                                     2019 IL App (1st) 152994
                                          No. 1-15-2994
                                    Opinion filed June 20, 2019
                                                                                     Fourth Division
______________________________________________________________________________

                                             IN THE
                                 APPELLATE COURT OF ILLINOIS
                                        FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,                         )    Appeal from the
                                                             )    Circuit Court of
          Plaintiff-Appellee,                                )    Cook County.
                                                             )
     v.                                                      )    No. 00 CR 2316
                                                             )
GERMAINE SHAW,                                               )    Honorable
                                                             )    Mary Margaret Brosnahan,
          Defendant-Appellant.                               )    Judge, presiding.



          JUSTICE McBRIDE delivered the judgment of the court, with opinion.
          Justices Gordon and Ellis concurred in the judgment and opinion.

                                            OPINION

¶1        Defendant Germaine Shaw appeals the trial court’s order granting the State’s motion to

dismiss his postconviction petition for relief filed under the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 et seq. (West 2012)). He contends that the trial court erred in dismissing his

petition because he made a substantial showing of actual innocence when he presented an

affidavit averring that the deceased victim had previously admitted to misidentifying defendant

and had named another man as the offender.
No. 1-15-2994


¶2     The record shows that defendant was charged by information with home invasion and

aggravated criminal sexual assault under case No. 00 CR 2316, and home invasion under case

No. 00 CR 2317, for offenses involving victim M.J., occurring in Chicago on or about December

22, 1999. Defendant was also charged by indictment with home invasion under case No. 00 CR

1799, for a separate offense involving victim Barbara Dooley, occurring in Hoffman Estates,

Illinois, on or about August 4, 1999.

¶3     At a pretrial hearing on March 21, 2002, defendant indicated to the court that he had

decided to enter a guilty plea. However, after hearing the assistant state’s attorney (ASA) recite

the factual bases for the offenses, defendant denied committing them and stated he wanted to go

trial. The trial judge confirmed that defendant did not wish to plead guilty, and continued the

case for hearing on defendant’s motion to suppress statements.

¶4     When the case was back on the court call one week later, defendant asked to address the

court. Defendant apologized for his “indecisiveness about the decision,” and the judge told

defendant that there was “no need to apologize.” Defendant continued:

                       “It’s just that when [the ASA] began, you know, going over the facts of

                the case, it kind of freaked me out because I mean they [were] making me sound

                like a monster, and I assure you [Y]our Honor that I’m no monster. I’m just a

                person that was dealing with controlled substances. And I really don’t even

                remember the incidents in question. But now all of a sudden I hear that she’s

                dead. My biggest regret is that I never got a chance to apologize to her for the

                things I may or may not have committed against her. That I place myself on the

                mercy of the court that you can at least come down to something that’s a little bit

                more reasonable.”

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¶5     The trial judge then stated that, for that acts that occurred, the plea offer was reasonable

and was as low as it could go. “It’s up to you if you wish to do this,” the court continued.

Defendant agreed to plead guilty and the trial judge admonished him that there were “two

informations and one indictment” to which he was pleading guilty. The trial judge meticulously

reviewed the charges for each of the offenses involving both victims, M.J. and Dooley, and

defendant confirmed that he was pleading guilty to those offenses. The judge then reviewed the

possible penalties for the offenses and asked defendant whether, knowing the possible penalties,

he still wished to plead guilty. Defendant indicated that he did.

¶6     The judge then asked defendant if he understood that by pleading guilty, he was giving

up his right to plead not guilty, and to force the State to prove his guilt beyond a reasonable

doubt. Defendant stated that he did. Defendant also acknowledged that he understood the

meaning of “a jury trial” and that he was giving up his right to a jury trial. Defendant executed a

written jury waiver, and agreed that it was his signature on the waiver form. Defendant further

acknowledged that he was giving up his rights to “see and hear all [the] State’s witnesses testify

against [him], *** to have [his] attorney ask questions of those witnesses, *** to present

evidence on [his] own behalf including [his] own testimony, or *** [to] remain silent at trial and

[his] silence would not be used against [him].” Defendant agreed that he was pleading guilty “of

[his] own free will,” that “no one [wa]s forcing [him] to plead guilty” and that he was not “under

the influence of any drugs or alcohol.”

¶7     The ASA then recited the factual basis for defendant’s plea. For “case [Nos.] 00-CR-

2316 and 2317,” the factual basis established that, around midnight on December 22, 1999,

defendant knocked on the door of the victim, 76-year-old M.J., and indicated he needed to make

a phone call. When M.J. allowed him inside, defendant pushed M.J. to the floor and fled from

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the residence with her VCR. Shortly thereafter, defendant returned to M.J.’s residence, knocked

on the door, and identified himself as a police officer. When M.J. opened the door, defendant

forced his way into the residence. Defendant threw M.J. on her bed, and rubbed his penis against

her vagina in an attempt to penetrate her. After several attempts at penetration, defendant stopped

and left the residence with M.J.’s television. M.J. suffered cuts and bruises from the attacks. She

identified defendant in a lineup, and defendant later confessed to the police and an ASA, and

signed a written confession.

¶8      For case No. 00 CR 1799, the ASA stated that the evidence would show that defendant

pushed his way into the Hoffman Estates home of 48-year-old Barbara Dooley, “held a sharp

pronged tool and took Ms. Dooley’s car and money from her.” Defendant was arrested driving

Dooley’s car, was identified in a lineup, and gave a handwritten statement.

¶9      Defense counsel “agree[d] that would be the testimony,” and the trial judge accepted

defendant’s guilty plea. Defendant was then sentenced according to the plea agreement, to 28

years’ imprisonment for aggravated criminal sexual assault and 6 years’ imprisonment for home

invasion against M.J. in case No. 00 CR 2316, to be served consecutively, and to 6 years’

imprisonment for each home invasion offense in case Nos. 11 CR 2317 and 00 CR 1799 (against

M.J. and Dooley, respectively), to be served concurrently with the sentences in case No. 00 CR

2316.

¶ 10    Defendant did not file a direct appeal and instead filed a pro se motion to withdraw his

plea three years later in 2005. He argued he was taking psychotropic drugs during the

proceedings and that defense counsel was ineffective for failing to request a fitness examination.

The trial court denied defendant’s motion because it was not filed within 30 days of sentencing.



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On appeal from that order, this court granted counsel’s motion to withdraw and dismissed the

appeal. See People v. Shaw, No. 1-05-2073 (Feb. 27, 2006) (order).

¶ 11      On August 7, 2007, defendant filed in the trial court a pro se motion to reconsider or

reduce his sentence, arguing that his sentence should be reduced because his “DNA was not

found in the sexual assault.” The court denied his motion to reconsider. On February 1, 2010,

defendant filed a section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West

2010)), asserting that mandatory supervised release (MSR) terms are unconstitutional and his

sentence was void because he was not informed of the MSR term. The trial court dismissed his

petition. 1

¶ 12      On February 28, 2013, defendant filed a pro se postconviction petition under the Act,

arguing that (1) police officers brutalized him until he signed a “false confession,” (2) his

attorney was ineffective for threatening to withdraw as counsel unless he pleaded guilty, and his

plea was therefore involuntary, and (3) newly discovered evidence supported his claim of actual

innocence. Specifically, defendant alleged that in February 2013, Andrew Coe informed him that

M.J. admitted to Coe that she identified the wrong person as her attacker.

¶ 13      In support of his petition, defendant attached a notarized affidavit from Coe, dated

February 19, 2013. Coe averred that, on December 23, 1999, his grandmother’s friend, M.J., told

him that she had been “assaulted and strong armed of several belongings” by “Anthony

Benjamin,” whom she previously paid to do work around her house. M.J. told Coe that, after the

incident, she was transported to the police department and “coerced to pick some gentlem[a]n


1
    Defendant may have filed a second section 2-1401 petition, but the record is unclear on this point.

Regardless, that petition is not at issue in the instant case.


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out of a lineup that she never saw or knew,” and the officers forced her to pick someone who

“wasn’t the perpetrator.” Coe further averred that M.J. “express[ed] grief” for defendant but her

family pressured her not to “correct the mistake.” Coe intentionally avoided involvement in

defendant’s case but eventually decided to “come forward” because he felt it was his “duty as a

born again Christian to seek justice for both victims.” Coe learned defendant’s name by sitting in

the court hearings on this matter, was “sure” that M.J. would “proudly attest that all the

information in [his] affidavit is 100% true if she’s called to testify,” and asserted that M.J. “is

just being pressured by her family not to [testify] so [Coe is] her voice.”

¶ 14     Defendant also attached his own notarized affidavit. He averred that, after being arrested

on December 22, 1999, two police officers “smacked, punched [him] in the face and kicked

[him] in the genitals” and threatened to have him stabbed in Cook County jail if he reported the

incident. The officers, whose names he did not remember, instructed him to sign a statement

drafted by an ASA, and he signed it because he feared for his life. Defendant further averred that,

in March 2002, his attorney threatened to withdraw if he did not plead guilty. She told defendant

that he “had no choice or defense and that if [defendant] proceeded to trial that [he] was going to

lose.”

¶ 15     The trial court advanced defendant’s petition and appointed the public defender’s office

to represent him. On April 16, 2015, the State filed a motion to dismiss, arguing that defendant’s

postconviction petition was untimely and his actual innocence claim was uncorroborated. The

State further argued that defendant’s claim regarding police brutality was waived when he

pleaded guilty, and he failed to demonstrate ineffective assistance of counsel where his plea was

knowing and voluntary.



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¶ 16   Following arguments, the court granted the State’s motion to dismiss defendant’s

petition. The court found that defendant’s coerced confession claim was untimely under the Act

and, in any event, he waived the claim by pleading guilty. Further, the court concluded that

defendant’s ineffective assistance of counsel claim was also untimely and rebutted by the record,

which showed he pled guilty of his own free will. Finally, the court found that defendant failed

to make a substantial showing of a constitutional violation based on actual innocence because the

newly discovered evidence set forth in his petition was inadmissible hearsay and, therefore,

would not change the result of a trial. This appeal followed.

¶ 17   On appeal, defendant does not challenge the trial court’s dismissal of his claims relating

to his confession and plea due to ineffective assistance of trial counsel. Rather, he contends only

that the trial court erred by dismissing his petition where he made a substantial showing of actual

innocence by attaching Coe’s affidavit, which alleged that M.J. admitted to falsely identifying

defendant as the offender.

¶ 18   The Act provides for a three-stage process by which a defendant may assert that his

conviction was the result of a substantial denial of his constitutional rights. People v. Beaman,

229 Ill. 2d 56, 71 (2008). At the first stage, the trial court must review the postconviction petition

and determine whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-

2.1(a)(2) (West 2012). If the petition is not dismissed within 90 days at the first stage, counsel is

appointed and the petition advances to the second stage. Id. § 122-2.1(a), (b).

¶ 19   The instant case involves the second stage of postconviction proceedings, during which

the dismissal of a petition is warranted only when the allegations in the petition, liberally

construed in light of the original trial record, fail to make a substantial showing of a

constitutional violation. People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, “all well-

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pleaded facts that are not positively rebutted by the trial record are to be taken as true.” People v.

Pendleton, 223 Ill. 2d 458, 473 (2006). The defendant “bears the burden of making a substantial

showing of a constitutional violation.” Id. We review de novo the trial court’s dismissal of

defendant’s postconviction petition without an evidentiary hearing. Pendleton, 223 Ill. 2d at 473.

¶ 20   To succeed on a claim of actual innocence, a petitioner must present evidence that is (1)

newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that it

would probably change the result on retrial. Coleman, 2013 IL 113307, ¶ 96. Evidence is newly

discovered if it was discovered after trial and the defendant could not have discovered it sooner

through due diligence. People v. Ortiz, 235 Ill. 2d 319, 334 (2009).

¶ 21   Initially, we note that this case presents a unique situation, different from the more typical

postconviction petition following a defendant’s conviction after a trial. Here, defendant did not

have a trial on the charges, and instead chose to plead guilty. Accordingly, we do not have a trial

record against which to compare defendant’s proffered evidence. Moreover, defendant did not

plead guilty to a single offense, but he pleaded guilty in a single plea agreement to three charging

instruments involving two different victims. However, defendant’s proffered evidence in his

postconviction petition relates only to the offenses against one victim—M.J.—and he makes no

argument regarding his innocence of the offense involving the other victim—Dooley.

¶ 22   Based on the above and following oral argument in this case, this court entered an order

directing the parties to file supplemental briefs regarding two issues: (1) the impact, if any, of the

fact that defendant pleaded guilty to multiple offenses involving two victims, where his

postconviction actual innocence claim relates only to offenses against one of the two victims;

and (2) what this court should consider in determining whether proffered evidence meets the test



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for actual innocence when a defendant makes a postconviction actual innocence claim following

a pretrial guilty plea, and accordingly, no trial record or evidence exists.

¶ 23   In defendant’s supplemental brief, he contends that this court should review his actual

innocence claim regarding M.J., “separate and apart” from the case involving Dooley. In his

reply brief, he acknowledges that if he prevails after an evidentiary hearing, his guilty plea in the

Dooley case will have to be vacated, and he contends that the court could proceed in any of the

following ways: “(1) the parties leave the guilty plea and sentence untouched, or (2) they

renegotiate the sentence and, if negotiations fail, (3) [defendant] withdraws his guilty plea and

the case is set for trial.” The State responds that the stipulated factual bases for the offenses

against both victims should be considered in evaluating defendant’s actual innocence claim, and

that the guilty pleas “must rise and fall together as part of a single, non-severable plea

agreement.” The State asserts, however, that the fact that he pleaded guilty in the separate case

“does not impact this Court’s ability to address his claim of actual innocence in the M.J. cases.”

In reply, defendant argues that the factual basis of the crime against Dooley should not be

considered because it is speculative whether such evidence would be admissible at trial, and his

involvement in another offense would go to his credibility, which is not an appropriate

consideration at the second stage of postconviction proceedings.

¶ 24   Regarding the import of the lack of a trial record due to defendant’s guilty plea,

defendant asserts that this court should consider the allegations in his petition against the record

of his guilty plea, particularly the factual basis offered by the State and the report of proceedings.

The State initially contends that this court should not consider defendant’s actual innocence

claim at all, since it does not involve a claim that his plea was coerced. Alternatively, the State



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contends that we should look to the entire record, including the factual bases offered by the State

for each offense and defendant’s confessions, when evaluating his actual innocence claim.

¶ 25     In this case, defendant argued that his plea was involuntary in his petition, but he does not

challenge the validity of his plea on appeal. In his brief, he asserts that his petition’s claims

regarding his confession and plea demonstrate that the record does not rebut his allegation that

someone else committed the offenses, but argues only that newly discovered evidence in the

form of Coe’s affidavit supports an actual innocence claim. Thus, the voluntariness of

defendant’s plea is not at issue because he abandoned that claim on appeal, and we therefore

presume that his plea was valid. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (“Points not argued are

waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).

Because defendant failed to challenge the voluntariness of his plea on appeal, he has

procedurally forfeited review of this argument, and we thus turn to defendant’s actual innocence

claim.

¶ 26     However, before evaluating defendant’s claim on appeal, this court must distinguish

between two forms of actual innocence claims: a gateway claim of actual innocence with an

underlying constitutional challenge, and a freestanding claim of actual innocence that is itself the

substantive basis for relief.

¶ 27     In the federal system, a habeas petitioner may overcome a procedural bar to habeas

review by bringing a gateway claim of actual innocence such that the petitioner may obtain

review of the underlying constitutional merits of his or her procedurally defaulted claim. Herrera

v. Collins, 506 U.S. 390, 404 (1993). The United States Supreme Court has defined a petitioner’s

gateway claim of actual innocence as “ ‘not itself a constitutional claim, but instead a gateway

through which a habeas petitioner must pass to have his otherwise barred constitutional claim

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considered on the merits.’ ” Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera, 506

U.S. at 404). The petitioner’s claim of actual innocence is not itself a basis for a court to vacate

his conviction; rather, the claim of actual innocence depends on the validity of his underlying

constitutional claims. See id.

¶ 28   In Schlup, the United States Supreme Court held that a petitioner asserting a gateway

claim must demonstrate that in light of all the evidence, including the new evidence, “it is more

likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.” Id. at 327. This more-likely-than-not standard “ensures that petitioner’s case is truly

‘extraordinary,’ [citation] while still providing petitioner a meaningful avenue by which to avoid

a manifest injustice.” Id. (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).

¶ 29   By contrast, a number of states, including Illinois, acknowledge freestanding claims of

actual innocence. See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri,

163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against

infliction of cruel and unusual punishment in the New Mexico Constitution protects actually

innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.”

Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of

punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the

punishment is indeed grossly out of proportion to the severity of the crime.”).

¶ 30   In People v. Washington, 171 Ill. 2d 475, 480 (1996), the Illinois Supreme Court

considered a petitioner’s freestanding claim of actual innocence following a murder conviction,

to determine whether an “Illinois constitutional right is implicated in such a freestanding claim of

innocence, since Post-Conviction Hearing Act relief is limited to constitutional claims.” Our

supreme court acknowledged that the United States Supreme Court found that a freestanding

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claim of innocence was “not cognizable as a fourteenth amendment due process claim” under the

United States Constitution (id. at 485), but concluded that the Illinois Constitution required

“additional process be afforded in Illinois when newly discovered evidence indicates that a

convicted person is actually innocent” “as a matter of both procedural and substantive due

process” (id. at 487). The supreme court found, “[i]n terms of procedural due process, *** that to

ignore such a claim would be fundamentally unfair” and “[i]mprisonment of the innocent would

also be so conscience shocking as to trigger operation of substantive due process.” Id. at 487-88.

¶ 31      The Illinois Supreme Court explained:

                        “The [United States] Supreme Court rejected substantive due process as a

                 means to recognize freestanding innocence claims because of the idea that a

                 person convicted in a constitutionally fair trial must be viewed as guilty. That

                 made it impossible for such a person to claim that he, an innocent person, was

                 unfairly convicted.

                        We think that the Court overlooked that a ‘truly persuasive demonstration

                 of innocence’ would, in hindsight, undermine the legal construct precluding a

                 substantive due process analysis. The stronger the claim—the more likely it is that

                 a convicted person is actually innocent—the weaker is the legal construct

                 dictating that the person be viewed as guilty. A ‘truly persuasive demonstration of

                 innocence’ would effectively reduce the idea to legal fiction.” Id. at 488.

¶ 32      Despite Illinois generally recognizing freestanding claims of actual innocence, Illinois

courts—and indeed, other courts throughout the country—have struggled with whether to

recognize, and how to evaluate, such claims of actual innocence after a defendant has pleaded

guilty.

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¶ 33   Some Illinois courts have expressed doubt as to whether a freestanding actual innocence

claim may be brought after a valid and voluntary guilty plea, presuming that in order to proceed

on such a claim, a defendant must challenge the knowing and voluntary nature of the plea. In

People v. Barnslater, 373 Ill. App. 3d 512, 527 (2007), the appellate court initially found that the

defendant failed to make a conclusive showing of his actual innocence on the merits. Later

however, the court noted that—although not briefed or argued by the parties—the court “strongly

question[ed] whether a claim for relief under the Post-Conviction Hearing Act premised upon

newly discovered evidence of actual innocence can suffice to raise a cognizable constitutional

deprivation where the challenged conviction was entered pursuant to a plea of guilty.” The court

stated that where a defendant claims his plea was coerced, that coercion constitutes the

constitutional deprivation required to obtain postconviction relief; a defendant’s claim of actual

innocence after a prior admission of guilt does not. See also People v. Simmons, 388 Ill. App. 3d

599, 614 (2009) (noting that courts have “expressed our doubt as to whether a defendant who

pleads guilty may even legitimately assert a postconviction claim of ‘actual innocence.’ ” ).

¶ 34   Other Illinois courts, however, have found actual innocence claims to be cognizable

under the Act, after a guilty plea. In People v. Knight, 405 Ill. App. 3d 461, 471-72 (2010), the

third district appellate court reversed the summary dismissal of the defendant’s second

postconviction petition alleging new evidence of actual innocence. The court specifically held

that the “defendant can raise his freestanding claim of actual innocence in postconviction

proceedings” and that “[d]efendant’s guilty plea does not prohibit him from raising [such a]

claim in postconviction proceedings.”

¶ 35   Our supreme court has not yet spoken on the issue, and, until very recently, no Illinois

court had found such claims to be categorically barred.

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¶ 36   In March 2019, however, one fourth district appellate panel has concluded that a

defendant’s prior guilty plea barred him from raising an actual innocence claim. In People v.

Reed, 2019 IL App (4th) 170090, the fourth district court concluded that a defendant remains

bound by his guilty plea, and a claim of actual innocence cannot be entertained, where the

validity of the guilty plea is undisputed on appeal. We will more fully analyze the fourth district

court’s decision in Reed later in this opinion.

¶ 37   Some courts in our sister jurisdictions have rejected freestanding claims of actual

innocence where a petitioner has pleaded guilty. See, e.g., Williams v. State, 2017 Ark. 313, at 4,

530 S.W.3d 844 (“Williams’s argument that he is actually innocent of the offense to which he

pleaded guilty does not establish a ground for the writ because it constitutes a direct attack on the

judgment.”); Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008) (rejecting an actual innocence

claim, noting the difficulty in “harmoniz[ing] th[e] new position taken by the defendant with the

fact that he originally admitted to committing the crime by his guilty plea,” given that “[b]oth his

confession and his new claims cannot be true,” and stating that “[a] plea of guilty thus forecloses

a post-conviction challenge to the facts adjudicated by the trial court’s acceptance of the guilty

plea and resulting conviction”); Woods v. State, 379 P.3d 1134, 1142 (Kan. Ct. App. 2016)

(stating that a claim of actual innocence is “insufficient to override the longstanding rule that a

freely and voluntarily entered guilty plea bars a collateral attack on the sufficiency of the

evidence”); Yonga v. State, 130 A.3d 486, 492 (Md. 2016) (concluding “that a person who has

pled guilty may not later avail himself or herself of the relief afforded by the Petition for a Writ

of Actual Innocence”).

¶ 38   The highest court in New York recently reversed an appellate decision recognizing an

actual innocence claim by a defendant who had pleaded guilty, holding that “in the absence of a

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motion to withdraw the plea or to bring a postconviction motion to vacate the plea as

involuntary, the plea and the resulting conviction *** are presumptively voluntary, valid and not

otherwise subject to collateral attack.” (Internal quotation marks omitted.) People v. Tiger, No.

62, 2018 WL 2974466, at *5 (N.Y. June 14, 2018). The court observed that “there are significant

public policy reasons for upholding plea agreements, including conserving judicial resources and

providing finality in criminal proceedings,” before concluding that “[a]llowing a collateral attack

on a guilty plea obtained in a judicial proceeding that comported with all of the requisite

constitutional protections on the basis of a delayed claim of actual innocence would be

inconsistent with our jurisprudence and would effectively defeat the finality that attends a

constitutionally obtained guilty plea.” Id.

¶ 39   The New York high court also described a state statute added by the state legislature in

2012, which allowed “a specific form of newly discovered evidence—DNA evidence—as a basis

to collaterally attack a guilty plea at the postconviction stage.” Id. at *4. The court explained that

this “narrow exception for new DNA evidence as a basis to vacate a conviction in plea cases”

was “undoubtedly due to the recognition of the exceptional nature of DNA evidence as a reliable

scientific tool to conclusively determine the identity of an assailant.” The court concluded that

the legislature did not “contemplate a separate constitutional claim to vacate a guilty plea based

on new evidence as to guilt or innocence” and that the legislative purpose was to “adhere to the

principle that a voluntary and solemn admission of guilt in a judicial proceeding is not cast aside

in a collateral motion for a new factual determination of the evidence of guilt.” Id.

¶ 40   Courts in other states, however, have permitted freestanding claims of actual innocence

despite a petitioner’s guilty plea. These courts have noted that courts should “give great respect

to knowing, voluntary, and intelligent pleas of guilty”; however, courts “should not foreclose

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relief because a defendant pleaded guilty when the policy behind granting relief on a bare

innocence claim is the same.” Ex parte Tuley, 109 S.W.3d 388, 391-93 (Tex. Crim. App. 2002)

(“we will not preclude actual innocence claims because the conviction was the result of a guilty

plea”); People v. Schneider, 25 P.3d 755, 760-61 (Colo. 2001) (en banc) (Concluding that

prohibiting actual innocence claims following guilty pleas claims was not supported by the

relevant Colorado Rule of Criminal Procedure, and that it would not “represent[ ] the just and

fair outcome.” The Colorado court “recognize[d] that defendants do choose to enter guilty pleas

for reasons other than clear guilt,” although it “hasten[ed] to add that the court system must treat

such pleas as final for most purposes.”).

¶ 41   Most recently, the Supreme Court of Iowa considered this issue and concluded that the

Iowa Constitution permits freestanding actual innocence claims to applicants for postconviction

relief “even though they entered [guilty] pleas knowingly and voluntarily,” overruling a line of

cases “holding that defendants may only attack the intrinsic nature—the voluntary and intelligent

character—of their pleas.” Schmidt, 909 N.W.2d at 781.

¶ 42   The Iowa high court noted that innocent defendants may choose to plead guilty for a

variety of reasons, explaining that when “ ‘the deal is good enough, it is rational to refuse to roll

the dice, regardless of whether one believes the evidence establishes guilt beyond a reasonable

doubt, and regardless of whether one is factually innocent.’ ” Id. at 787 (quoting Rhoades v.

State, 880 N.W.2d 431, 436-38 (Iowa 2016)). The court further stated that

“[p]leading guilty does not automatically mean the defendant is actually guilty.

Sometimes, an innocent defendant is choosing the lesser of two evils: pleading

guilty despite his or her actual innocence because the odds are stacked up against



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                him or her, or going to trial with the risk of losing and the prospect of receiving a

                harsher sentence.” (Emphasis in original) Id. at 788.

¶ 43   After noting that pleading guilty does not necessarily exclude an individual’s actual

innocence, the Supreme Court of Iowa concluded that an “innocent person has a constitutional

liberty interest in remaining free from undeserved punishment” and that holding “a person who

has committed no crime in prison strikes the very essence of the constitutional guarantee of

substantive due process.” Id. at 793.

¶ 44   After careful consideration, we conclude that a freestanding actual innocence claim may

be brought after a guilty plea, and that a defendant need not challenge the knowing and voluntary

nature of his or her plea to bring such a claim. The wrongful imprisonment of an innocent person

violates procedural and substantive due process under the Illinois Constitution and, thus, a

freestanding claim of actual innocence is cognizable under the Act. See Washington, 171 Ill. 2d

at 487-89 (“In terms of procedural due process, we believe that to ignore such a claim [of actual

innocence] would be fundamentally unfair. [Citations.] Imprisonment of the innocent would also

be so conscience shocking as to trigger operation of substantive due process.”).

¶ 45   As our supreme court has stated, “no person convicted of a crime should be deprived of

life or liberty given compelling evidence of actual innocence.” (Emphasis added). Id. at 489. In

so holding, our supreme court made no distinction between defendants whose convictions arise

out of a trial or out of a guilty plea, and we believe that such a tenet applies equally in either

circumstance. Our supreme court recognized in Washington that “a ‘truly persuasive

demonstration of innocence’ would, in hindsight, undermine the legal construct precluding a

substantive due process analysis” and “would effectively reduce the idea [that the person be

viewed as guilty] to legal fiction.” Id. at 488. We find no reason to categorically preclude

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individuals from similarly presenting “ ‘truly persuasive demonstration[s] of innocence,’ ”

(emphasis added) (id.) merely because their convictions arose from guilty pleas.

¶ 46   As courts in other jurisdictions have recognized, there can be no doubt that there are

some circumstances in which individuals who are actually innocent may, voluntarily, choose to

plead guilty. Regardless of guilt or innocence, some individuals may choose to accept a guilty

plea rather than face the uncertainty of a trial. See Tuley, 109 S.W.3d at 393 (“The guilty plea

process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation.

The decision to plead guilty, as we have seen in this case, may be influenced by factors that have

nothing to do with the defendant’s guilt. The inability to disprove the State’s case, the inability to

afford counsel, the inability to afford bail, family obligations, the need to return to work, and

other considerations may influence a defendant’s choice to plead guilty or go to trial.”); Schmidt,

909 N.W.2d at 787 (“Simply put, in economic terms, defendants engage in a cost-benefit

analysis [when deciding whether to enter a guilty plea]. Entering into a plea agreement is not

only rational but also more attractive than dealing with the uncertainty of the trial process and the

possibility of harsher sentences.” When the plea deal is good enough, “ ‘it is rational to refuse to

roll the dice, regardless of whether one believes the evidence establishes guilt beyond a

reasonable doubt, and regardless of whether one is factually innocent.’ ”). Because a valid guilty

plea does not necessarily preclude a petitioner’s actual innocence, we see no reason to continue

to confine that person, over evidence that would conclusively establish his innocence.

¶ 47   As stated previously, one court in Illinois has rejected such a conclusion, finding that a

defendant’s prior guilty plea bars him from later raising an actual innocence claim. Reed, 2019

IL App (4th) 170090.



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¶ 48   In so holding, the court in Reed relied on our supreme court’s decision in People v.

Cannon, 46 Ill. 2d 319, 321 (1970), specifically referencing a sentence noting that the

defendant’s claim “cannot be entertained” in light of the “full[] and careful[] admonish[ment]”

prior to his guilty plea. The fourth district court recognized that the passage it relied on was

“obiter dictum, an inessential remark on a point not argued by counsel,” but contended that the

court was bound to follow obiter dictum of the supreme court, unless there was a contrary

supreme court decision.   Reed, 2019 IL App (4th) 170090, ¶¶ 18-21.

¶ 49    We initially note that the court in Reed is only the third court to cite Cannon for any

purpose, since its publication almost 50 years ago, and no case, other than Reed, has read

Cannon to create such a categorical bar.

¶ 50   Nonetheless, in the five-paragraph-long opinion in Cannon, the supreme court noted that

the defendant entered a guilty plea to indecent liberties with a child, and was sentenced to a term

of “not less than four nor more than ten years.” Cannon, 46 Ill. 2d at 320. Thereafter, the

defendant filed a postconviction petition, which was denied. The court then stated that the “only

one of the defendant’s contentions that has been argued in this court concerns the legality of the

election of the board of supervisors of De Witt County under the one-man, one-vote principle,”

before finding that contention to be “without merit.” Id.

¶ 51   The court then made an aside remark that it had also examined the other claims that were

included in his postconviction petition, but that were not argued before the court. The court

described those claims as amounting to an “unsupported assertion that the accusation against him

was false” and that the victims’ stories were coerced. Id. at 321. The court then noted that

“[b]efore his plea of guilty was accepted, the defendant, represented by appointed counsel, was

fully and carefully admonished by the trial judge, and in the light of that admonition, the

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defendant’s present claim cannot be entertained.” Id. It is this line from which the court in Reed

concludes that the supreme court has suggested that there exists a categorical bar on raising an

actual innocence claim after a guilty plea.

¶ 52   In addition to the line relied on by the court in Reed being obiter dictum, it is this court’s

opinion that the statement is too imprecise to create such a significant new rule. We also note

that the court in Cannon described the defendant’s postconviction claims as unsupported, and it

was in that context, as well as the defendant’s guilty plea, in which the supreme court found that

his claim could not be entertained. Particularly in light of our supreme court’s relatively more

recent statements in Washington, 171 Ill. 2d at 489, that “no person convicted of a crime should

be deprived of life or liberty given compelling evidence of actual innocence,” we do not believe

that we can read Cannon to express the supreme court’s explicit intention to prohibit actual

innocence claims following guilty pleas in all circumstances.

¶ 53   Moreover, we note that the court in Reed neglected to consider another recent legal

development, namely the legislature’s 2014 amendment to section 116-3 of the Code, which

allows a defendant to make a motion in the circuit court for “fingerprint, Integrated Ballistic

Identification System, or forensic DNA testing *** on evidence that was secured in relation to

the trial or guilty plea which resulted in his or her conviction.” (Emphasis added). 725 ILCS

5/116-3 (West 2014). This statute shows the legislature’s recent recognition that evidence which

can be used to prove a person’s innocence can arise either after a trial, or after a guilty plea.

Particularly in light of this statute, we believe that the holding in Reed would lead to unintended

consequences, in that a defendant who had previously pleaded guilty could move for, and

receive, conclusive evidence of his innocence from forensic testing, but be foreclosed from

instituting a postconviction proceeding to raise such a claim.

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¶ 54   Accordingly, we disagree with the analysis in Reed, and find that a defendant may bring

an actual innocence claim after a guilty plea, without challenging the validity of the plea.

¶ 55   That being said, however, it is important to create a workable standard to analyze actual

innocence claims following guilty pleas in order to balance the interest in ensuring that

individuals who are actually innocent are not unjustly imprisoned, with the interest in upholding

the finality and solemnity of guilty pleas. To serve these interests, other jurisdictions that allow

freestanding actual innocence claims after guilty pleas require that an individual bringing an

actual innocence claim after a guilty plea meet a higher burden than is required for those

bringing such claims after a trial. See e.g., Schneider, 25 P.3d at 761-62 (“A defendant who

voluntarily and knowingly enters a plea accepting responsibility for the charges is properly held

to a higher burden in demonstrating to the court that newly discovered evidence should allow

him to withdraw that plea.”).

¶ 56   These jurisdictions employ varying standards in analyzing actual innocence claims after

guilty pleas. See Jamison v. State, 765 S.E.2d 123, 129-30 (S.C. 2014) (Holding that a

defendant’s guilty plea does not preclude postconviction relief, but that “a valid guilty plea must

be treated as final in the vast majority of cases.” Accordingly, when an “applicant seeks relief on

the basis of newly discovered evidence following a guilty plea, relief is appropriate only where

the applicant presents evidence showing that (1) the newly discovered evidence was discovered

after the entry of the plea and, in the exercise of reasonable diligence, could not have been

discovered prior to the entry of the plea; and (2) the newly discovered evidence is of such a

weight and quality that, under the facts and circumstances of that particular case, the ‘interest of

justice’ requires the applicant’s guilty plea to be vacated. In other words, a [postconviction-

relief] applicant may successfully disavow his or her guilty plea only where the interests of

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No. 1-15-2994


justice outweigh the waiver and solemn admission of guilt encompassed in a plea of guilty and

the compelling interests in maintaining the finality of guilty-plea convictions.”); In re Bell, 170

P.3d 153, 157 (Cal. 2007) (requiring applicants to show that the new evidence “ ‘undermine[s]

the entire prosecution case and point[s] unerringly to innocence or reduced culpability’ ”

(internal quotation marks omitted)); Schneider, 25 P.3d at 761–62 (requiring defendant to show

that in light of the new evidence, “the charges that the People filed against the defendant, or the

charge(s) to which the defendant pleaded guilty were actually false or unfounded”).

¶ 57   Other states require a defendant to meet a higher standard when bringing a freestanding,

rather than a gateway, claim of actual innocence, but do not differentiate between claims brought

after a trial or after a plea. These states generally employ a “clear and convincing” standard,

under which a petitioner making a freestanding actual innocence claim must show by clear and

convincing evidence that no reasonable juror would have convicted him in light of the new

evidence. See Tuley, 109 S.W.3d at 392, 397 (requiring that the defendant establish by clear and

convincing evidence that no rational jury would convict the applicant in light of the new

evidence); Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (en banc); Schmidt,

909 N.W.2d at 797 (holding that freestanding actual innocence claims were available to

applicants even after a guilty plea, and that to succeed on such a claim, “the applicant must show

by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no

reasonable fact finder could convict the applicant of the crimes for which the sentencing court

found the applicant guilty in light of all the evidence, including the newly discovered evidence”);

State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of

proof for a habeas claim based upon a freestanding claim of actual innocence should strike a

balance between these competing standards and require the petitioner to make a clear and

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No. 1-15-2994


convincing showing of actual innocence that undermines confidence in the correctness of the

judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y. Crim. Ct. 2003); Miller v. State, 2014

UT App 280, ¶ 6, 340 P.3d 795 (per curiam); see also Miller v. Commissioner of Correction, 700

A.2d 1108, 1130-31 (Conn. 1997) (adopting a clear and convincing standard and also requiring

the petitioner to show that “no reasonable fact finder would find the petitioner guilty”).

¶ 58   After recognizing that a defendant who pleaded guilty could raise an actual innocence

claim, the Colorado Supreme Court in Schneider explained that it had previously “only

articulated the standard applicable to the determination of when a defendant who has been

convicted at trial may seek a new trial based upon newly discovered evidence.” (Emphasis

added.) Schneider, 25 P.3d at 761. Specifically, in People v. Gutierrez, 622 P.2d 547, 559-60

(Colo. 1981) (en banc), the Colorado Supreme Court had determined that a defendant claiming

actual innocence after a trial conviction is required to show

                “ ‘ “that the evidence was discovered after the trial; that defendant and his counsel

                exercised diligence to discover all possible evidence favorable to the defendant

                prior to and during the trial; that the newly discovered evidence is material to the

                issues involved, and not merely cumulative or impeaching; and that on retrial . . .

                the newly discovered evidence must be of such a character as to probably bring

                about an acquittal verdict if presented at another trial.” ’ ” Schneider, 25 P.3d at

                761 (quoting Gutierrez, 622 P.2d at 559-60).

¶ 59   The court noted, however, that it had not yet “examined the proper standard for when a

defendant may withdraw a properly entered guilty plea under circumstances of newly discovered

evidence,” and that the Gutierrez test was not appropriate in such circumstances. Id. The court



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No. 1-15-2994


                “distinguish[ed] the circumstances here from those in Gutierrez by noting that

                here, it was not an independent trier of fact that determined the defendant's guilt

                based upon sworn trial testimony—it was the defendant who acknowledged his

                own guilt. Because of that simple fact, the trial court handling the postconviction

                proceeding is necessarily in a different position. That court does not have the full

                record of the prior trial, but it does have the defendant’s own statements of guilt.

                Gutierrez presumes that the trial judge is in a position to weigh the new testimony

                against that provided at the prior trial and assess whether an acquittal verdict

                would enter based upon the new evidence. In the circumstance in which there

                never was a trial on the charges, the trial court is hampered in that assessment.

                Furthermore, there must be some consequence attached to the decision to plead

                guilty. A defendant who voluntarily and knowingly enters a plea accepting

                responsibility for the charges is properly held to a higher burden in demonstrating

                to the court that newly discovered evidence should allow him to withdraw that

                plea. Defendants should be allowed to withdraw properly entered guilty pleas

                only in order to avoid manifest injustice. [Citation.].” Id.

¶ 60   The Colorado court then adopted “a modified standard” for actual innocence claims after

guilty pleas, in which the

                “defendant must present evidence from which the trial court may reasonably

                conclude that: (1) the newly discovered evidence was discovered after the entry of

                the plea, and, in the exercise of reasonable diligence by the defendant and his or

                her counsel, could not have been earlier discovered; (2) the charges that the

                People filed against the defendant, or the charge(s) to which the defendant

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No. 1-15-2994


                   pleaded guilty were actually false or unfounded; and (3) the newly discovered

                   evidence would probably bring about a verdict of acquittal in a trial.” Id., at 761-

                   62.

¶ 61    The court noted that the first and third prongs were essentially taken from the Gutierrez

test, but the second prong was “articulate[d] for the first time in this case.” Id. at 762. Rather than

requiring only that the evidence be “ ‘material to the issues involved, and not merely cumulative

or impeaching,’ ” as in the Gutierrez test after a trial conviction (id. at 761), a defendant claiming

actual innocence after a guilty plea had to meet a stricter standard, showing that the charges

“were actually false or unfounded” (id. at 762). The court held that “this formulation evolves

from the standards set forth by this court in Gutierrez and maintains the appropriate balance

between finality and fundamental fairness.” Id.

¶ 62    As stated above, the Supreme Court of Iowa also concluded that a defendant could raise

an actual innocence claim after a guilty plea; however, the supreme court articulated a different

standard for addressing such claims. The Iowa high court “balance[d] the interest of an innocent

defendant and that of the state” and concluded that “after pleading guilty, applicants claiming

actual innocence must meet the clear and convincing standard,” i.e., “the applicant must show by

clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no

reasonable fact finder could convict the applicant of the crimes for which the sentencing court

found the applicant guilty in light of all the evidence, including the newly discovered evidence.”

Schmidt, 909 N.W.2d at 797. The court found that adopting the clear and convincing standard

“simultaneously vindicate[d]” the principle that “it is far worse to convict an innocent person

than to acquit a guilty one” while “recogniz[ing] the interest of the state in finality of criminal

litigation.” Id.

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¶ 63   Although other jurisdictions have elevated the standard for stating a claim of actual

innocence in cases of guilty pleas, the creation of a new standard in Illinois should come from

the Illinois Supreme Court, which possesses supervisory powers which we, as an appellate court,

lack. See People v. Lyles, 217 Ill. 2d 210, 216 (2005) (citations omitted) (“While the appellate

court may exercise significant powers on review of a criminal case, it does not possess the same

inherent supervisory authority conferred on [the supreme] court by article VI, section 16, of the

Illinois Constitution”). Further, any new elevated standard in this case, would not be outcome

determinative, because we find that defendant has failed to make a substantial showing of a

constitutional violation under current authority.

¶ 64   As stated above, the trial court in this case concluded that defendant had failed to make a

substantial showing of actual innocence because his proposed newly discovered evidence

constituted inadmissible hearsay, and therefore, it would not change the result of a trial. The

supreme court, however, recently adopted and amended Illinois Rule of Evidence 1101, to add

“postconviction hearings” to a list of proceedings to which the rules of evidence—including the

rules against hearsay—“do not apply.” Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). In this appeal,

the State claims, and defendant acknowledges, that Coe’s affidavit consists of hearsay. However,

defendant relies on Rule 1101(b)(3) to claim that because the rules of evidence do not apply, an

evidentiary hearing is still warranted.

¶ 65   Many prior Illinois cases have relied on the general rule that hearsay is insufficient to

support a petition under the Act. See People v. Morales, 339 Ill. App 3d 554, 565 (2003)

(hearsay affidavits are generally insufficient to support postconviction claims); People v.

Salgado, 2016 IL App (1st) 133102, ¶ 47 (affidavits containing only hearsay are generally

insufficient to warrant a third-stage hearing); People v. Gray, 2011 IL App (1st) 091689, ¶ 16

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No. 1-15-2994


(noting that the content of an affidavit was “no more than hearsay, which, as a genral rule, is

insufficient to support a claim” under the Act); People v. Wallace, 2015 IL App (3d) 130489, ¶¶

25, 28 (The affidavit providing that a fellow inmate confessed to shooting the victim while the

inmate and the affiant were incarcerated together was inadmissible hearsay, which could not “be

the basis of a defendant’s postconviction petition.” “Inadmissible hearsay cannot constitute

substantive evidence by any definition.”); People v. Coleman, 2012 IL App (4th) 110463, ¶¶ 54-

55 (concluding that an affidavit supporting a postconviction petition “should consist of factual

propositions to which the affiant could testify in an evidentiary hearing” and where the affidavit

was composed of inadmissible hearsay, the “allegations by themselves did not merit further

proceedings”).

¶ 66   Many of these cases, however, were decided prior to the rule change. Since then, only a

few cases have analyzed Rule 1101 or the interplay of the rule and the requirements to state a

claim of actual innocence under the Act. See People v. Velasco, 2018 IL App (1st) 161683, ¶ 119

(finding that the hearsay affidavits at issue in that case, indicating that a gang member had

bragged to one of the affiants about shooting the victim, were admissible under Rule 1101(b)(3)

and must be taken as true, at the second stage of the proceedings, when determining whether to

advance the petition to a third-stage evidentiary hearing); People v. Gibson, 2018 IL App (1st)

162177, ¶ 138 (finding pursuant to Rule 1101, that a hearing under the Torture Inquiry and

Relief Commission is a “postconviction hearing” to which the Rules of Evidence do not apply);

People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 166-67 (Gordon, J., specially concurring).

¶ 67   We point out that Rule 1101(b)(3) appears to conflict with the requirement that a

postconviction actual innocence claim must be of such a conclusive character that it would

probably change the result on retrial. If a trial judge must determine whether proposed evidence

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No. 1-15-2994


would probably change the result on retrial, that necessarily encompasses a determination of

whether that evidence would be admissible at a retrial. As the trial court acknowledged, if such

evidence would not be admissible in a retrial, it would be impossible for it to change the result.

Despite this apparent conflict, the change to Rule 1101 makes the evidence rules “inapplicable”

to postconviction proceedings, and it was in effect when the trial court considered defendant’s

postconviction petition. The trial court, however, did not have the benefit of any of the cases that

have since considered the change to Rule 1101 at that time, and we will consider the hearsay

affidavit in evaluating defendant’s claim.

¶ 68   Additionally, the parties agree generally that the court should consider the allegations in

his petition against the record of his guilty plea, in particular the factual basis presented at the

guilty plea hearing regarding victim M.J., but they dispute whether the factual basis regarding

the offense against victim Dooley should be considered. The State contends that the evidence of

defendant’s offense against Dooley would likely be admissible at a trial as other crimes

evidence, on retrial based on Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011), which states

generally that evidence of other crimes is not admissible to prove action in conformity therewith,

but that such evidence may “be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Defendant however, claims that the admissibility of such evidence is “speculative,” and thus, the

factual basis involving Dooley should not be considered.

¶ 69   We agree with the State. As we explained above, the supreme court has made the Rules

of Evidence “inapplicable” to postconviction proceedings. See Ill. R. Evid. 1101(b)(3) (eff. Apr.

8, 2013). Importantly, defendant has not challenged the validity of his guilty plea to the charge

against Dooley in any way. Accordingly, we conclude that the entire record, including evidence

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No. 1-15-2994


related to the offense against Dooley, may be considered against the allegations in defendant’s

postconviction petition in determining whether defendant has shown a substantial deprivation of

his constitutional rights to warrant a third stage evidentiary hearing. Nonetheless, even if we

considered only the evidence related to his plea to the offense against M.J., and declined to

consider the evidence regarding Dooley, the result would be the same, as explained below.

¶ 70    Assuming that defendant’s proffered evidence is newly discovered, material, and not

cumulative, it is not of such a conclusive character that it would probably change the result on

retrial—the most important element of an actual innocence claim. Washington, 171 Ill. 2d at 489.

¶ 71    Without engaging in any credibility determinations, the evidence presented here is not of

the character that would support an actual innocence claim. Defendant presents the affidavit of a

non-eyewitness, who avers to a conversation he had with the victim more than 13 years’ before

he inscribed his affidavit. This evidence, in our opinion, is not “compelling evidence,” which

presents a “truly persuasive demonstration of innocence.” Washington, 171 Ill. 2d at 488-89.

¶ 72    Our supreme court has noted that recantation testimony is regarded as inherently

unreliable and a court will not grant a new trial on that basis absent extraordinary circumstances.

People v. Sanders, 2016 IL 118123, ¶ 33; People v. Morgan, 212 Ill. 2d 148, 155 (2004); People

v. Steidl, 142 Ill. 2d 204, 253-54 (1991). Because recantation testimony is “inherently suspect”

and “treated with caution,” it is “not sufficient to require a new trial absent proof the witness’s

earlier testimony was perjured.” People v. Beard, 356 Ill. App. 3d 236, 242 (2005). Although a

determination of the reliability of such evidence is not made at the motion to dismiss stage of

postconviction proceedings (Sanders, 2016 IL 118123, ¶ 33), the proposed evidence here, from

an affiant who claims to have spoken to the now-deceased victim near the time of defendant’s

trial, is not actually recantation evidence.

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¶ 73   Taking the contents of the affidavit as true, specifically that M.J. told Coe that she

misidentified defendant, M.J.’s statement to Coe at most contradicts the record in this appeal.

The record of defendant’s guilty plea shows that defendant entered a valid and voluntary guilty

plea, and that he understood the charges, the penalties, and the rights he was giving up by

pleading guilty. The factual basis for defendant’s plea established that after knocking on M.J.’s

door and indicating he needed to make a phone call, defendant pushed M.J. to the floor and fled

from her residence with her VCR. He returned shortly thereafter, and identified himself as a

police officer before forcing his way into the residence and sexually assaulting M.J. Defendant

then left the residence with M.J.’s television. The record also shows that M.J. identified

defendant in a lineup. Defendant confessed to the police and an assistant State’s Attorney, and

signed a written confession.

¶ 74   Against this strong evidence of guilt, defendant presents the affidavit of Coe, who claims

that he spoke to M.J. in 1999, and that she told him that she had misidentified defendant. At

most, such evidence could merely impeach or contradict the record, which indicates that M.J.

identified defendant as her attacker and that defendant confessed (see Arizona v. Fulminante, 499

U.S. 279, 296 (1991) (internal quotations and citation omitted) (holding that a confession may be

the “most probative and damaging evidence that can be admitted” against a defendant))—and

pleaded guilty—to doing so. See People v. Adams, 2013 IL App (1st) 111081, ¶ 36 (Evidence of

actual innocence “must support total vindication or exoneration, not merely present a reasonable

doubt” as to the petitioner’s guilt.); People v. Collier, 387 Ill. App. 3d 630, 636–37 (2008) (when

evidence merely impeaches or contradicts trial testimony, it is not typically of such conclusive

character as to justify postconviction relief); People v. Ortiz, 235 Ill. 2d 319, 335 (2009)

(impeachment of a prosecution witness is an insufficient basis for granting a new trial). In such

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No. 1-15-2994


circumstances, the proposed evidence is not of such conclusive character that it would probably

change the result on retrial. See Barnslater, 373 Ill. App. 3d at 515-16, 522-23 (the defendant

failed to make a substantial showing of actual innocence when he submitted an affidavit from the

victim who averred that the defendant had not sexually assaulted her and that her mother had

forced her to implicate defendant. The victim’s “recantation affidavit would merely impeach her

stipulated testimony in the factual basis for the plea” and evidence “which merely impeaches a

witness will typically not be of such conclusive character as to justify postconviction relief.”

(Internal quotation marks omitted)); People v. Smith, 177 Ill. 2d 53, 85-86 (1997) (noting that

evidence that the central trial witness who testified against the defendant had told fellow inmates

that the defendant was not involved in the killing did not require a new trial. Such evidence could

show only that the witness “had a bias, interest, or motive to testify falsely” and “would be

admissible only for purposes of impeaching” the witness, which was “an insufficient basis for

granting a new trial.”). Accordingly, we find that defendant has not made a substantial showing

of a constitutional violation to warrant a third stage evidentiary hearing.

¶ 75   For the foregoing reasons, the judgment of the circuit Court of Cook County is affirmed.

¶ 76   Affirmed.




                                                - 31 -
