                                     2013 IL App (1st) 112303


                                                                             THIRD DIVISION
                                                                             September 25, 2013




No. 1-11-2303


THE PEOPLE OF THE STATE OF ILLINOIS,                          )       Appeal from the
                                                              )       Circuit Court of
                               Plaintiff-Appellee,            )       Cook County.
                                                              )
v.                                                            )       No. 04 CR 11843
                                                              )
RECO WILSON,                                                  )       Honorable
                                                              )       Clayton J. Crane,
                               Defendant-Appellant.           )       Judge Presiding.


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


                                            OPINION

¶1     Defendant Reco Wilson appeals the summary dismissal of his pro se postconviction

petition. On appeal, Wilson contends that his petition, supported by a signed and notarized

affidavit of an alleged alibi witness, presents an arguable claim that trial counsel provided

ineffective assistance where counsel failed to call that witness. Accordingly, Wilson contends

that his petition should advance to the second-stage proceedings with appointment of counsel.

For the reasons that follow, we reverse and remand for further postconviction proceedings.

¶2                                    BACKGROUND
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¶3     In simultaneous but severed bench trials in 2008, Wilson and codefendant Marcel Milton

were convicted of first degree murder in the shooting death of Deon Gardner. The State

presented evidence that Milton fatally shot Gardner on March 22, 2004, during the course of an

aggravated vehicular hijacking. Wilson was convicted on an accountability theory for calling

Milton and informing him of the vehicle's location, knowing that Milton was armed with a gun.

¶4     On March 17 or 18, 2004, Wilson approached Sergio Wray on the street and asked if he

could move a car for him. Wray agreed and Wilson then drove him to the area near 78th Street

and South Shore Drive and handed him the keys to a silver Jeep Grand Cherokee that Wilson and

Milton had stolen earlier from an Alamo car rental facility. Wilson told Wray to follow him in

the Jeep to 77th Street and Yates Boulevard, but after losing sight of Wilson's vehicle, Wray

decided to keep the Jeep.

¶5     On the evening of March 22, 2004, Wray was watching movies with Lamar Murphy and

Deon Gardner at Murphy's apartment at 6926 South Michigan Avenue. Around 9 p.m., Wray

asked Murphy to drive him and Gardner in the Jeep to Gardner's house to get more movies. As

they pulled away from the curb, a white car traveling the wrong way on Michigan Avenue

approached the Jeep and stopped. Milton exited the passenger's seat of the white car, pulled out

a gun and ordered the men out of the Jeep. Milton fired two shots at Murphy and Wray as they

exited through the driver's door and ran. Milton then got into the driver's seat and ordered

Gardner, who was in the backseat, to exit the Jeep. As Gardner exited the vehicle, Milton shot

him once in the back and then twice after he had fallen to the ground.




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¶6      Evidence introduced at trial, including an inculpatory videotaped statement by Wilson,1

showed that earlier that day Wilson saw the Jeep near 69th and Cottage Grove. Wilson contacted

Milton on his cell phone and told Milton he was following the Jeep and that Milton should come

with an extra set of keys to retrieve the vehicle. Wilson then called his cousin to give Milton a

ride. Wilson followed the Jeep to 69th and Michigan where he observed the occupants exit the

vehicle and enter a building. In the videotaped statement, Wilson acknowledged that he knew

Milton carried a gun in such situations and admitted that he thought Milton would bring a gun to

retrieve the Jeep. He also stated that when he later called Milton on his cell phone to tell him to

hurry, Milton stated that he had his "blow on [him]." Wilson stated that a "blow" was a gun.

According to Wilson's statement, he observed Milton's arrival in the Jeep and his initial two shots

at Murphy and Wray. As Wilson drove away, he looked in his rearview mirror and observed

Milton shoot Gardner once as he exited the Jeep, and twice as he lay on the ground.

¶7      Wilson testified at trial and, contrary to his videotaped statement, claimed that he did not

observe Milton shoot Gardner. Wilson testified that he was with his girlfriend, Tiffany Taylor,

and her children at a McDonald's when he saw the Jeep drive by. He stated that Taylor was with

him in the car when he called Milton and drove to the area of 69th and Michigan, and that they

left before Milton arrived. Over defense counsel's objections, Wilson admitted that he did not

know where Taylor was during trial.


        1
            Wilson's motion to suppress his statement on the ground that it was coerced was denied

after a pretrial evidentiary hearing.



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¶8     On appeal, appellate counsel filed a motion for leave to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), arguing that there were no issues of merit on appeal. People v.

Wilson, No. 1-08-2836 (2010) (unpublished order under Supreme Court Rule 23). In his pro se

response, Wilson argued, inter alia, that trial counsel was ineffective for failing to call Taylor to

testify despite his repeated requests for counsel to do so. Id. at 11. In affirming Wilson's

conviction on appeal, this court rejected defendant's arguments regarding Taylor, concluding that

defense counsel "made a conscious decision" not to call Taylor as a witness, which was a matter

of trial strategy, generally immune from an ineffective assistance claim. Id. at 11-12.

¶9     Defendant subsequently filed a pro se petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Wilson's petition asserted that he

was denied effective assistance of trial counsel because counsel failed to (1) assure that police

had the proper paperwork to remove him from the county jail for questioning, (2) investigate the

number of stolen cars and trucks in Wilson's neighborhood to negate law enforcement's stated

reason for questioning Wilson, (3) interview or call Taylor as an alibi witness, and (4) move to

sever Wilson's trial from Milton's. Wilson further claimed that he was convicted of an offense

not charged in the indictment and was denied effective assistance of appellate counsel in his

direct appeal.

¶ 10   Attached to Wilson's petition was a signed and notarized affidavit from Taylor. In the

affidavit, Taylor attested that on March 22, 2004, she was with defendant from 4 p.m. until 11

p.m. At one point, Taylor, Wilson and their children went to a McDonald's restaurant at 79th and




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Phillips where Wilson observed the Jeep drive by and told her it was Milton's. As Taylor and

Wilson followed the Jeep, Wilson contacted Milton on his cell phone and put it on speaker.

Taylor heard Wilson tell Milton to come to 69th and Michigan and bring the extra set of keys for

the Jeep. According to Taylor, she and Wilson left the area before Milton arrived.

¶ 11   The circuit court dismissed the petition, determining that all of the issues raised in

Wilson's petition were barred by res judicata, having been raised and settled on direct appeal.

The court determined that Wilson's claims had no arguable basis in law and that accordingly

Wilson was not entitled to proceed to the second stage of the postconviction relief process with

appointed counsel. Wilson timely filed this appeal.

¶ 12                                   ANALYSIS

¶ 13   On appeal, Wilson contends that Taylor's affidavit presents an arguable claim that his trial

attorney was ineffective in failing to present Taylor as a witness because Taylor's version of

events would have corroborated his trial testimony. The State responds that the circuit court

correctly dismissed Wilson's petition based on res judicata because this court previously rejected

on direct appeal the same argument Wilson now raises.

¶ 14   The Act provides a remedy for defendants who have suffered a substantial denial of their

federal or state constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). At

the first stage of postconviction review, the circuit court independently reviews the petition to

determine whether it is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West

2010). A petition may be dismissed under this standard only if it has no arguable basis either in




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law or in fact. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). Summary dismissal of a

postconviction petition at the first stage is reviewed de novo. People v. Brown, 236 Ill. 2d 175,

184 (2010).

¶ 15   If the petition survives first stage review, it proceeds to the second stage, where counsel

may be appointed to aid an indigent defendant, and the State will be allowed to file responsive

pleadings. 725 ILCS 5/122-4, 122-5 (West 2010); Hodges, 234 Ill. 2d at 10-11. To advance

beyond the second stage, the petition and any accompanying documentation must make a

"substantial showing" of a constitutional violation. People v. Edwards, 197 Ill. 2d 239, 246

(2001). Upon such a finding, the circuit court conducts an evidentiary hearing on the defendant's

claim. 725 ILCS 122-6 (West 2010).

¶ 16   A postconviction petition may be dismissed at the first stage where the defendant's claim

is barred by res judicata. People v. Blair, 215 Ill. 2d 427, 450 (2005). Res judicata precludes a

claim if it has been previously raised and decided on direct appeal. Id. at 443-44. It is axiomatic

that any direct appeal is confined to the contents in the trial record. See, e.g., People v.

Newbolds, 364 Ill. App. 3d 672 (2006) (noting that if supporting facts are not part of trial record,

they may not be considered by the reviewing court on direct appeal). Accordingly, an exception

to barring a claim based on res judicata in a first-stage postconviction proceeding applies "where

[the] facts relating to the claim do not appear on the face of the original appellate record." Blair,

215 Ill. 2d at 450-51; People v. Harris, 206 Ill. 2d 1, 13 (2002); People v. Mahaffey, 194 Ill. 2d

154, 171 (2000).




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¶ 17    The record on direct appeal establishes that counsel considered presenting Taylor as a

witness but chose not to do so. The details of Taylor's potential testimony as set out in the

affidavit are not part of that record, and it also is not clear from the record that counsel knew the

substance of Taylor's account. Therefore, the facts relating to Wilson's claim are outside the

direct appeal record because the facts derive from the contents of Taylor's affidavit attached to

Wilson's postconviction petition. For that reason, we find res judicata does not bar Wilson's

instant postconviction claim.

¶ 18    The State contends that Taylor's affidavit "only provides details as to what her testimony

would have allegedly included." Indeed, that is precisely why Taylor's attestations meet the

standard for relaxation of the res judicata doctrine, which allows review of a previously raised

point "where facts relating to the claim do not appear on the face of the original appellate

record." (Emphasis added.) (Internal quotation marks omitted.) People v. Pitsonbarger, 205 Ill.

2d 444, 458 (2002). Although Wilson argued on direct appeal that counsel should have

presented Taylor as a witness, and the claim therefore was part of his appeal, the record before

the court at that time did not contain the facts of Taylor's potential testimony as stated in her

affidavit.

¶ 19    We find further support in People v. Tate, 2012 IL 112214, ¶ 22, in which our supreme

court held that at a first-stage review of a post-conviction petition, when considering a claim of

ineffectiveness of trial counsel for failure to call certain witnesses, the court should not consider




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trial strategy. Here, as in Tate, Wilson's petition should advance to the second stage of review

under the Act.

¶ 20    To succeed on a claim of ineffective assistance, a defendant must show that his counsel's

performance fell below an objective standard of reasonableness and that such performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984). In the context of

a first-stage postconviction claim, a defendant need only show that he can arguably meet those

two standards, i.e., it is arguable that his counsel was deficient and it is arguable that the

outcome of his case would have been different absent the deficient representation. Hodges, 234

Ill. 2d at 17.

¶ 21    To establish counsel's deficient performance, a defendant must overcome a strong

presumption that the challenged action or inaction was a matter of sound trial strategy, and

whether to call a particular witness to testify on a defendant's behalf falls under that category of

virtually unchallengeable decisions, as this court noted in its order on direct appeal. Wilson, slip

op. at 11-12. According to Wilson's statement to investigators, he told Milton where the Jeep

was located and that he knew Milton was bringing a weapon. Wilson also told investigators that

he observed the shooting through his rearview mirror as he drove away. However, at trial,

Wilson disavowed that confession, saying he was physically coerced into making that statement.

¶ 22    Applying the Hodges standard, it is at least arguable that defendant's trial counsel was

ineffective in failing to present Taylor as a witness, given the potential testimony set out in her

affidavit. Taylor attested she was in the car with Wilson and heard Wilson and Milton converse




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via speaker phone. She attested that Wilson told Milton the vehicle's location and heard him tell

Milton to bring the second set of keys for the Jeep. Taylor further attested that they left the area

before Milton arrived. Therefore, Taylor's testimony could have corroborated defendant's trial

testimony that he did not facilitate the crime and only told Milton where to retrieve the vehicle.

¶ 23   In conclusion, although the circuit court correctly determined that the majority of the

issues raised in the petition were previously raised and decided, res judicata does not bar

Wilson's postconviction claim because Wilson's petition presents an arguable claim that his

counsel was ineffective in failing to present Taylor's testimony regarding Wilson's actions prior

to the shooting.

¶ 24   Accordingly, the circuit court's summary dismissal of the petition is reversed, and the

petition is remanded for further proceedings under the Act.

¶ 25   Reversed and remanded.




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