                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Luciano, 2013 IL App (2d) 110792




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MICHAEL A. LUCIANO, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0792


Filed                      March 14, 2013


Held                       The mandatory natural-life-without-parole sentence imposed on
(Note: This syllabus       defendant, who was a juvenile when the offenses were committed, for
constitutes no part of     2007 murder charges was vacated as invalid pursuant to the retroactive
the opinion of the court   application of Miller, and the dismissal at the first-stage review of his
but has been prepared      postconviction petition alleging that his counsel were ineffective in
by the Reporter of         handling the contention that the 2007 murder charges were subject to
Decisions for the          compulsory joinder with other charges brought in 1991 against defendant
convenience of the         based on the same incident was reversed, since a factual issue existed as
reader.)
                           to whether the State had sufficient knowledge to prosecute defendant for
                           the murder in 1991.


Decision Under             Appeal from the Circuit Court of Kane County, No. 07-CF-1753; the
Review                     Hon. M. Karen Simpson, Judge, presiding.



Judgment                   Judgment reversed and sentence vacated; cause remanded with directions.
Counsel on                 Alan D. Goldberg and Jonathan Yeasting, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer, Jay Paul Hoffman, and Mary Beth Burns, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Schostok concurred in the judgment and opinion.


                                             OPINION

¶1          Defendant, Michael A. Luciano, appeals the judgment of the circuit court of Kane
        County, summarily dismissing his postconviction petition. Defendant questions the propriety
        of his mandatory natural-life-without-parole sentence in light of recent Supreme Court
        authority and urges that his counsel was ineffective for failing to move to dismiss his 2007
        murder charges because they were based on the same acts as charges to which, in 1991, he
        pleaded guilty. We reverse, vacate defendant’s sentence, and remand the cause with
        directions.

¶2                                       I. BACKGROUND
¶3          In People v. Luciano, No. 2-09-0066 (2010) (unpublished order under Supreme Court
        Rule 23) (Luciano I), we set forth in detail the factual background of this case, and we do not
        need to repeat it. Instead, we summarize the salient facts for purposes of the issues raised in
        this appeal.

¶4                                          A. The Offense
¶5          On Halloween night, 1990, Albert “Psycho” Gonzalez, then-president of the Insane
        Deuces, a street gang in Aurora, was shot to death at his home on Grove Street in Aurora.
        Suspicion for the shooting fell on the Latin Kings, another gang in Aurora, and specifically
        on defendant; his father, Angel Luciano, who was the leader (Inca) of the Latin Kings in
        Aurora; and Robert “Droopy” Rangel. In 1990 and 1991, defendant was charged with
        solicitation to commit aggravated discharge of a firearm and illegal possession of weapons,
        some of which were used in the Gonzalez shooting. Rangel went to trial for the murder while
        the charges against defendant pended. Rangel was acquitted of the murder. After Rangel’s
        acquittal, the State entered into a plea agreement with defendant in which defendant would
        plead guilty to possessing certain firearms, including those used in the Gonzalez shooting,
        in exchange for the State nol-prossing the charge of solicitation to commit aggravated
        discharge.


                                                  -2-
¶6          In about 2005, the case was revived when members of the Aurora Latin Kings were being
       arrested and charged with violating federal drug laws. To avoid heavier sentences, some gang
       members agreed to cooperate with the authorities, including the Kane County State’s
       Attorney. In 2007, both defendant and Angel Luciano were charged with the murder of
       Gonzalez on the theory that they ordered fellow Latin Kings to carry out the shooting. Angel
       Luciano was acquitted of the Gonzalez murder charges while defendant was convicted of
       intentional murder and “strong probability” murder as well as felony murder predicated on
       mob action.
¶7          The conviction of the Gonzalez murder was defendant’s second conviction of murder.
       Some months before the trial in this matter, defendant was convicted of the 1989 murder of
       Willie Arce. When this case advanced to sentencing, defendant, having been convicted of
       two murders, was deemed subject to a mandatory sentence of natural life without parole,
       notwithstanding the fact that he was 17 years old at the time of the offenses. Defendant
       directly appealed his conviction in this case, arguing only that, because the same evidence
       was presented against Angel Luciano during their simultaneous trial, and Angel Luciano was
       acquitted, the evidence was insufficient to support defendant’s conviction. We held that the
       evidence was sufficient to convict defendant because the trial court carefully segregated and
       considered the evidence pertaining to each defendant. Because some evidence was admitted
       against defendant and not against his father, i.e., the evidence pertaining to each defendant
       was not identical, the evidence against defendant supported his conviction. See Luciano I,
       No. 2-09-0066 (Oct. 26, 2010) (unpublished order under Supreme Court Rule 23).
¶8          Subsequently, defendant filed a pro se postconviction petition. In the postconviction
       petition, defendant raised, among other things, an ineffective-assistance claim, contending
       that the 2007 murder charges were subject to compulsory joinder with the 1991 solicitation-
       to-commit-aggravated-discharge and gun-possession charges, so trial counsel was ineffective
       for failing to move to dismiss the 2007 charges, and appellate counsel was ineffective for
       failing to raise trial counsel’s ineffective assistance. The trial court summarily dismissed the
       petition.

¶9                                          B. The Trial
¶ 10       We next give a brief overview of the trial. As earlier noted, on Halloween night of 1990,
       Gonzalez was shot to death at his home. A police investigation revealed that the shooters
       stood on a grassy area about 190 feet from the house and shot through its walls. Gonzalez
       was struck in the chest and died from a bullet wound to his heart. Scant comfort though it
       may be, at the time of the shooting, Gonzalez’s wife and children were out of the house trick-
       or-treating. The police investigation of the grassy area uncovered shells and shell casings of
       various calibers and types, including rifle and shotgun ammunition.
¶ 11       On November 4, 1990, the police searched a residence on Galena Boulevard in Aurora,
       recovering a number of weapons and ammunition. Photographs of Angel Luciano with others
       making gang signs, Latin Kings records, solvent, and rubber gloves were also recovered.
       Searches of other structures on the property, namely, a trailer and a panel van, uncovered
       more ammunition, photographs, and a newspaper clipping about the Gonzalez murder.


                                                 -3-
¶ 12        On November 7, 1990, the police searched an apartment on Best Place in Aurora
       following an interview with Hector “Winehead” Rodriguez. Hector Rodriguez had told
       police about an October 31, 1990, meeting at which weapons were distributed to Latin Kings
       members, including Rangel, Jose “Bam Bam” Martinez, and Jose “Speedy” Rivera, with
       orders to use them to shoot Gonzalez. Hector Rodriguez had also told police that, on
       November 3, 1990, the weapons were returned to defendant at the Best Place apartment.
¶ 13        Police executed the search warrant late that night. Inside the bedroom, police recovered
       weapons that were later determined to be consistent with the evidence discovered at the
       grassy area across from Gonzalez’s house. In particular, they found a sawed-off “Ted
       Williams” 12-gauge shotgun, a Commando Mark .45-caliber assault rifle with 27 bullets still
       in its magazine, a .30-caliber carbine, and a Marlin .30-30 rifle. In addition, assorted
       ammunition of various calibers was recovered. Testing matched evidence from the grassy
       area to the Ted Williams shotgun, the Marlin .30-30 rifle, and the Commando Mark .45
       assault rifle. Additionally, defendant’s fingerprints were found on the Commando Mark .45
       assault rifle.
¶ 14        Juan Acevedo spoke to police and revealed that three Latin Kings–Rangel, Michael
       “Loco” Rodriguez, and Jose Delatorre–visited his house after the shooting. Acevedo related
       that the three used an outside water spigot to wash their hands, and then they left. The police
       searched Michael Rodriguez’s home, recovering a loaded .22-caliber gun.
¶ 15        Late in 1990, the Kane County State’s Attorney began prosecuting cases arising from the
       Gonzalez shooting. Rangel was charged with Gonzalez’s murder; defendant was charged
       with a number of gun possession offenses and, in May 1991, the charge of solicitation to
       commit aggravated discharge of a firearm was added. While defendant’s charges were
       pending, Rangel went to trial on the murder charge. At the trial, Hector Rodriguez and
       Acevedo testified. Rangel was acquitted. Following the acquittal, in December 1991,
       defendant pleaded guilty to possessing the Ted Williams shotgun, the Marlin .30-30 rifle, and
       the Commando Mark .45 assault rifle, in exchange for the State’s agreement to nol-pros the
       charge of solicitation to commit aggravated discharge of a firearm. We note that, at
       defendant’s trial for the murder of Gonzalez, his guilty pleas were entered into evidence to
       demonstrate that he possessed the weapons that were used in the Gonzalez shooting.
¶ 16        The Gonzalez murder investigation languished for about 15 years. Federal efforts into
       investigating the Aurora Latin Kings began to turn members and former members into
       cooperating witnesses. In 2007, defendant was charged with the murder of Gonzalez. At the
       trial, several witnesses who were active in the Aurora Latin Kings around the time of the
       Gonzalez shooting testified for the State.
¶ 17        Michael Rodriguez testified about a meeting, held in the basement of Angel Luciano’s
       house on Galena Boulevard, that occurred before Halloween. According to Michael
       Rodriguez, the same members who would later attend the Halloween meeting were present.
       Michael Rodriguez testified that Angel Luciano told the attending members that Halloween
       presented the gang with a good opportunity to wear black (one of the gang’s colors) and do
       shootings. Michael Rodriguez also testified about the Halloween night meeting, which took
       place at the house of Angel Luciano’s girlfriend. Attending the meeting were Angel Luciano,


                                                -4-
       defendant, Hector Rodriguez, Rivera, Jose “Fang” Hernandez, Juan “Orco” Corral, Jose
       Oliva, and “Joe.” A number of rifles were piled on a table and defendant told the
       membership to go out and shoot up rival gangs. Michael Rodriguez testified that defendant
       passed a shotgun to Rangel, a .30-30 to “Joe,” and the .45-caliber assault rifle to Hector
       Rodriguez. Michael Rodriguez testified that he did not receive a weapon from defendant and
       asserted that Irving Childress did not receive a weapon from defendant, either. Michael
       Rodriguez testified that Angel Luciano ordered him, Rangel, Joe, and Childress to “hit”
       Gonzalez. Due to a recent injury, Childress was excused and he gave Michael Rodriguez his
       weapon. Angel Luciano also instructed the group to go to a park near the Gonzalez house and
       shoot from there.
¶ 18       Michael Rodriguez described how he, Rangel, and Joe went to the grassy area and shot
       at Gonzalez’s house. He testified that he used a .22-caliber rifle and, after the shooting,
       dropped it in the grassy area as they ran back to Joe’s car. The three then went to Acevedo’s
       house. Joe and Rangel dropped off the other weapons there and they all washed their hands.
¶ 19       Michael Rodriguez also testified about the plea deal he had entered into with the State.
       He revealed that, in exchange for his testimony and pleading guilty to conspiracy to commit
       murder, he received a seven-year sentence. The sentence was reduced to five years after he
       had testified in another homicide case.
¶ 20       Hector Rodriguez testified that defendant ordered him to shoot Gonzalez and gave him
       the Commando Mark .45-caliber assault rifle to use in that task. Hector Rodriguez testified
       that there had been a Latin Kings meeting during the afternoon of Halloween, and he thought
       it occurred in the basement of Diane’s house (Diane was a girlfriend of Angel Luciano).
       Rangel and defendant were among the gang members who attended the meeting. It was at
       this meeting when defendant ordered Hector Rodriguez to perform the shooting.
¶ 21       Hector Rodriguez testified that he drove with Rivera to Gonzalez’s home to do a drive-by
       shooting, with the assault rifle. As he was driving by the Gonzalez home, he observed police
       and other emergency vehicles already at the scene, so he drove off. Later, defendant told him
       to “move” the assault rifle, so he returned the weapon to defendant at Diane’s house (but this
       location was, according to Hector Rodriguez, not the same place where the Halloween-
       afternoon meeting occurred). Hector Rodriguez testified that he placed the assault rifle on
       a bed with other weapons, including the Ted Williams shotgun and the Marlin rifle, while
       defendant was busy wiping down all of the weapons.
¶ 22       Hector Rodriguez also testified that, a couple of nights before Halloween, he went to the
       Attic, a bar located in downtown Aurora. There, he encountered other Latin Kings gang
       members, including defendant and Angel Luciano. At the Attic, Angel Luciano instructed
       him to perform a drive-by shooting at Gonzalez’s house.
¶ 23       Hector Rodriguez also acknowledged that he had testified for the State during Rangel’s
       October 1991 murder trial. In his testimony in the Rangel trial, he had asserted that the
       Halloween-day meeting occurred in a house on Plain Avenue. In the present trial, Hector
       Rodriguez asserted that he had dropped out of the Latin Kings gang and was not receiving
       any consideration for his testimony. He acknowledged, however, that he understood that the
       Kane County State’s Attorney’s office would send a letter indicating his cooperation in this


                                                -5-
       matter to the Wisconsin prosecutor who had convicted him of a sex offense, for which he
       was serving a five-year term of incarceration. In addition, the record shows that, despite his
       claim that he was not receiving consideration for testifying in the Rangel trial, drug charges
       against him had been withdrawn after his testimony at that trial.
¶ 24        Oliva testified about a gang meeting on Halloween day in 1990. Oliva testified that
       defendant was present, along with Rangel, Martinez, and others (but could not recall if
       Michael Rodriguez was present). Oliva testified that between 15 and 30 guns were spread
       out on a table. The members were told to take guns and use them against other gangs; they
       took guns and left in groups. Oliva testified that he was instructed to hit Gonzalez. He
       observed Rangel take a sawed-off shotgun and Martinez take a .30-30 rifle. Oliva testified
       that he spent the night driving around with a couple of girls and, a couple of hours after the
       offense, he learned that Gonzalez had been shot.
¶ 25        Oliva noted that, on November 4, 1990, he was first questioned by the police. During
       police questioning, Oliva gave police a mixture of true information and lies. Oliva
       acknowledged that, during a 2006 federal trial, he admitted that he had provided false
       testimony in the past. Oliva also acknowledged that, in exchange for his testimony against
       defendant, he had been given favorable sentencing terms when he was facing a possible
       natural-life term arising from drug convictions. Oliva acknowledged that he could be
       released from prison in as little as 15 months if the federal authorities believed that he was
       cooperating.
¶ 26        Hernandez testified about a gang meeting that he believed was held on Halloween.
       According to Hernandez, Angel Luciano ran the meeting and defendant was present, but he
       could not recall who else attended. Hernandez testified that Angel Luciano told those present
       to get a gun and shoot members of the Insane Deuces during the night. Hernandez testified
       that some of those present already had guns; guns were given to those who did not already
       have them, but Hernandez was unable to recall who distributed the guns.
¶ 27        Hernandez testified that, later that night, he went to Acevedo’s house. Rangel, Michael
       Rodriguez, and Martinez drove up and Hernandez saw that they had a shotgun and a .30-30
       rifle in the car. The three drove away, and, shortly after, he heard some gunshots from the
       direction of Gonzalez’s house.
¶ 28        Hernandez acknowledged that he had been given a good deal in exchange for a guilty
       plea. In exchange for his plea and his testimony at trials, Hernandez’s sentence was
       significantly reduced.
¶ 29        In addition to the gang members, the State presented the testimony of Detective Langston
       of the Aurora police. Langston testified as an expert witness about street gangs. Langston
       testified that, in October 1990, Angel Luciano was the leader of the Latin Kings and
       defendant was a member, as were a number of other witnesses. Gonzalez was a member of
       the Insane Deuces, and the Latin Kings and the Insane Deuces were at war at that time.
       Langston opined that the Gonzalez shooting was gang-related. Langston also revealed that
       he had been shot by a Latin Kings gang member and that he did not like the Latin Kings, but
       he denied that he held any personal animosity toward defendant or Angel Luciano.
¶ 30        Defendant called Acevedo to testify on his behalf. Acevedo testified that, on Halloween

                                                -6-
       1990, he had been recently released from prison and was subject to electronic monitoring and
       could not go more than 150 feet from his house. On that night, he did not violate the terms
       of his release. Acevedo testified that Hernandez came to his house in the evening, then left
       and did not return that evening. Later, a car carrying Rangel, Delatorre, Michael Rodriguez,
       and Childress stopped by. The four men got out of the car and washed up at a spigot on the
       side of his house, and then they left. All of the men had guns, which they left in the back of
       Acevedo’s house.
¶ 31       In November 1990, Acevedo talked with the police. Acevedo told police that only three
       men had visited his house on Halloween; he did not mention Childress. Further, Acevedo
       told police that the men were not armed. Acevedo explained that, when talking to the police
       in November 1990, he did not want to mention that he was around guns or that there were
       guns at his house, because of the terms of his release. Acevedo testified at Rangel’s 1991
       murder trial. At the Rangel trial, Acevedo stated that he did not see Rangel on Halloween
       1990. Acevedo now admitted that he had lied in Rangel’s trial, and he noted that he was
       convicted of perjury for that testimony, receiving and serving a five-year sentence.
¶ 32       Acevedo testified that, on Halloween 1990, he figured out that Gonzalez had been shot.
       He recounted that he heard gunshots and observed the police driving toward the Gonzalez
       house shortly after the four Latin Kings left his house.
¶ 33       In April 2003, he first mentioned Childress’s involvement in the Gonzalez shooting,
       when he was being interviewed by federal authorities. He also mentioned the weapons he
       saw that night, although he admitted that he was not able to identify them on his own, but
       learned what they were from Childress.
¶ 34       The trial court carefully analyzed the evidence and carefully divided it between evidence
       pertaining only to defendant and evidence pertaining only to Angel Luciano. The trial court
       concluded that the evidence was not sufficient to convict Angel Luciano and acquitted him;
       contrarily, the trial court concluded that the evidence was sufficient to convict defendant and
       found him guilty.
¶ 35       The case then moved to the sentencing phase. A few months before defendant’s trial for
       the Gonzalez shooting, he had been convicted of murdering Willie Arce. As a result, the
       sentencing hearing in this case was very brief because the parties recognized that Illinois
       sentencing law at the time mandated a sentence of natural life without parole. The trial court
       expressed dislike for the mandatory natural-life term but acknowledged the need to follow
       the statute and imposed a sentence of natural life without parole, notwithstanding that, at the
       time of the Gonzalez shooting, defendant was 17 years of age.

¶ 36                                 C. Posttrial Proceedings
¶ 37       On direct appeal, defendant challenged only the sufficiency of the evidence. Defendant
       questioned how the same evidence could be both insufficient to convict his father and
       sufficient to convict him. We noted that the evidence pertaining to Angel Luciano differed
       from that pertaining to defendant and determined that, in fact, the evidence against defendant
       was stronger than that against Angel Luciano and was sufficient to support defendant’s
       conviction. See generally Luciano I, No. 2-09-0066 (Oct. 26, 2010) (unpublished order under

                                                -7-
       Supreme Court Rule 23).
¶ 38       On May 31, 2011, defendant filed his postconviction petition. In the petition, defendant
       raised a number of issues that were not addressed in the direct appeal, including whether the
       State violated a federal judicial order requiring the State to keep certain witnesses separated
       while in jail waiting to testify in this case, and whether defendant’s trial counsel was
       ineffective for failing to move to dismiss the murder charges, based on double jeopardy
       principles. Defendant argued that the murder charges were based on the same acts on which
       the gun-possession and solicitation-to-commit-aggravated-discharge charges were based,
       triggering the State’s obligation for the compulsory joinder of the charges in 1991. Defendant
       contended that, because the State had not joined the murder charges with the gun-possession
       and solicitation charges, his subsequent murder trial was untimely. Defendant additionally
       contended that his appellate counsel was ineffective for failing to raise the ineffectiveness
       and double jeopardy issues on appeal.
¶ 39       The trial court disagreed. It held that defendant failed to show that the State knew in
       1991, for purposes of compulsory joinder, of the facts underlying the murder prosecution.
       Accordingly, on July 25, 2011, the trial court summarily dismissed defendant’s
       postconviction petition. Defendant timely appeals.

¶ 40                                     II. ANALYSIS
¶ 41       On appeal, defendant raises two arguments. First, defendant contends that, in light of
       Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), which held that a statutory scheme
       that imposed a mandatory natural-life sentence on a minor violated the eighth amendment’s
       prohibition against cruel and unusual punishment, his mandatory life sentence imposed for
       his conviction of a second murder committed when he was 17 years of age also violates the
       eighth amendment. Second, defendant argues that his trial counsel was ineffective for failing
       to move to dismiss the murder charges raised against him in 2007, because the murder
       charges were based on the same acts as the 1991 gun-possession and solicitation-to-commit-
       aggravated-discharge (which was nol-prossed) charges, which acts were known to the State
       in 1991, thus violating compulsory-joinder and speedy-trial provisions. We consider each
       argument in turn.

¶ 42                                        A. Sentencing
¶ 43        Defendant first challenges the propriety of imposing a natural-life sentence upon a minor
       in light of Miller, which rendered mandatory life sentences for minors unconstitutional. We
       review de novo a challenge to the constitutionality of a statutory provision. People v. Hollins,
       2012 IL 112754, ¶ 13.
¶ 44        As a preliminary matter, during the pendency of this appeal, defendant filed three
       motions to cite additional authority, namely, People v. Williams, 2012 IL App (1st) 111145,
       People v. Morfin, 2012 IL App (1st) 103568, and again People v. Williams, 2012 IL App
       (1st) 111145, as modified December 12, 2012. We deny defendant’s first motion as moot (in
       light of the fact that the court modified the opinion on December 12, 2012) and grant
       defendant’s remaining two motions. We now turn to defendant’s claim that Miller should

                                                 -8-
       retroactively invalidate his mandatory natural life sentence.
¶ 45        The State argues that defendant’s Miller argument should fail for three reasons. First,
       defendant has forfeited the argument altogether. Second, Miller is not retroactively applicable
       to defendant’s sentence in this postconviction posture. Third and last, the sentencing
       provision is not unconstitutional under the proportionate penalties clause of the Illinois
       Constitution. We consider the State’s claims in turn.
¶ 46        The first hurdle for defendant is the claim of forfeiture. The State contends that defendant
       asserted the unconstitutionality of his sentence neither in his direct appeal nor in his
       postconviction petition, thereby forfeiting his claim. The State notes that, because
       postconviction proceedings are designed to allow inquiry into issues that were not and could
       not have been decided on direct appeal, issues that were presented and decided on direct
       appeal are barred by res judicata, and issues that could have been presented on direct appeal,
       but were not, are forfeited. People v. Tate, 2012 IL 112214, ¶ 8. Defendant counters that his
       sentence was void and could be challenged at any time. See People v. Brown, 225 Ill. 2d 188,
       203 (2007) (a sentence that is statutorily unauthorized or violates the constitution is void and
       subject to challenge at any time). It is also well established that “any time” includes for the
       first time in the appeal of a dismissal of a postconviction petition. People v. Thompson, 209
       Ill. 2d 19, 25-27 (2004).
¶ 47        The State contends that defendant’s counterargument, that the mandatory life sentencing
       provision (Ill. Rev. Stat. 1989, ch. 38, ¶ 1005-8-1(a)(1)(c) (now 730 ILCS 5/5-8-1-(a)(1)(c)(i)
       (West 2010))) is void ab initio, is incorrect because the statute is not facially
       unconstitutional. See People v. Jackson, 199 Ill. 2d 286, 300 (2002) (only a facially
       unconstitutional statute (one for which there is no set of circumstances under which it would
       be valid) is void ab initio). The State argues that, because Miller did not proscribe life-
       without-parole sentences for juveniles, only mandatory life without parole, and because
       mandatory life-without-parole sentences may be imposed on nonjuveniles, there exist
       circumstances under which the sentencing provision is valid. The State concludes that,
       because the sentencing provision is not facially unconstitutional, it is not void ab initio, and
       because defendant did not properly raise his challenge at trial, on direct appeal, or in his
       postconviction petition, he has forfeited this contention. We disagree.
¶ 48        While the State accurately cites authority to support its reasoning, its argument is far too
       narrow. Defendant does in fact contend that the statute is void ab initio, but he also contends
       simply that his sentence is void because it violates the Constitution pursuant to the reasoning
       of Miller. While it is true that a statutory provision that is void ab initio may be challenged
       at any time (People v. Wright, 194 Ill. 2d 1, 23-24 (2000)), it is also true that a sentence that
       contravenes the Constitution may be challenged at any time (People v. Strawbridge, 404 Ill.
       App. 3d 460, 470 (2010)). Because defendant’s argument is a proper voidness challenge to
       his sentence, we may consider it. Id. (“[a]s [the] defendant’s contention is that his sentence
       [is void], we will review it”).
¶ 49        Next, defendant must establish the retroactive applicability of the Miller decision to this
       case. To do that, defendant must first show that Miller would apply to the provisions at issue
       in this case.


                                                 -9-
¶ 50        In Miller, the United States Supreme Court held that the United States Constitution
       prohibits a mandatory natural-life sentence for juvenile offenders. At the time of the offense
       in this case, the Illinois sentencing scheme contained several provisions that acted together
       to impose a natural-life-without-parole sentence on defendant. Section 5-4 required offenders
       accused of murder and older than 15 years to be tried and sentenced as adults. Ill. Rev. Stat.
       1989, ch. 37, ¶ 805-4. The same provision also generally permitted offenders of 17 years to
       be sentenced as adults. Id. Under the sentencing provision most directly at issue, “the court
       shall sentence the defendant to a term of natural life imprisonment *** if the defendant has
       previously been convicted of first degree murder.” Ill. Rev. Stat. 1989, ch. 38, ¶ 1005-8-
       1(a)(1)(c) (now 730 ILCS 5/5-8-1(a)(1)(c)(i) (West 2010)). That provision consistently has
       been interpreted to require the imposition of a natural-life sentence on anyone convicted of
       more than one murder, regardless of the offender’s age. People v. Amigon, 239 Ill. 2d 71, 84
       (2010); People v. Taylor, 102 Ill. 2d 201, 206 (1984). Further, at the time of the offense, any
       natural-life sentence was a sentence without the possibility of parole. Ill. Rev. Stat. 1989, ch.
       38, ¶ 1003-3-3(d) (“[n]o person serving a term of natural life imprisonment may be paroled
       or released except through executive clemency” (now 730 ILCS 5/3-3-3 (West 2010))).
       These provisions, then, constituted the type of sentencing scheme determined to be
       unconstitutional in Miller. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.
¶ 51        Next, we consider the issue of retroactive application. Generally, a new constitutional
       rule will not be applied retroactively to a case on collateral review. People v. Sanders, 238
       Ill. 2d 391, 401 (2010). The rationale for this general rule recognizes the State’s legitimate
       interest in the finality of criminal convictions. Id. However, exceptions exist: in Teague v.
       Lane, 489 U.S. 288, 301 (1989), the United States Supreme Court determined that a new
       constitutional rule will retroactively apply (1) if the new rule placed certain kinds of primary,
       private individual conduct beyond the power of the criminal-law-making authority to
       proscribe, or (2) if the new rule required the observance of procedures that are implicit in the
       concept of ordered liberty. Sanders, 238 Ill. 2d at 401.
¶ 52        Explaining further, with the first exception, the Court was speaking to substantive, as
       opposed to procedural, rules, and it included within the exception rules not only placing
       particular conduct or persons beyond the State’s power to punish, but also limiting the
       penalty to be applied to a certain defendant. Schriro v. Summerlin, 542 U. S. 348, 352 (2004).
       In contrast, the second exception is concerned with procedural rules only and, particularly,
       only those procedural rules that can be deemed “watershed rules of criminal procedure” and
       that affect the likely accuracy of a conviction. (Internal quotation marks omitted.) Sanders,
       238 Ill. 2d at 401. A sentencing issue, which has no involvement in the accuracy of the
       conviction, then, is outside of the second Teague exception. People v. Morris, 236 Ill. 2d
       345, 363 (2010).
¶ 53        The State argues that neither of the Teague exceptions applies to this case. The State first
       emphasizes that Miller prescribed only the procedure to be followed in sentencing a juvenile
       defendant and did not ban altogether the imposition of natural-life sentences on juveniles.
       Further, the State relies on People v. Davis, 388 Ill. App. 3d 869 (2009), in which the
       appellate court held that our supreme court’s decision in People v. Miller, 202 Ill. 2d 328
       (2002) (hereinafter Leon Miller), would not be applied retroactively. We consider Davis in

                                                 -10-
       detail.
¶ 54        In Leon Miller, the defendant was convicted under a theory of accountability of two
       murders in which his participation was relatively minimal and passive, as a lookout. Id. at
       331. Our supreme court held that the mandatory life sentence imposed on the defendant was
       unconstitutional as applied to the defendant, violating the proportionate penalties clause of
       the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Leon Miller, 202 Ill. 2d at 341, 343.
       The supreme court further explained that, while a life sentence could be appropriate for a
       juvenile offender convicted under a theory of accountability, the sentence in that case was
       improper because it failed to account for the defendant’s level of involvement. Id. at 341-42.
¶ 55        In Davis, 388 Ill. App. 3d at 871, the appellate court considered whether Leon Miller
       should be applied retroactively to the defendant. The defendant was convicted of two 1990
       murders for which he received a mandatory life sentence. The defendant participated in the
       planning and execution of the offenses, but the evidence showed that he did not actually
       shoot any of the victims. Id. at 873-74. The defendant filed several successive postconviction
       petitions, all of which were dismissed. He then filed a petition seeking relief from judgment
       on the theory that Leon Miller rendered his sentence, i.e., a mandatory life sentence for a
       juvenile convicted of two murders, albeit under a theory of accountability, unconstitutional,
       and this petition was ultimately dismissed. Id. at 876-77. The Davis court conducted the
       Teague analysis and held that Leon Miller did not create a new substantive rule and thus did
       not apply retroactively to the defendant. Id. at 882.
¶ 56        The State appears to rely on Davis for two main reasons. First, as an example of a proper
       Teague analysis. Second, as a demonstration that Miller did not announce a substantive rule
       of law. The State points to the Davis court’s determination that Leon Miller did not announce
       a new substantive rule because Leon Miller did not prohibit the imposition of natural-life
       sentences for all juveniles convicted under a theory of accountability. See id. at 881. The
       State appears to reason that, similar to the Illinois Supreme Court’s holding in Leon Miller,
       the United States Supreme Court in Miller did not announce a new substantive rule because
       it acknowledged that sentences of natural life could be appropriate for some juveniles
       (Miller, 567 U.S. at ___, 132 S. Ct. at 2469), leading to the conclusion that Miller does not
       warrant retroactive application in this case (see Davis, 388 Ill. App. 3d at 882 (holding that
       Leon Miller did not announce a new substantive rule and did not otherwise warrant
       retroactive application)). We disagree.
¶ 57        Recently, in Morfin, 2012 IL App (1st) 103568, the First District determined that Miller
       should be applied retroactively to a case on collateral review. The court reasoned that Miller
       announced a substantive rule by requiring for every minor convicted of first-degree murder
       a sentencing hearing at which a sentence other than natural life must be made available for
       consideration. Id. ¶ 56. In other words, because Miller required the court to consider a
       sentencing range broader than that provided by statute for minors convicted of first-degree
       murder, it was not a procedural rule, but a substantive rule. Id. The fact that the potential
       sentence of natural life was not categorically eliminated by Miller did not matter, because the
       sentencing range for minors convicted of first-degree murder had been broadened
       categorically. Id. In so reasoning, the Morfin court distinguished recent foreign authority that
       had declined to apply Miller retroactively. Id.; see Geter v. State, No. 3D12-1736, 2012 WL

                                                 -11-
       4448860, at *5 (Fla. Dist. Ct. App. Sept. 27, 2012) (holding that Miller was not substantive,
       but only procedural); Gonzalez v. State, 101 So. 3d 886 (Fla. Dist. Ct. App. 2012) (following
       Geter); People v. Carp, No. 307758, 2012 WL 5846553 (Mich. Ct. App. Nov. 15, 2012)
       (same). (We note that the State also cites to Geter, arguing that the weight of authority, both
       Illinois and foreign, runs in support of its position that Miller should not be applied
       retroactively.) We find Morfin to be persuasive. We agree that, while Miller can be read to
       announce a procedural rule, namely, the requirement that youth-related mitigation be
       considered in any sentencing hearing in which a minor would otherwise be subject to a
       mandatory natural-life sentence, there is a valid and substantive distinction between the pre-
       Miller sentencing regime and the Miller-mandated broadened range of sentencing options
       that courts are to consider. Accordingly, we accept and choose to follow the holding in
       Morfin and agree that Miller’s rule is better understood to be a substantive rule and not a
       solely procedural rule. Morfin, 2012 IL App (1st) 103568, ¶ 56.
¶ 58        Further supporting our determination, we note that Davis is distinguishable. First, Davis
       was decided well before the United States Supreme Court announced its decision in Miller.
       The Davis court did not have the benefit of the Miller decision in determining whether Leon
       Miller was to be applied retroactively and thus the constitutional landscape was completely
       different at the time Davis was decided. Second, Davis was factually distinguishable from
       Leon Miller to the extent that the Leon Miller holding would not have been applicable even
       on direct appeal. As we noted above, Leon Miller involved a 15-year-old defendant who
       acted only as a lookout (Leon Miller, 202 Ill. 2d at 331) and who was “the least culpable
       offender imaginable” (id. at 341). In Davis, by contrast, the defendant was involved in the
       planning and execution of the offenses, and it was only by fortuity that he was unable to
       shoot at the victims. Davis, 388 Ill. App. 3d at 873-74. In Davis, then, the defendant was
       perhaps only accountable for his codefendants’ actions, but he also planned and actively
       participated in the offenses; Leon Miller specifically distinguished the type of defendant in
       Davis: “It is certainly possible to contemplate a situation where a juvenile offender actively
       participated in the planning of a crime resulting in the death of two or more individuals, such
       that a sentence of natural life imprisonment without the possibility of parole is appropriate.”
       Leon Miller, 202 Ill. 2d at 341. The factual situation in Davis presents exactly the type of
       juvenile offender for whom a sentence of life without parole could be appropriate, as
       contemplated in Leon Miller.
¶ 59        Last, there is a substantive change wrought by Miller, which is illustrated effectively by
       considering the sentencing standards to be employed after Leon Miller and Miller. Leon
       Miller made the punishment of a juvenile offender convicted of two murders a matter of the
       trial court’s discretion, so that the defendant would be sentenced to natural life without
       parole unless he would be able to make out a case that such a punishment would be
       constitutionally invalid as applied to him under his particular circumstances. Miller, by
       contrast, requires in every case with a minor defendant a full sentencing hearing with a range
       of sentences available to the court, even in a situation that would otherwise qualify the
       offender for a mandatory life sentence without parole. Stated differently, mitigation faces an
       uphill battle in a case in which the Leon Miller holding is applied, but mitigation is on an
       equal footing with other considerations in a case in which the Miller holding is applied. See

                                                -12-
       Morfin, 2012 IL App (1st) 103568, ¶ 58. Thus, we find Davis and its reasoning to be
       distinguishable from the case at bar.
¶ 60        The State also argues that Miller is outside of the second Teague exception because it
       does not announce a watershed rule of criminal procedure, such as Gideon v. Wainwright,
       372 U.S. 335 (1963). The State also contends that the second Teague exception is extremely
       narrow, citing a number of Supreme Court cases that rejected retroactive application of new
       rules. We note that a different panel of the First District Appellate Court determined that
       Miller in fact stated a watershed rule of criminal procedure sufficient to qualify under the
       second Teague exception. Williams, 2012 IL App (1st) 111145, ¶¶ 52-53 (modified
       December 12, 2012). Nevertheless, because of our determination to follow Morfin, we need
       not further evaluate the merits of the State’s arguments regarding the second Teague
       exception. We express no opinion on Williams and whether we would follow it or distinguish
       it.
¶ 61        We next turn to the State’s third and final contention on this point, that the sentencing
       provision is not unconstitutional under Illinois’s constitution. We have determined that
       Miller is retroactively applicable to this case, implicitly finding the sentencing provision to
       be in violation of the United States Constitution. We need not further address the State’s
       argument regarding whether the sentencing provision passes muster under the Illinois
       Constitution, because the finding of a violation of the United States Constitution would
       trump any determination under the Illinois Constitution. People v. Mata, 217 Ill. 2d 535, 546-
       47 (2005).
¶ 62        Our determination that Miller applies retroactively to this case raises the issue of the
       relief to which defendant is entitled. Our holding means that the sentencing scheme under
       which defendant was sentenced is unconstitutional. Miller held that a “mandatory” life
       sentence was unconstitutional where a juvenile offender was to be sentenced. Thus, because
       defendant here was sentenced to a mandatory term of natural life without parole, his sentence
       is invalid and we vacate it. We find that defendant is entitled to a new sentencing hearing at
       which the trial court may consider all permissible sentences and is not limited to the sentence
       of life without parole. See People v. Hauschild, 226 Ill. 2d 63, 88-89 (2007) (proper remedy
       when a sentencing provision is held to be unconstitutional is to allow resentencing in
       accordance with the statute absent the invalid provision).
¶ 63        Defendant argues that, on resentencing (actually, because we have vacated his sentence,
       it would be more properly termed a “sentencing” rather than a “resentencing,” but we will
       persist in using the term “resentencing” to denote that this will be a second and new
       sentencing hearing), he should be subject to only the 20- to 60-year range for murder. See Ill.
       Rev. Stat. 1989, ch. 38, ¶ 1005-8-1(a)(1)(a). We disagree. Miller did not invalidate the
       penalty of natural life without parole for a second murder conviction, only its mandatory
       character as applied to a minor defendant. Thus, the penalty is still on the table even though,
       as Miller states, its imposition should be uncommon because it will be the “rare juvenile
       offender whose crime reflects irreparable corruption.” (Internal quotation marks omitted.)
       Miller, 567 U.S. at ___, 136 S. Ct. at 2469. Accordingly, upon resentencing, we direct the
       trial court to consider all permissible sentences consistent with our decision here.


                                                -13-
¶ 64                                   B. Ineffective Assistance
¶ 65        Defendant next contends that the trial court erred in dismissing his postconviction
       petition, because he alleged the gist of a claim of ineffective assistance of both trial and
       appellate counsel. Specifically, defendant argues that both trial and appellate counsel were
       ineffective because trial counsel did not file a motion to dismiss the 2007 murder charges due
       to a violation of the compulsory-joinder provisions of the Criminal Code of 1961 (720 ILCS
       5/3-3 (West 2006)) and appellate counsel did not raise the issue. With regard to joinder,
       defendant argues that the 2007 murder prosecution was based on the same facts as the 1991
       charges of gun possession and solicitation to commit aggravated discharge of a firearm.
       Defendant specifically argues that the State had sufficient knowledge at the time of the 1991
       prosecution to also prosecute him for the Gonzalez murder. Defendant further reasons that,
       because the State waited, the speedy-trial period lapsed and a motion to dismiss the 2007
       prosecution would have been reasonably likely to succeed. Notwithstanding defendant’s
       substantive arguments, defendant also contends that, given the relatively relaxed pleading
       requirements for a first-stage postconviction petition, the trial court erred in holding that his
       petition was frivolous and patently without merit and dismissing it at the first stage.
¶ 66        Defendant’s arguments present something of an analytical onion, consisting of layers that
       must be peeled back individually to reach the next layer. In our view, it makes the most sense
       to tackle defendant’s “onion” from the inside out, dealing with the substance of his claims
       first. We do this in the knowledge that the parties and the reader are aware, at least generally,
       of the standards of review that pertain to a postconviction petition and a claim of ineffective
       assistance, which we shall deal with later. It seems unduly cumbersome to recite those
       standards in a vague and general way, when, if we proceed in an inside-out fashion, the
       standards and the parties’ contentions pertaining to ineffective-assistance and postconviction-
       petition claims will have a clear context.
¶ 67        Accordingly, we begin with defendant’s claim that the State possessed knowledge
       sufficient to allow it to initiate the murder prosecution at the same time it was prosecuting
       defendant for gun possession and solicitation to commit aggravated discharge of a firearm.
       Defendant points to the State’s general theory in the 2007 murder charges and at trial,
       namely, that he passed out guns to gang members and instructed them to shoot Gonzalez.
       Defendant notes that, during his sentencing for the gun-possession charges, this theory was
       presented by the State through the testimony of Officer Reichardt and used as evidence in
       aggravation. Defendant attached to the postconviction petition a copy of excerpts from the
       transcript of Reichardt’s testimony. In addition, defendant attached to his postconviction
       petition1 copies of a police report outlining this theory. According to defendant, the State’s


               1
                We note that defendant submitted a postconviction petition and a memorandum in support
       of the postconviction petition, both with attached exhibits. Defendant suggests that the trial court
       ignored the memorandum, because it appears to have ignored the exhibits attached to the
       memorandum. We deem that the petition and the memorandum, plus the exhibits attached to each,
       constitute defendant’s postconviction petition for purposes of our analysis and this decision.

                                                  -14-
       knowledge was sufficient in 1991 to allow the State to proceed with a murder prosecution
       at that time.
¶ 68        The State disagrees. The State argues that the evidence cited by defendant served only
       to make the State suspect that defendant might have been involved in the Gonzalez murder.
       In other words, rather than having knowledge of it, the State only suspected defendant’s
       involvement, and it did not have sufficient evidence to proceed with a murder prosecution.
       The State further points to defendant’s acknowledgment that, after the unsuccessful Rangel
       prosecution, the investigation into the Gonzalez murder stalled until 2005, when gang
       members from the time of the shooting began to cooperate with authorities. According to the
       State, it was not until this time that the cooperating witnesses finally provided it with
       sufficient evidence to transform its suspicion into knowledge for purposes of section 3-3 of
       the Criminal Code and to allow it to proceed with the murder prosecution against defendant.
¶ 69        The issue presented here turns on “knowledge” under section 3-3 of the Criminal Code.
       The State generally correctly presents and explains the rules of law to be followed.
       Ultimately, however, the State’s argument does not succeed in applying the identified rules
       to the circumstances here. We also note that defendant asserts that the State’s argument fails
       because the State does not focus on defendant’s postconviction petition, but on the record
       as a whole. According to defendant, when properly considered in the context of a first-stage
       postconviction submission, defendant adequately alleged the gist of a constitutional
       deprivation sufficient to allow the matter to proceed to the second stage. We first consider
       the requirements of the compulsory-joinder provision.
¶ 70        The compulsory-joinder provision states: “If the several offenses are known to the proper
       prosecuting officer at the time of commencing the prosecution and are within the jurisdiction
       of a single court, they must be prosecuted in a single prosecution ***.” 720 ILCS 5/3-3(b)
       (West 2006). This provision has been interpreted to mean that, where there are new and
       additional charges, if they arise from the same facts as the original charges and the State had
       knowledge of these facts at the commencement of the prosecution, then the new and
       additional charges must be brought to trial within the same limitations period that applies to
       the original charges. People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981) (hereinafter
       Ronald Williams). Further, regarding the new and additional charges, the defendant will not
       be charged with any delays or continuances that apply to the original charges, because to do
       so would allow the State to circumvent the protections of the compulsory-joinder and
       speedy-trial provisions in the Criminal Code and the Code of Criminal Procedure of 1963.
       Id. at 249. While this rule has been eroded somewhat over time (see People v. Gooden, 296
       Ill. App. 3d 205, 210 (1998), aff’d in part & rev’d in part, 189 Ill. 2d 209 (2000) (declining
       to follow Ronald Williams because there was no indication that the State was trying to
       circumvent the protections offered by the compulsory-joinder and speedy-trial provisions or
       to hinder the defendant’s defense while at the same time trying to prevent the defendant from
       benefitting from the continuances on the original charges while the speedy-trial term was
       counting down on the new charges)), our supreme court has steadfastly upheld the Ronald
       Williams rule (see Gooden, 189 Ill. 2d at 222 (delay occasioned by the State in filing the new
       and additional charges would not be attributable to the defendant)).
¶ 71        For example, in People v. Williams, 204 Ill. 2d 191, 207 (2003), our supreme court held

                                                -15-
       that, “[i]f the initial and subsequent charges filed against the defendant are subject to
       compulsory joinder, delays attributable to the defendant on the initial charges are not
       attributable to the defendant on the subsequent charges.” The court reiterated that the rule is
       designed to prevent the State from ambushing the defendant with the additional (and perhaps
       more serious) charges at the last minute even though it was able to prepare them during the
       pendency of the original charges, so that the defendant would face an unpalatable choice
       between enforcing his speedy-trial rights and giving them up in his need to prepare for trial
       on the new charges. Id. This consistent interpretation of the relationship between speedy-trial
       rights and the compulsory joinder provision is of relatively little import here where the lapse
       of time between the original charges and the additional charges is years rather than days, but
       it does illustrate the principle that the defendant will not be charged with the State’s delay
       in raising the additional charges, so that, if the additional charges are made outside of the
       speedy-trial limitations period for the original charges, the matter will not go forward.
¶ 72        Turning from the interplay between speedy trial and compulsory joinder, we focus on the
       terms of the compulsory-joinder provision in issue here, namely, how the State’s
       “knowledge” is interpreted. Looking at the terms of section 3-3, we are able to conclude that
       “knowledge” provides a fairly high threshold to trigger compulsory joinder, and case law
       supports this conclusion. Specifically, the legislature stated that “the several offenses” must
       be “known to the proper prosecuting officer.” (Emphasis added.) 720 ILCS 5/3-3(b) (West
       2006). We note that the legislature chose “knowledge” as opposed to some other standard,
       such as probable cause, to define the quantum of information the State must possess to
       trigger the compulsory-joinder provision. In interpreting a statutory provision, we seek to
       discern and give effect to the legislature’s intent. People v. Roberts, 2013 IL App (2d)
       110524, ¶ 4. The best indication of the legislature’s intent is the language used in the statute,
       which must be given its plain and ordinary meaning where the statute is unambiguous. Id.
       Here, the statute unambiguously requires that the “several offenses” be “known” to the State
       at the time the original offense is charged.
¶ 73        Further, the concept of “knowledge” (i.e., that something is known) is well settled and
       well defined in the criminal law. For example, as a state of mind, “knowing” or “knowledge”
       means that the actor is consciously aware that his or her conduct is of that nature described
       by the relevant statute or that those circumstances described by the relevant statute exist. 720
       ILCS 5/4-5(a) (West 2006). Similarly, the verb “to know” is pertinently defined as “to
       apprehend with certitude as true, factual, sure, or valid.” Webster’s Third New International
       Dictionary 1252 (1993). Thus, “known” for the purposes of the compulsory-joinder provision
       means a conscious awareness and certitude concerning relevant facts.
¶ 74        Further illustrating the role of “knowledge” are national prosecutorial standards, which
       offer tangential support to our view of section 3-3. For example, conceptions of prosecutorial
       discretion suggest that the prosecutor’s knowledge of a fact is based on the level of doubt of
       the defendant’s guilt and the sufficiency or insufficiency of admissible evidence of the
       defendant’s guilt. See National District Attorneys Ass’n, National Prosecution Standards,
       pt. IV (1), (2) (3d ed.); see also ABA Standards for Criminal Justice Standard 3-3.9 (3d ed.
       1993). Thus, “knowledge” for purposes of the compulsory-joinder provision is related to the
       prosecutor’s confidence that he or she can secure the defendant’s conviction of the crime

                                                 -16-
       charged.
¶ 75       Finally, we observe that the prosecutor’s discretion is necessarily brought into issue when
       evaluating the State’s knowledge for purposes of section 3-3. “The State’s Attorney is the
       representative of the People and has the responsibility of evaluating the evidence and other
       pertinent factors and determining what offense can properly and should properly be charged.”
       People v. Rhodes, 38 Ill. 2d 389, 396 (1967). This discretion thus should be considered when
       evaluating the State’s knowledge of the evidence and facts for purposes of determining
       whether a later charge was subject to compulsory joinder with the original charge.
¶ 76       People v. Ursery, 364 Ill. App. 3d 680 (2006), both confirms our view of the proper
       interpretation of “knowledge” for purposes of section 3-3 and demonstrates how the
       prosecutor’s knowledge is evaluated. In Ursery, following the shooting death of the victim,
       the defendant was arrested and charged with aggravated discharge of a firearm and
       aggravated unlawful use of a weapon. Id. at 684-85. These charges were in part based on the
       defendant’s statement admitting that he fired a gun at the victim in self-defense, but claiming
       that he fired only two shots, dropped the gun, ran away, and, while fleeing, heard more shots.
       Id. at 684. Other evidence indicated that the shots fired at the victim were all rapid and
       without a pause after the first two shots. Id. at 681-82. In addition, the victim identified the
       shooter as a particular individual’s friend, and the police determined that the defendant fit
       that description. Id. at 684. The defendant was placed into the county jail and, about a month
       later, the defendant bragged to his cell mate, who happened to be a friend of the victim, that
       he had used gloves in the deliberate shooting of the victim, so he could not be tied to the
       crime. Id. at 685. About two months after the defendant bragged to his cell mate, the State
       charged the defendant with murder. Id. Following a trial, the defendant was convicted of
       murder. Id.
¶ 77       The defendant appealed and argued that the State failed to timely institute the murder
       prosecution, violating the compulsory-joinder requirements of section 3-3 of the Criminal
       Code. The appellate court reasoned that, at the time the defendant was initially charged with
       the weapons offenses, the State had enough evidence to allow it only to suspect that the
       defendant intended to kill the victim. At that point, the State was not required to join the
       murder charge to the weapons charges, because the State only suspected and did not “know,”
       pursuant to the compulsory-joinder provision and given the available evidence, that the
       defendant intended to kill the victim. Id. at 690. It was not until the State learned that the
       defendant had bragged about killing the victim, and noted that he planned the offense so as
       not to leave any evidence, that the State had knowledge of the offense of murder for purposes
       of the compulsory-joinder provision. Id. Because the State did not know of the murder
       (despite some circumstantial evidence that appeared to correlate with the State’s theory at
       the eventual murder trial) for purposes of the statute, the offense was not subject to
       compulsory joinder with the weapons offenses at the time they were charged, and the murder
       charge was not prosecuted untimely or in violation of the defendant’s speedy-trial rights. Id.
¶ 78       Viewing the foregoing together, we conclude that, for purposes of section 3-3,
       “knowledge” or “known to the proper prosecuting officer” means the conscious awareness
       of evidence that is sufficient to give the State a reasonable chance to secure a conviction.
       When the State has that awareness necessarily defies universal definition, and thus it must

                                                -17-
       be determined on a case-by-case basis. Likewise, when the State has only a suspicion of the
       defendant’s involvement in an offense is a similarly fuzzy concept that must also be
       determined case by case. With these principles in mind, we turn to the parties’ contentions.
¶ 79        Defendant argues that the State unquestionably knew about his alleged participation in
       the Gonzalez shooting. Defendant notes that, shortly after the Gonzalez shooting, the State
       charged defendant with gun possession and solicitation to commit aggravated discharge of
       a firearm. At the time these charges were pending, the State had information from a
       confidential informant, Hector Rodriguez, that defendant had both passed out the weapons
       and issued the instructions for the Gonzalez shooting. Defendant contends that the State used
       this theory of defendant’s involvement in the Gonzalez shooting as evidence in aggravation
       for defendant’s sentencing for the gun-possession offenses. Additionally, in the 2007 murder
       prosecution, the State used defendant’s admissions of possessing the firearms used in the
       Gonzalez shooting as evidence to support its theory of defendant passing out the weapons
       and ordering the shooting. Defendant contends that, as a result, he should have been
       prosecuted in 1991 for the murder charges that the State actually initiated in 2007. He adds
       that the State’s failure to do so ran afoul of the Ronald Williams rule and resulted in the lapse
       of the speedy-trial period. According to defendant, because the 2007 murder prosecution was
       untimely, his conviction of that offense cannot stand.
¶ 80        The State counters that it had only a general idea or suspicion concerning defendant’s
       participation in the Gonzalez shooting. The State acknowledges that it knew after the
       Gonzalez shooting that defendant had received a number of firearms, including the ones used
       in the shooting. The State also had information from Hector Rodriguez that defendant might
       have been involved by holding a meeting and passing out the weapons and ordering the
       Gonzalez shooting to proceed. However, a number of the gang members who testified for
       the State at defendant’s murder trial revealed that, in 1991, they lied to police about various
       details of the offense. Thus, the testimony that supported the State’s theory in the 2007
       murder charges and trial was not available to the State in 1991. Additionally, while Hector
       Rodriguez told police that defendant ran the meeting and passed out the weapons and ordered
       the Gonzalez shooting to proceed, other gang members had different recollections both at the
       time of the shooting and at defendant’s trial for the murder of Gonzalez. While the State had
       some information that tended to indicate that defendant had been involved in the Gonzalez
       shooting, that information was insufficient to prove that defendant had been involved. It was
       only when more gang members decided to cooperate with the authorities that the State
       received information that validated its suspicions about defendant’s involvement. The State
       concludes that, as a result, it cannot be determined that, for purposes of section 3-3 of the
       Criminal Code, the State had the requisite knowledge that would have compelled it to charge
       defendant with murder at the same time it was prosecuting defendant for gun possession and
       solicitation to commit aggravated discharge of a firearm.
¶ 81        Both parties provide sound arguments that draw support from the record. For example,
       defendant’s primary contention, that the State used the same theory of the case both as
       evidence in aggravation for his sentencing on the 1991 gun-possession charges and in the
       2007 murder charges, is bolstered by the fact that Hector Rodriguez both provided the police
       with information in 1991 and testified in the murder trial. Hector Rodriguez both times

                                                 -18-
       offered evidence that defendant passed out the weapons and instructed the gang to shoot
       Gonzalez. Likewise, the State’s contention, that it had only a suspicion about defendant’s
       involvement in the Gonzalez murder, finds support in the facts that, after 1991, the
       investigation languished until cooperating witnesses from the gang began to come forward,
       and those cooperating witnesses admitted during the murder trial that they had lied to the
       police during the investigation at the time of the offense. That said, we further note that our
       resolution of the substantive issue here, whether the State had “knowledge” sufficient to
       require compulsory joinder, hinges on the procedural posture of the contention, raised in
       defendant’s postconviction petition. Therefore, we turn to the standards governing a
       postconviction petition.
¶ 82        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) provides
       a method by which a defendant can assert that his or her conviction resulted from the denial
       of state or federal constitutional rights. People v. Hodges, 234 Ill. 2d 1, 9 (2009). To
       commence proceedings under the Act, the defendant must file a petition in the circuit court
       in which the underlying trial took place, and the petition must set forth how the defendant’s
       constitutional rights were violated. Id. Because most postconviction petitions are filed by
       defendants with little or no legal training, only a limited amount of detail is required in the
       first-stage petition, and the threshold for surviving the first stage is low. Id. In other words,
       the defendant need set forth only the gist of a claim of deprivation of constitutional rights,
       even if the petition does not include formal legal arguments and citations to authority. Id.
¶ 83        At the first stage in the postconviction process, the trial court reviews the defendant’s
       petition on its own, without input from the parties. People v. Brown, 236 Ill. 2d 175, 184
       (2010). During this stage, the trial court may review the court file, transcripts, and any
       appellate court actions. Id. At this stage, the court treats allegations of fact as true so long as
       those allegations are not affirmatively rebutted by the record. People v. Bethel, 2012 IL App
       (5th) 100330, ¶ 10. The petition will be dismissed if it is frivolous or patently without merit.
       725 ILCS 5/122-2.1(a)(2) (West 2010). A postconviction petition is frivolous or patently
       without merit where it has no arguable basis either in law or in fact. Hodges, 234 Ill. 2d at
       16. Further, a petition that lacks an arguable basis in either law or fact is one that is based on
       an indisputably meritless legal theory or fanciful factual allegations. Id. An example of an
       indisputably meritless legal theory is one that is completely contradicted by the record. Id.
       Similarly, fanciful factual allegations include those that are fantastic or delusional. Brown,
       236 Ill. 2d at 185.
¶ 84        Defendant argues that the trial court erred by looking beyond the allegations of his
       postconviction petition and overlooking the materials submitted with the petition. This
       contention, however, fails to acknowledge that the trial court is allowed to look through the
       record. Id. at 184. The State, for its part, argues that consideration of the entire record
       contradicted defendant’s contention that the State was required to join the murder charges
       to the gun-possession and solicitation-to-commit-aggravated-discharge-of-a-firearm charges
       because the State had sufficient knowledge of the facts at the time of the initial investigation
       into Gonzalez’s murder. Effectively, then, the State argues that, because the record
       completely contradicts defendant’s allegations in his postconviction petition, defendant’s
       legal theory is indisputably meritless. We disagree.

                                                 -19-
¶ 85       We note that, at the first-stage, a postconviction petition’s allegations are to be liberally
       construed and taken as true. People v. Hommerson, 2013 IL App (2d) 110805, ¶ 7. In
       addition, the court may not engage in fact finding. Id. Further, while the record contains
       information contrary to defendant’s theory of the case, it also contains information
       supporting it. In other words, considering the petition and the record together demonstrates
       the existence of a factual issue. Because the court cannot engage in factual determination in
       the first stage (id.), it is appropriate to pass to the second stage. Stated another way, the
       record does not completely contradict the allegations of the petition, so we cannot say that
       defendant’s legal theory of the case is indisputably meritless. See Hodges, 234 Ill. 2d at 16.
¶ 86       Finally, when boiled down, defendant is asking what the State knew and when the State
       knew it. The answers to these questions require factual determination, which is precisely
       what should not be done during the first stage of postconviction review. Hommerson, 2013
       IL App (2d) 110805, ¶ 7. Thus, we hold that the trial court erred in dismissing defendant’s
       postconviction petition in the first stage of its review. We further emphasize that, despite our
       holding, we express no opinion as to the actual merits of defendant’s petition, only that it
       should be advanced to the second stage of postconviction review.
¶ 87       Defendant also alleged that his attorneys offered him constitutionally ineffective
       representation. We cannot provide a determination on this issue at this time. We have found
       a factual issue regarding the substantive issue of whether the State had the necessary
       knowledge to prosecute defendant for Gonzalez’s murder in 1991. This determination will
       drive the result on the ineffectiveness claim: if the State had sufficient knowledge, then a
       motion to dismiss should have been filed and likely would have succeeded, leading to the
       conclusion that defendant’s counsel was ineffective (see People v. Boyd, 363 Ill. App. 3d
       1027, 1036 (2006) (in that case, there was “no dispute that the prosecutor knew of the facts
       underlying the home invasion counts on the date [the] defendant was arrested on the original
       charges and that the additional charges arose from the same facts as the original charges”));
       on the other hand, if the State did not have sufficient knowledge until gang members began
       to cooperate with the authorities, then a motion to dismiss would not have been successful,
       leading to the conclusion that defendant’s counsel was not ineffective, because there could
       not have been any prejudice to defendant. See People v. Williams, 2012 IL App (1st) 100126,
       ¶ 26 (to prevail on a claim of ineffective assistance, a defendant must show objectively
       deficient representation and prejudice arising from the deficient representation; and the court
       may dispose of the claim if the defendant is unable to demonstrate that either requirement
       has been satisfied). Thus, we need not consider defendant’s arguments further. We therefore
       reverse the trial court’s ruling on defendant’s postconviction petition and remand the cause
       for further proceedings consistent with our opinion here.

¶ 88                                    III. CONCLUSION
¶ 89       For the foregoing reasons, the judgment of the circuit court of Kane County is reversed,
       defendant’s sentence is vacated, and the cause is remanded with directions.

¶ 90       Judgment reversed and sentence vacated; cause remanded with directions.

                                                 -20-
