       specific basis, viewed not in hindsight, but from the time of counsel’s conduct, and with
       great deference accorded counsel’s decisions on review.” People v. Fuller, 205 Ill. 2d 308,
       330-31 (2002) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), and Strickland, 466
       U.S. at 689). Thus, “[m]istakes in trial strategy or tactics or in judgment do not of themselves
       render the representation incompetent.” (Internal quotation marks omitted.) People v.
       Hillenbrand, 121 Ill. 2d 537, 548 (1988).
¶ 80       A defense counsel’s failure to provide testimony promised during opening statements is
       not ineffective assistance of counsel per se. People v. Manning, 334 Ill. App. 3d 882, 892
       (2002). We agree with defendant that counsel’s assistance may be ineffective if he or she
       promises that a particular witness will testify during opening statements, but does not provide
       the promised testimony during trial. See generally People v. Briones, 352 Ill. App. 3d 913
       (2009). However, we have also recognized that counsel’s decision to abandon a trial strategy
       during trial may be reasonable under the circumstances and that the decision not to provide
       promised testimony may be warranted by unexpected events. People v. Ligon, 365 Ill. App.
       3d 109, 120 (2006). In either case, a defendant must overcome a strong presumption that the
       challenged action or inaction of defense counsel may have been the product of sound trial
       strategy. Evans, 186 Ill. 2d at 93; People v. Coleman, 183 Ill. 2d 366, 397 (1998); People v.
       Griffin, 178 Ill. 2d 65, 73-74 (1997); see also People v. Gacy, 125 Ill. 2d 117, 126 (1988)
       (“The burden of *** overcoming the presumption that an attorney’s decision is the product
       of ‘sound trial strategy’ rests upon the defendant ***.”).
¶ 81       A defendant may overcome the strong presumption that defense counsel’s choice of
       strategy was “sound if counsel’s decision appears so irrational and unreasonable that no


                                                 -15-
       reasonably effective defense attorney, facing similar circumstances, would pursue such a
       strategy.” (Emphasis in original.) People v. King, 316 Ill. App. 3d 901, 916 (2000) (citing
       People v. Faulkner, 292 Ill. App. 3d 391, 394 (1997)). “[Sound trial strategy] embraces the
       use of established rules of evidence and procedure to avoid, when possible, the admission
       of incriminating statements, harmful opinions, and prejudicial facts.” People v. Moore, 279
       Ill. App. 3d 152, 159 (1996).
¶ 82        Here, we cannot say that defense counsel’s decision not to call Jenkins as a witness was
       outside the realm of sound trial strategy. The record shows that defense counsel contemplated
       calling Jenkins as a witness. However, after interviewing him, defense counsel determined
       that Jenkins’s testimony would not be in defendant’s “best interest.” Defense counsel then
       informed defendant and the trial judge of his decision not to call Jenkins as a witness. The
       trial court discussed the matter with defendant and his counsel in open court and defendant
       informed the court that he agreed with his counsel’s decision. Based on the record, defense
       counsel’s decision to not call Jenkins as a witness appears to be the product of sound trial
       strategy, a strategy that the defendant agreed with. See People v. Flores, 128 Ill. 2d 66, 106
       (1989) (“defense counsel need not call a witness if he reasonably believes that under the
       circumstances the individual’s testimony is unreliable or would likely have been harmful to
       the defendant”).
¶ 83       Considering Jenkins’ affidavit in addition to the record, we still conclude that defendant
       did not overcome the strong presumption that defense counsel’s decision was the product of
       sound trial strategy at the time that he interviewed Jenkins.
¶ 84       The record also shows that two of the State’s witnesses, Morgan and Parker, testified that
       there was animosity between defendant and Jenkins and the victim, which supported the
       defense counsel’s self-defense theory. Specifically, Morgan testified that the victim was in
       a gang rival to defendant’s and Jenkins’s gang. He further testified that the victim had a
       confrontation with defendant and Jenkins two weeks prior to the shooting. Parker testified
       that the victim had a “beef” with Jenkins. Both Morgan and Parker testified that the victim
       pursued defendant and Jenkins as they were walking into the gangway. Jenkins’s purported
       testimony now, as stated in his affidavit, would have not supported defendant’s theory that
       he acted in self-defense. According to Jenkins’s affidavit, Jenkins would have testified that
       defendant had nothing to do with the shooting and that he alone shot the victim. This was not
       the theory that was presented by the defense at trial.
¶ 85       Moreover, Jenkins was a codefendant and his testimony may have been harmful to
       defendant. The chance of such harm is even more likely considering that defendant
       successfully moved for severed trials on the grounds that Jenkins had made statements
       which, if introduced at trial, would be prejudicial to defendant. In People v. Ashford, 121 Ill.
       2d 55, 75 (1988), our supreme court rejected the defendant’s postconviction petition claim
       that his counsel was ineffective for not subpoenaing his codefendant to testify. The supreme
       court found that subpoenaing his codefendant
          “would surely have been an incomprehensible, if not utterly egregious, trial tactic ***.
          Having successfully moved for severed trials on the ground that [his codefendant] had

                                                -16-
          made statements which, if introduced at trial, would be prejudicial to him, we cannot
          understand how the defendant can now fault counsel for failing to subpoena [his
          codefendant].” Ashford, 121 Ill. 2d at 75.
¶ 86       In his motion for severance, defendant alleged that Jenkins “has made written and/or oral
       statements implicating [him].” He further alleged that he believed that Jenkins’s defense “is
       in conflict and antagonistic toward [him] and he cannot obtain a fair and impartial trial
       because of the prejudice created by the inconsistent, conflicting, and antagonistic defenses.”
¶ 87       Accordingly, we cannot say that defense counsel’s decision not to call Jenkins was so
       irrational or unreasonable that his performance fell below an objective standard of
       reasonableness when, before trial, defendant sought to sever Jenkins’s trial from his own, and
       when, during trial, defense counsel determined after interviewing Jenkins that his testimony
       would not be in defendant’s best interest.
¶ 88      We find the case at bar distinguishable from the cases defendant cites where defense
       counsel’s performance was deficient for failing to fulfill his promise to the jury to present
       exculpatory testimony from witnesses. Defendant cites People v. Bryant, 391 Ill. App. 3d 228
       (2009), and People v. Briones, 352 Ill. App. 3d 913 (2004).
¶ 89       In Bryant, the Fifth District found that defense counsel was ineffective in the defendants’
       joint murder case for failing to call any witnesses, who were available to testify at trial, in
       support of the defense theory proffered in opening statements to the jury that the murder was
       committed by others. Bryant, 391 Ill. App. 3d at 229. On review, the Bryant court found that
       defense counsel’s performance was deficient because trial counsel attempted to present his
       defense entirely through cross-examination of the State’s witnesses, but his questions were
       repeatedly and successfully challenged by “beyond the scope” objections from the State.
       Bryant, 391 Ill. App. 3d at 239. The court found that, although counsel’s decision not to call
       any witnesses was a matter of trial strategy, said strategy was not reasonable, and the
       resulting prejudice was not harmless, as it “appears that counsel concluded that rather than
       support the defense theory with evidence that the jury might reject, it was better to not
       support the theory at all.” Bryant, 391 Ill. App. 3d at 241.
¶ 90       In the case at bar, there is no indication in the record, and defendant does not argue, that
       defense counsel entirely failed to support his theory of self-defense similar to the defense
       counsel in Bryant. Rather, our examination of the record in this case shows that defense
       counsel’s performance was not deficient because counsel exhibited an understanding of the
       fundamental rules of criminal procedure, subjected the State’s witnesses to meaningful
       adversarial testing, and presented a trial strategy without flawed legal arguments. People v.
       Schlager, 247 Ill. App. 3d 921, 932 (1993).
¶ 91       In Briones, the Fifth District of the Appellate Court found that defense counsel’s
       performance was deficient after counsel reneged on a promise to the jury during opening
       statements that the defendant would testify. Briones, 352 Ill. App. 3d at 919. During trial the
       defendant informed the trial court that he decided, after speaking to his trial counsel, that he
       would not testify on his own behalf. Briones, 352 Ill. App. 3d at 916. On appeal, defendant


                                                -17-
       claimed that his defense counsel’s decision for him not to testify was unsound trial strategy
       and the appellate court agreed. Briones, 352 Ill. App. 3d at 918.
¶ 92       In deciding whether defense counsel’s decision constituted deficient performance, the
       court recognized that it was trial counsel’s “responsibility to evidence in the record that [her
       performance] was not deficient, i.e., that the determination [that defendant would not testify]
       was a result of the defendant’s fickleness or of counsel’s sound trial strategy due to
       unexpected events.” Briones, 352 Ill. App. 3d at 919. In its review, the court found that
       defense counsel “failed to show in the record that the defendant inexplicably changed his
       decision to testify or that, because of unexpected events, sound trial strategy required her to
       break her promise that the defendant would testify.” Briones, 352 Ill. App. 3d at 919. As a
       result, the appellate court declined to presume that defense counsel’s decision not to present
       the defendant’s testimony, after promising to do so in opening statements, was the result of
       sound trial strategy and thus concluded that counsel’s performance was deficient. Briones,
       352 Ill. App. 3d at 919. See also People v. Tate, 305 Ill. App. 3d 607, 612 (1999) (unable to
       determine “as a matter of law” whether defense counsel’s decision to not call certain
       witnesses was a “professionally reasonable tactical decision” because the record did not
       reflect counsel’s reasoning for the decision).
¶ 93       Here, unlike Briones and Tate, the record shows that defense counsel had a reason for not
       calling Jenkins to testify–he reasonably believed that, after interviewing Jenkins, the
       testimony Jenkins would provide would not be in defendant’s best interest. Defense counsel
       interviewed Jenkins before presenting the testimony and, as a result of that interview,
       determined that his testimony would not be in the best interest of the defendant. Defense
       counsel then informed the trial court and defendant of his decision, and defendant informed
       the court that he agreed with his counsel’s decision.
¶ 94       Defendant also argues that defense counsel’s “failure to present Jenkins’s exculpatory
       testimony to support defendant’s otherwise uncorroborated defense amounts to ineffective
       representation.” Defendant cites People v. King, 316 Ill. App. 3d 901 (2000), but we find that
       case also distinguishable to the case at bar.
¶ 95        In King, the defendant was convicted of aggravated criminal sexual assault and
       aggravated kidnaping for the abduction and rape of a 17-year-old passenger on the
       defendant’s school bus route. King, 316 Ill. App. 3d at 903-04. Defendant maintained that
       he did not rape the passenger and was never alone with her on the bus. Defendant provided
       his defense counsel with the name of an alibi witness who worked as a bus attendant on
       defendant’s bus and who was working on the bus on the day of the alleged rape. King, 316
       Ill. App. 3d at 904. The defendant alleged that his trial counsel never interviewed the bus
       attendant in preparation for trial and never called her as a witness, although she was present
       at court and available to testify on the trial date. King, 316 Ill. App. 3d at 904. The bus
       attendant’s affidavit stated that she was on the bus the entire time the students were riding
       home and that the 17-year-old passenger was never alone on the bus with the defendant.
       King, 316 Ill. App. 3d at 904.
¶ 96      This court held that defense counsel’s performance was deficient because defense

                                                -18-
        counsel was aware of the alibi witness but failed to interview the witness at any time before
        or during trial and failed to provide an explanation for failing to call or even interview the
        exculpatory witness. King, 316 Ill. App. 3d at 916. We could not conceive of any sound trial
        strategy for failing to do so. King, 316 Ill. App. 3d at 916.
¶ 97        Here, on the other hand, defendant does not claim in his postconviction petition that
        defense counsel failed to interview Jenkins before trial commenced, nor did Jenkins state in
        his affidavit that defense counsel failed to interview him prior to trial. There is no dispute
        that defense counsel did interview Jenkins before presenting his defense. As a result of that
        interview, defense counsel presented defendant and the trial judge with a reason for deciding
        not to call Jenkins as a witness–namely, that after interviewing the witness during a recess,
        he determined that calling Jenkins was not in defendant’s best interest.
¶ 98        Defendant further argues that defense counsel’s performance was deficient for failing to
        interview Jenkins, a known witness, before opening statements. However, we do not find any
        factual support for this argument. Defendant does not allege in his postconviction petition
        that his defense counsel did not interview Jenkins before opening statements. Jenkins, in his
        affidavit, also did not allege that he was not interviewed before opening statements. We also
        do not find any indication in the record that Jenkins was not interviewed before opening
        statements. Normally witnesses are interviewed well in advance of trial. It is also possible
        for a witness to change his testimony from the time he or she was first interviewed to the
        time he or she is called as a witness. However, a codefendant in a criminal trial may not
        agree to an interview until his trial has been concluded. We do not know, nor does the
        petition state, when Jenkins was first interviewed or what attempts were made to interview
        Jenkins prior to trial.
¶ 99        The record shows that defendant’s decision not to call Jenkins as a witness, even after
        promising to call him as a witness during opening statements, appears to be the product of
        sound trial strategy. Considering Jenkins’s affidavit in addition to the record, we cannot say
        that defendant overcame the presumption that his defense counsel’s decision not to call
        Jenkins was the product of reasonable trial strategy. Since we are unable to conclude that
        defense counsel’s performance arguably fell below objective standards, defendant’s claim
        of ineffective assistance of trial counsel and appellate counsel must fail. Patterson, 192 Ill.
        2d at 107. Accordingly, we cannot say that the trial court’s summary dismissal of defendant’s
        postconviction petition as frivolous and patently without merit was not proper.


¶ 100                                    III. CONCLUSION
¶ 101       We affirm the trial court’s summary dismissal of defendant’s pro se postconviction
        petition as frivolous and patently without merit.


¶ 102      Affirmed.



                                                 -19-
¶ 103       JUSTICE GARCIA, specially concurring:
¶ 104       I do not subscribe to the majority’s rejection of People v. Carr, 407 Ill. App. 3d 513
        (2011), which held that an unsigned affidavit is not valid, for being at odds with this court’s
        decision in People v Henderson, 2011 IL App (1st) 090923. Supra ¶ 72. Specifically, I
        disagree with the implicit suggestion by the majority that because a first-stage postconviction
        petition should not necessarily be dismissed for lack of supporting documentation based on
        an unsworn “affidavit” from a postconviction defendant under Henderson, the same result
        should obtain when the unsworn “affidavit” purports to be from a codefendant on behalf of
        a postconviction defendant. I agree with the observation in Henderson, “We need not address
        the result in Wilborn, as that case did not present an issue identical to the one before us.”
        Henderson, 2011 IL App (1st) 090923, ¶ 36.
¶ 105       In this case, the defendant offers the excuse that Jenkins’s efforts to notarize his
        statement were rebuffed by the Illinois Department of Corrections. It is fair to say that the
        defendant’s assertion cannot be based on his own knowledge. There may be another equally
        plausible reason for Jenkins’s statement not being notarized. In any event, I am not persuaded
        that an unsigned “affidavit” from a postconviction petitioner and an unsigned “affidavit”
        from a purported witness should be treated alike.
¶ 106       However, I agree with the majority’s conclusion that upon de novo review the
        postconviction petition, with its supporting documentation, meets the legal standard of
        frivolous and patently without merit to warrant dismissal at the first stage, which after all is
        the true holding of this case and is the same result we reached as to the postconviction
        petition we reviewed in Henderson.




                                                 -20-
