Monthly Archives: August 2019

Denial of leave to file successive petition reversed where day-for-day eligible 80-year sentence constituted de facto life sentence

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The appellant in People v. Peacock, 2019 IL App (1st) 170308 appealed the trial court’s decision denying leave to file his successive post-conviction petition, on the grounds that his sentence constituted a de facto life sentence and violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The Appellate Court of Illinois First Judicial District ultimately reversed and remanded the decision of the Circuit Court of Cook County for further proceedings.

Appellant Taki Peacock is currently service concurrent respective sentences of 80 years, 30 years, 30 years, and 30 years of imprisonment for convictions related to the 1995 first-degree murder, aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of his victim, Rufus Taylor. At the time of offense, Peacock was 17 years old. Id. at ¶ 1.

On September 12, 2016, appellant filed a successive postconviction petition, in which he challenged the constitutionality of his 80-year sentence, arguing that it was an unconstitutional de facto life sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Appellant was denied leave by the circuit court to file his petition on October 12, 2016, ruling that the petition was untimely, and appellant had failed to file a motion for leave to file the petition. Id. at ¶ 2. This appeal followed.

On appeal, Peacock argued that he should have been permitted to file his petition because the 80-year sentence imposed on his conviction as a juvenile constitutes a de facto life sentence and thus violates the eighth amendment of the US Constitution and the proportionate penalties clause of the Illinois Constitution.  On appeal, Peacock acknowledged that he may qualify for day-to-day credit, and, accordingly, will be required to serve at least 40 years (50%) of his sentence. Peacock argued that his de facto life sentence still triggers the protections of Miller and requires a sentencing court to consider his youth and attendant characteristics in sentencing. Id. at ¶ 3. Peacock argued that the circuit court erred by not doing so and, as a result, thecase should be remanded for a new sentencing hearing.

In response, the State argued that leave was properly denied, and appellant’s sentence does not constitute a de facto life sentence because he was only “likely [to] serve 40 years.” The State points to appellant’s IDOC projected discharge date of August 31, 2035, exactly 40 years from the date he went into custody, as evidence of this fact. Id. at ¶ 4.

This appeal had previously been stayed pending an Illinois Supreme Court decision in People v. Buffer, 2019 IL 122327. Id. at ¶ 5. The Supreme Court has since decided Buffer, allowing for the stay on this case to be lifted.

In Buffer, the Supreme Court held that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.” However, any sentence in excess of 40 years does. Id. at ¶ 11. This determination was made in accordance with previous holdings from Miller, which stated that in order to prevail in similar claims, “a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 7. Following the decision in Buffer, both parties in this appeal were permitted to file supplemental briefs to address the impact of the ruling.

In his brief, Peacock argued that the ruling in Buffer supports his previously stated arguments regarding his sentence. Peacock acknowledged that while there is some confusion regarding explicit 40 year sentences (namely whether or not a sentence of exactly 40 years can be considered a de facto life sentence or not), his sentence should be considered in excess of 40 years because it is not guaranteed that he will serve only 40 years of his sentence, as his sentence is “entirely dependent upon the condition that he will not forfeit even one day one day of good conduct credit.” Id. at ¶ 14.

In its brief, the State contended that appellant’s sentence, having recently had his projected release date shortened by 15 days to August 16, 2035, is now only “39 years, 11 months and 16 days in prison,” which under Buffer cannot be constitute a de facto life sentence. Id. at ¶ 15.

As a result of the Supreme Court’s decision in Buffer, however, the Appellate Court held that Peacock’s 80-year sentence in this case did constitute a de facto life sentence. Id. at ¶ 17. The Court expanded that they need not make a determination regarding de facto life sentences on the dividing line of 40 years (the State’s argument) because the sentence imposed was an 80-year sentence with the “mere possibility of release after 40 years,” not a 40-year sentence. Id. at ¶ 19. The Court also agreed with Peacock’s argument that he’s not guaranteed receipt of day-for-day credit.

The Appellate Court also concluded that the trial court erred in failing to consider Peacock’s youth and his attendant characteristics in imposing his sentence, despite the State’s assertions to the contrary. Id. at ¶ 21. The court stated, in accordance with the Supreme Court, that the attendant characteristics that must be considered at sentencing in order to justify a de facto life sentence are “the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id. at ¶ 22. The Appellate Court held that the trial court’s mere awareness of Peacock’s age and consideration of the PSI was not “the equivalent to a full consideration of those special characteristics” and cannot be considered evidence of such. Id. at ¶ 23-24.

Ultimately, the appellate court held that Peacock’s sentence violated the eighth amendment, vacated the sentence as unconstitutional, reversed the decision of the Circuit Court of Cook County, and remanded for a new sentencing hearing. Id. at ¶ 24-26.

Appellate court reverses dismissal of 2-1401 petition where defendant’s armed habitual criminal conviction was based on a void predicate offense

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The appellant in People v. Barefield, 2019 IL App (3d) 160516 appealed the dismissal of his petition for relief from judgement (filed under section 2-1401 of the Code of Civil Procedure), on the grounds that his conviction for armed habitual criminal should be vacated because the predicate offense, his conviction for aggravated unlawful use of a weapon (AUUW), was void ab initio and should also be vacated. The Appellate Court of Illinois Third District ultimately reversed the dismissal of the petition by the trial court.

Barefield was charged with armed habitual criminal after having twice been convicted of AUUW, Aggravated Robbery, and unlawful use of a weapon by a felon (based on his AUUW convictions). Id. at ¶ 3. Barefield entered a negotiated plea agreement in which he pled guilty to armed habitual criminal in exchange for a sentence of eight years and six months imprisonment and the dismissal of the weapons charge. Id. at ¶ 4. Following the entry of his plea, Barfield filed a pro se petition for relief from judgement under section 2-1401 of the Code, arguing that his conviction (for which he entered a guilty plea) was predicated on AUUW convictions related to a AUUW statute that had been held to be facially unconstitutional. Id. at ¶ 5. As a result, Barefield requested the court vacate his conviction based on the fact that the predicate offenses were void ab initio.

The State filed a motion to dismiss under sections 2-615 and 2-619 of the Code, which argued that Barefield had failed to state a cause of action under section 2-1401, the petition was untimely, and could be rejected based on the Illinois Supreme Court’s decision in People v. McFadden, 2016 IL 117424. Id. at ¶ 6. Barefield filed a motion for leave to amend his petition to include a request that the underlying AUUW convictions be vacated as well, as they were also void ab initio. The trial court granted the State’s motion to dismiss and denied Barefield’s motion for leave to amend the petition. Id. at ¶ 8. Barefield appealed.

In its analysis of the vacatur of the armed habitual criminal conviction, the appellate court held that a conviction for armed habitual criminal must be vacated if the predicate AUUW conviction was entered under an unconstitutional section of the AUUW statute. Id. at ¶ 11. The Criminal Code confirms that a defendant must have been convicted of at least 2 firearm offenses to have committed an armed habitual criminal offense, and, according to People v. Davis,“a defendant’s qualifying prior convictions are an element of the offense of being an armed habitual criminal.” Id. at ¶ 12.

The appellate court confirmed Barefield’s assertion that the Illinois Supreme Court had determined parts of the AUUW statute facially unconstitutional because they violate the second amendment of the United States constitution. Id. at ¶ 13. The court also indicated that the Illinois Supreme Court had overruled the decision in McFadden, cited by the State in response to appellant’s motion, and ruled that “when a statute is found to be facially unconstitutional in Illinois, it is said to be void ab initio; that is, it is as if the law had never been passed.” Id. at ¶ 15. As a result, the court concluded that if Barefield’s AUUW conviction was pursuant to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, then his conviction for armed habitual criminal must be vacated. Id. at ¶ 17.

The Court acknowledged that while Roberson was definitively charged under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, the record was unclear as to whether he was convicted under the same section. As such, the appellate court ruled that the section of the statute under which Barefield was convicted needed to be established definitively. The court remanded the matter to the circuit court for such a determination. Id. at ¶ 18.

On the vacatur of the AUUW Convictions, the court noted that the State conceded that Roberson’s prior AUUW convictions were void ab initio and disagreed with their assertion that Roberson needed to file post-conviction petitions separately in those cases. Id. at¶ 22. The Court cited In re N.G.,2018 IL 121939, “stating under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.” Id. at ¶ 23.

The court ruled that Roberson should be permitted to amend his section 2-1401 petition to seek vacatur of his AUUW convictions in addition to his armed habitual criminal conviction. Id. at ¶ 24. The court remanded the matter to the circuit court for a determination as to whether Roberson was convicted under one of the facially unconstitutional sections of the AUUW statue. Id. at ¶ 25.

The Barefield court ultimately reversed and remanded the decision of the trial court dismissing the section 2-1401 petition and denying Barefield leave to amend the petition, with directions for the circuit court to vacate all convictions, should they be determined to have been entered under one of the facially unconstitutional sections of the AUUW statute. Id. at ¶ 29.

 

 

Petitioner could not show ineffective assistance of counsel for counsel’s failure to share discovery with him

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The appellant in People v. Walker, 2019 IL App (3d) 170374 appealed the decision of the trial court’s order his pro se post-conviction petition on the grounds that the dismissal was erroneous. The Third District ultimately affirmed the decision of the Circuit Court.

Eric D. Walker was charged with and pled guilty to aggravated battery and burglary and was sentenced to three years imprisonment in 2016.

In 2017, Walker filed a pro se post-conviction petition, raising “numerous claims, many of which related to the representation [he] had received.” Id. at ¶ 6. Walker alleged that his attorney, the assistant public defender, conspired against him with the State and intentionally misled and misrepresented him; failed to file motions requested by Walker; failed to seek additionally discovery; refused to speak to his witnesses; and, of most relevance to the appeal, refused to allow him to review the discovery and evidence against him. The petition concluded that had Walker been provided the information the assistant public defender failed to allow him to review, he would not have pled guilty. Id. at ¶ 7. Walker filed substantively similar post-conviction petitions in both the aggravated battery and burglary cases, each of which related to both convictions. The trial court summarily dismissed both petitions as frivolous and patently without merit at the first stage of post-conviction proceedings. Id. at ¶ 1, 10. Walker then appealed.

On appeal, Walker argued that his petition presented an arguable constitutional claim of ineffective assistance of counsel due to counsel’s failure to show and discuss discovery materials with him. Accordingly, Walker argued that the trial court erred in dismissing his petition. Id. at ¶ 12. The Appellate Court’s review of the trial court’s summary dismissal was conducted de novo.

The Appellate Court explained that a “trial court must summarily dismiss a postconviction petition at the first stage of proceedings if the petition is frivolous or patently without merit.” Id. at ¶ 14. Further, the Appellate Court explained that to ultimately prevail on a claim of ineffective assistance of counsel, one must show that counsel’s performance was objectively unreasonable and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 15. Yet, at the first stage of post-conviction proceedings, “a petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Id. at ¶ 15.

The State argued that a defendant has no independent right to review discovery materials and that counsel’s refusal to allow a defendant to review those materials may not provide the basis for an ineffectiveness claim. In support of their argument, the State cited People v. Savage, 361 Ill. App. 3d 750 (2005), and People v. Davison, 292 Ill. App. 3d 981 (1997). Id. at ¶ 16. Walker argued, in response, that counsel has a duty to disclose or discuss “at least certain discovery materials,” especially those most relevant to a decision to plead guilty, implicitly conceding to the State’s argument that counsel does not have a duty to show a defendant all discovery materials to his client. Id. at ¶ 17.

The Appellate Court sided with the State and found that Walker’s argument regarding the disclosure of the police report undermined his own claims, as it contained no information not already in the record and provided no basis for arguing that counsel’s decision not to disclose the report was unsound or unreasonable. Id. at ¶ 20. Additionally, the Appellate Court held that no factual allegations within the petition, nor documents attached to the petition, created a basis for arguing that counsel’s performance fell below an objective standard of reasonableness. The appellate court affirmed.

Court’s order denying motion for leave to file successive petition reversed where trial court failed to consider youthful characteristics of defendant at sentencing

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The appellant in People v. Parker, 2019 IL App (5th) 150192 appealed the decision of the Circuit Court of Washington County denying his motion for leave to file successive post-conviction petition.

Leonard Parker was charged with four counts of first degree murder based on a theory of accountability related to the stabbing of a victim by a co-defendant, during the course of a robbery and residential burglary in September of 2000. Parker was 16 years old at the time of arrest. Id. at ¶ 2. Shortly thereafter, Parker entered into a negotiated plea agreement in which he pled guilty to one count of first-degree murder in exchange for the dismissal of the other three charges and a sentence not to exceed 50 years imprisonment. Parker was sentenced to 35 years imprisonment and ordered to pay a fine of $10,000 at his December 2000 sentencing hearing. Id. at ¶ 4.

In January of 2001, Parker filed a motion for leave to withdraw his guilty plea, arguing that he entered his guilty plea without sufficient understanding and contemplation of the serious nature of the consequences, was under pressure from his parents, and had insufficient discussions with his counsel. This motion was accompanied by a motion to reconsider the sentence, arguing that his sentence was excessive. Parker later withdrew the motion after being admonished that moving forward would result in a criminal trial for all four counts of first-degree murder. Id. at ¶ 5. The court denied the motion to reconsidering his sentence, noting that the withdrawal of his motion to withdraw his guilty plea forbid him from challenging his sentence. Id. at ¶ 6.

In 2010, Parker filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel based on: newly discovered evidence that police had ignored his parents’ request not to question him until they were present; that his counsel did not inquire as to whether he was questioned outside his parents’ presence; that he was coerced into entering a guilty plea by his counsel and parents (where his plea was based on a misinterpretation of the sentencing range); and that he was coerced by counsel to withdraw his motion to withdraw his guilty plea. Id. at ¶ 7. The petition advanced to second stage proceedings, where the State successfully moved to dismiss the petition based on the fact that it was filed beyond the time allowed under the Act. The dismissal was affirmed upon appeal. Id. at ¶ 8.

In 2015, Parker filed a pro se motion for leave to file a successive petition for post-conviction relief, which argued that his sentence amounted to a de facto life sentence in violation of the eighth amendment of the United States Constitution, citing Miller v. Alabama, 567 U.S. 460 (2012). Id. at ¶ 9. The trial court denied the motion, challenging Parker’s assertion that 35 years amounted to a de facto life sentence and argued that Miller only applied to mandatory life sentences. This appeal followed.

In its analysis of Miller, the Appellate Court noted that in the period between filing Parker’s appeal and their review of the case, the Illinois Supreme Court had extended the holding of Miller in People v. Holman, 2017 IL 120655, which established “that life sentences for juvenile defendants, whether mandatory or discretionary, were disproportionate and violated the eighth amendment unless the trial court considered the offender’s youth and its attendant circumstances.” Id. at ¶ 13.

The Court also noted that in the subsequent cases of Reyes and Buffer, the Illinois Supreme Court held that “sentencing a juvenile offender to a mandatory term of years that was the functional equivalent of life without the possibility of parole (de facto life sentence) constituted cruel and unusual punishment in violation of the eighth amendment” and “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment because it provides some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at ¶ 14-15.

The appellate court held that Parker demonstrated cause because “Reyes and Buffer had not been decided when he filed his initial post-conviction petition and, thus, was not available to” him at the time of filing. Moreover, the Court ruled that although his sentence was below the line drawn in Buffer and is not a de facto life sentence, Parker still demonstrated prejudice, in that he showed a reasonable probability that he would have achieved a better result if the trial court had correctly applied the constitutional limitations of juvenile sentences (considering that Buffer applies retroactively). Id. at ¶ 18.

Ultimately, the appellate court held that retroactive application of Buffer constitutes cause and prejudice for purposes of being granted leave to file a successive post-conviction petition, reversed the decision of the Circuit Court of Washington County denying Parker’s motion for leave, and remanded for further proceedings. Id. at ¶ 18.

Failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal of his 2-1401 petition

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The appellant in People v. Roberson, 2019 IL App (1st) 170757 appealed the decision of the Circuit Court of Cook County dismising his pro se petition for relief from judgement (under section 2-1401 of the Code of Civil Procedure) on the grounds that the dismissal was premature since it was within 30 days of the petition’s filing. The Appellate Court of Illinois First District ultimately affirmed the decision of the Circuit Court of Cook County.

Appellant Roberson was charged with one count of armed habitual criminal and two counts of unlawful use of a weapon by a felon, related to an incident in December 2008. Id. at ¶ 3. At trial, one of the police officers who executed the search warrant resulting in Roberson’s arrest–Officer Kasper–testified that Roberson confessed to the purchase and possession of an illegal firearm found within his apartment. Id. at ¶ 5. The trial court found Roberson guilty on all counts and sentenced him to 20 years’ imprisonment. Id. at ¶ 6. On direct appeal, Roberson unsuccessfully argued that his trial counsel was ineffective for failing to file a pre-trial motion challenging the veracity of the allegations in the search warrant (a Franks hearing) and failing to move to suppress his statements regarding the location of the recovered firearm. Id. at ¶ 7. The Appellate Court of Illinois First District affirmed on direct appeal.

Following his direct appeal, Roberson then filed a pro se post-conviction petition, arguing, inter alia, that his confession was coerced, and he was not properly Mirandized, and that his sentence constituted an abuse of discretion. The circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 8. Upon dismissal, Roberson filed a pro se section 2-1401 petition, repeating the arguments that he was improperly Mirandized and that his sentence lacked statutory authority. Id. at ¶ 9. This petition was accompanied by a Proof/Certificate of Service, dated December 7, 2016, from Dixon Correctional Center, where appellant Roberson was imprisoned. Court records show multiple copies of the petition were circulated before being “filed” on January 3, 2016 (corrected by hand to say January 3, 2017) and January 4, 2017. Id. at ¶ 10. The petition was dismissed sua sponte on February 3, 2017, with a noted filing date of January 4, 2017, for being “frivolous and patently without merit.” Id. at ¶ 11. This appeal followed.

Roberson contended on appeal that the court prematurely dismissed his section 2-1401 petition within the 30-day waiting period that began after the petition was filed on January 4, 2017. Id. at ¶ 13. The State’s response to Roberson’s argument was that the petition was filed on January 3, 2017, transferred to another court on January 4, 2017, and then subsequently re-filed on January 4, 2017. With a filing date of January 3, 2017, the State argues the petition’s dismissal on February 3, 2017 was timely, as it came more than 30 days following the filing. Id. at ¶ 13.

The Court observed that both timeliness arguments were predicated upon the theory that the 30-day response period begins with the date the petition was filed. However, as noted by the Supreme Court, the 30-day response period begins on the date the State receives notice, not the date of filing. Id. at ¶ 17. Yet, because Roberson failed to serve notice on the State, the Court was required to “presume the circuit court’s order conforms with the law,” as the burden of presenting a sufficiently complete records falls upon the appellant. Id. at ¶ 18. Moreover, the Court held that failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal. Id at ¶ 18.

Because of Roberson’s failure to properly serve the State and his resultant inability to establish that the circuit court’s sua sponte\dismissal was untimely, the Appellate Court of Illinois First District presumed the circuit court’s order conformed with the law and affirmed the judgment of the Circuit Court of Cook County.

 

 

 

Appellate court affirms denial of post-conviction petition that failed to make a showing of actual innocence

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The appellant in People v. Shaw, 2019 IL App (1st) 152994 appealed the decision of the Circuit Court of Cook County dismissing his petition for post-conviction relief, arguing 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 him and had named another man as the offender.

Germaine Shaw pled guilty and was sentenced to 28 years’ imprisonment for aggravated criminal sexual assault and 6 years’ imprisonment (to be served concurrently) for each home invasion offense, related to acts committed against multiple victims. Id. at ¶ 9.

Shaw did not file a direct appeal, but he moved to withdraw his plea three years after pleading guilty in 2005. Id. at ¶ 10. The motion was denied by the trial court for failure to file it within 30 days of sentencing. In 2007, Shaw filed a pro se motion to reconsider or reduce his sentence, arguing that the sentence should be reduced because DNA was not found in the sexual assault. This motion was denied by the court. In 2010, the trial court also denied a section 2-1401 petition for relief from judgement filed by Shaw. Id. at ¶ 11.

In 2013, Shaw filed a pro se post-conviction petition under the Post-Conviction Hearing Act (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 pled guilty, and (3) newly discovered evidence supported his claim of actual innocence. Specifically, defendant alleged that in February 2013, Andrew Coe, the grandson of a friend of M.J. (the victim of the sexual assault) informed him that M.J. admitted to Coe that she identified the wrong person as her attacker. Id. at ¶ 12.’

In support of the claim of actual innocence in the petition, Shaw included a notarized affidavit from Coe, which 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. Further, Coe stated that M.J. told him that after the incident she was “coerced to pick some gentlem[a]n 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 the 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.” Id. at ¶ 13. Shaw also included his own notarized affidavit speaking to the brutality he suffered at the hands of unidentified officers and the threats that his defense lawyer made to withdraw if he did not plead guilty. Id. at ¶ 14.

After the trial court advanced the petition to second-stage proceedings, the State filed a motion to dismiss, arguing that defendant’s post-conviction petition was untimely and that 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 knowingly and voluntarily made. Id at ¶ 15.

The trial court agreed with arguments made by the State that Shaw’s coerced confession claim was untimely under the Act and had been waived by pleading guilty. Moreover, the court concluded that the 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 trial court ruled that Shaw failed to make a substantial showing of actual innocence, because Coe’s affidavit was inadmissible hearsay and would not change the result of a trial. Id. at ¶ 16. Ultimately, the court granted the State’s motion to dismiss. This appeal followed.

On appeal, Shaw did not challenge the dismissal of any claims other than those pertaining to his substantial showing of actual innocence. Shaw alleged that the court erred in dismissing his petition because a substantial showing of actual innocence was established by attaching Coe’s affidavit. Id. at ¶ 17.

The appellate court noted that 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 (noting that this case includes a special circumstance, as Shaw pled guilty and did not ever proceed to trial). Id. at ¶ 20-21. Moreover, after careful and extensive consideration, the the court concluded that a freestanding actual innocence claim may be brought after a guilty plea, and that a defendant does not need to challenge the knowing and voluntary nature of his or her plea to bring such a claim (as would have been barred in other states, considering the fact that Shaw did not challenge the voluntary nature of his guilty plea on appeal). Id. at ¶ 44. The appellate court held similarly regarding actual innocence claims, stating “no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence.” Id. at ¶ 52. In doing so, the Appellate Court substantively disagreed with the most recent analysis in Reed.

That being said, the Appellate Court ultimately agreed with the State (and to a certain degree, Shaw) that the evidence presented in support of Shaw’s claim of actual innocence amounts to inadmissible hearsay would not change the result of a trial–thus, failing to make a substantial showing of actual innocence. Id. at ¶ 64. Further, the court ruled that even without engaging in any credibility determinations, the evidence presented in the Coe affidavit was not of the character that would support an actual innocence claim because Coe is a non-eyewitness, who averred to a conversation he had with the victim more than 13 years before he inscribed his affidavit. Id. at ¶ 71.

As a result, the appellate court found that Shaw had not made a substantial showing of a constitutional violation that warranted a third stage evidentiary hearing and affirmed the decision of the Circuit Court of Cook County to dismiss his post-conviction petition for relief. Id. at ¶ 74-75.