People v. Jackson

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190316-U

Order filed November 18, 2021
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0316
v. ) Circuit No. 01-CF-17
)
JARVIS JACKSON, ) Honorable
) Paul P. Gilfillan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court.
Justices Daugherity and O’Brien concurred in the judgment.
____________________________________________________________________________

ORDER

¶1 Held: Defendant failed to make a substantial showing that the evidence attached to his
successive postconviction petition is newly discovered, material and not merely
cumulative, and of such conclusive character that it would probably change the
result on retrial. Defendant also failed to establish the prejudice necessary to
mount a successful ineffective assistance of counsel claim.

¶2 Following a plea of guilty to two counts of first degree murder, defendant, Jarvis Jackson,

initiated extensive postconviction proceedings. In May 2019, the circuit court granted the State’s

motion to dismiss defendant’s 2018 amended successive postconviction petition following
 second-stage proceedings under the Post-Conviction Hearing Act (the Act). 725 ILCS 5/122-1 et

seq. (West 2018). Defendant appeals.

¶3 I. BACKGROUND

¶4 In January 2001, the State charged defendant with two counts of first degree murder

pursuant to section 9-1(a)(3) of the Criminal Code of 1961. 720 ILCS 5/9-1(a)(3) (West 2000).

The charges stemmed from the murder of two victims during the course of a robbery. Prior to

accepting defendant’s guilty plea to the charges, the circuit court conducted a hearing on

defendant’s motion to suppress his videotaped confessions. During the hearing, detectives denied

using coercive tactics to secure defendant’s confessions, despite defendant’s testimony to the

contrary. The court denied defendant’s motion to suppress, finding that his confessions were not

the product of coercion.

¶5 On May 24, 2001, defendant plead guilty to both counts of murder. In exchange for the

State’s agreement to waive its right to seek the death penalty, defendant agreed to testify at his

codefendants’, Johns and Echols’s, future trials. This court recounted the factual basis of

defendant’s guilty plea in People v. Jackson, No. 3-06-0702 (2008) (unpublished order under

Illinois Supreme Court Rule 23) (Jackson I). Defendant was sentenced to natural life in prison.

¶6 In Jackson I, this court considered the dismissal of defendant’s initial postconviction

petition, filed in 2006. This court was asked to consider defendant’s claim of actual innocence

and his claim that he was denied effective assistance of counsel. Defendant argued plea counsel

failed to investigate exculpatory evidence, including the statements of the sole eyewitness and

the initial charges levied against another individual in the case. Our ruling in Jackson I provided

that defendant’s citations to police reports and the grand jury transcripts relating to the

investigation and indictment of Michael Young were improper, where this evidence was

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 available prior to defendant tendering his guilty plea. This court further rejected defendant’s

ineffective assistance claim, stating:

“The record here shows that defendant gave a videotaped confession in which he

admitted to shooting and killing both [the victims]. Moreover, Pat Rabe, the detective

who took defendant’s confession, testified that Douglas, Jr., erroneously identified

Young, who was very similar in height, weight and complexion to defendant. Rabe stated

that Young was known as Big Mike, and Dwaine Johns was known as Big Folks, so

there could have been some confusion at the apartment when someone yelled Big Folks.

Thus, even if counsel were to investigate the evidence pertaining to the indictment of

Michael Young, we do not believe the result of the proceeding, had defendant chosen to

go to trial, would have been different given defendant’s confession and Rabe’s

testimony.” (Internal quotation marks omitted.)

¶7 Thereafter, extensive postconviction proceedings ensued and were documented by this

court in People v. Jackson, No. 3-09-0569 (2010) (unpublished order under Illinois Supreme

Court Rule 23) and People v. Jackson, 2015 IL App (3d) 130575. Recently, in Jackson, 2015 IL

App (3d) 130575, this court reversed the dismissal of defendant’s successive postconviction

petition (2009 successive petition), originally filed on July 21, 2009. Without reaching the merits

of defendant’s postconviction claims, this court remanded the case for further proceedings.

¶8 Following remand, defendant filed a pro se amended successive postconviction petition

(2018 successive petition) on July 30, 2018. In the 2018 successive petition, defendant provided

that he gave a videotaped confession, wherein he admitted to shooting the victims as part of a

robbery carried out by defendant, Johns, and Echols. However, defendant asserted that his

statements to the police concerning the robbery and the shooting were not credible and that

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 several key pieces of evidence pointed to another possible suspect. Specifically, defendant

referenced the statements of a five-year-old eyewitness, reports police received from neighbors,

footprints discovered at the scene, wiretap conversations that “yielded no inculpatory evidence,”

and a witness statement that the shooter wore prescription glasses. Based on this alleged

exculpatory evidence, defendant asserted actual innocence, along with asserting that his guilty

plea was involuntary, where plea counsel coerced him to enter a guilty plea. Defendant further

asserted that plea counsel was ineffective for failing to disclose this exculpatory evidence, where

defendant had a viable defense to the charges.

¶9 In support of his assertions, defendant attached multiple police/incident reports

documenting the investigation. Defendant also attached the affidavits of Johns, Echols,

defendant, and defendant’s father (Steele). The affidavits of codefendants Johns and Echols

mirror one another. In their affidavits, both Johns and Echols recant their prior statements about

their involvement in the victims’ murders. Contrary to their prior statements, Johns and Echols

asserted that they did not agree to commit a robbery with defendant and were not present when

either victim was murdered. Johns and Echols asserted that their prior statements were coerced

through physical and verbal threats by investigators.

¶ 10 Defendant’s affidavit also asserted that investigators utilized coercive tactics to elicit a

confession. Defendant further asserted that plea counsel failed to inform him of the alleged

exculpatory evidence, and that had counsel done so, defendant would not have plead guilty.

Lastly, defendant recanted his prior statements that he, Johns, and Echols participated in the

murder of the victims. Steele’s affidavit generally averred that in 2010, defendant and Steele

attempted to contact plea counsel to have plea counsel sign an affidavit prepared by defendant.

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¶ 11 During a hearing on October 5, 2018, the parties discussed the fact that defendant filed

his 2018 successive petition without first withdrawing the 2009 successive petition. At this time,

the court stated: “[m]y suggestion is to dismiss with prejudice the 2009 [successive] petition, in

light of the 2018 [successive] petition having been filed.” The court’s written order indicated that

defendant withdrew the 2009 successive petition in order to proceed on the 2018 successive

petition.

¶ 12 On January 4, 2019, the State filed a motion to dismiss both the 2018 successive petition

and the 2009 successive petition. The State’s motion to dismiss argued defendant was not

allowed to supplement or amend his 2009 successive petition on remand. Substantively, the State

argued the evidence attached to the petition and/or petitions was not newly discovered and did

not establish actual innocence. The State also argued defendant could not establish ineffective

assistance of counsel, where counsel’s investigation into matters set forth in the petitions would

not reasonably alter the outcome of the proceeding.

¶ 13 On February 19, 2019, defendant filed a response to the State’s motion to dismiss.

Defendant asserted that he added two additional claims to the 2018 successive petition, relative

to the claims set forth in the 2009 successive petition. The additional claims were that defendant

had a viable defense to the charges and that the plea admonishments were insufficient to cure

counsel’s ineffectiveness.

¶ 14 On May 31, 2019, the court conducted a hearing on the State’s second-stage motion to

dismiss. At the outset, the State again asserted its belief that defendant did not have the right to

amend the 2009 successive petition by filing the 2018 successive petition. Nonetheless, the State

addressed both successive petitions and argued the petitions were without merit. Following the

hearing, the court granted the State’s second-stage motion to dismiss both the 2009 successive

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 petition and the 2018 successive petition, finding that the 2018 successive petition merely

amplified the 2009 successive petition. The court specifically found that several of the issues

raised in defendant’s successive petitions were previously litigated and denied in Jackson I.

Defendant appeals.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues the circuit court improperly dismissed the 2018 successive

petition and urges this court to remand his case for a third-stage evidentiary hearing. Defendant

asserts that the 2018 successive petition included an allegation of newly discovered, material,

non-cumulative evidence, that made a substantial showing that defendant was actually innocent

of the crimes for which he plead guilty and that a retrial would probably result in acquittal.

Additionally, defendant asserts that plea counsel was ineffective for advising defendant to plead

guilty without first disclosing discovery to defendant or adequately investigating the prior arrest

of another suspect for these crimes. The State argues the 2018 successive petition failed to allege

the gist of a constitutional claim of actual innocence and failed to make a substantial showing

that plea counsel provided ineffective assistance of counsel.

¶ 17 Before addressing defendant’s postconviction claims of actual innocence and ineffective

assistance, we consider whether the 2009 or 2018 petition is subject to our review. During oral

argument, the parties agreed the 2018 successive petition is the only pending petition subject to

our review. 1

¶ 18 The Act offers criminal defendants a mechanism to mount a collateral attack on a final

judgment by asserting that in the proceedings which resulted in his or her conviction, there was a

1
It is worth noting that since the 2009 successive petition is substantially similar to the 2018
successive petition, even if we ignored the 2018 successive petition and focused on the contents of the
2009 successive petition, the outcome of this appeal would not change.
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 substantial denial of his or her rights under the Constitution of the United States or the State of

Illinois or both. See People v. Robinson, 2020 IL 123849, ¶ 42. The Act contemplates the filing

of a single postconviction petition. People v. Coleman, 2013 IL 113307, ¶ 81. However, the bar

against filing successive postconviction petitions is relaxed, where the defendant asserts a

fundamental miscarriage of justice based on actual innocence. Robinson, 2020 IL 123849, ¶ 42.

¶ 19 The Act sets forth a three-stage process for reviewing postconviction claims. People v.

Boclair, 202 Ill. 2d 89, 99 (2002). Once a postconviction petition advances past the first stage,

the circuit court must determine whether the petition, and any accompanying documentation,

makes a substantial showing of a constitutional violation. People v. Domagala, 2013 IL 113688,

¶ 33. At this stage, unless the allegations set forth in the petition are affirmatively refuted by the

record, they are taken as true, and the question becomes whether those allegations establish a

constitutional violation. Id., ¶ 35. To advance an actual innocence claim to a third-stage

evidentiary hearing, a defendant must plead a substantial showing that the evidence is newly

discovered, material and not merely cumulative, and of such conclusive character that it would

probably change the result on retrial.2 People v. House, 2020 IL App (3d) 170655, ¶ 29. People

v. Sanders, 2016 IL 118123, ¶ 46. This court reviews de novo whether a postconviction petition

was erroneously dismissed without a third-stage evidentiary hearing. Id., ¶ 31.

¶ 20 A. 2006 Postconviction Petition

¶ 21 The record establishes that defendant’s original postconviction petition was submitted to

the circuit court and summarily dismissed in 2006 as frivolous and patently without merit. In

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This court is cognizant of the State’s citation to the evidentiary standard set forth in Reed,
wherein defendants who plead guilty and bring actual innocence claims are required to provide “new,
material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably
result in acquittal.” (Emphasis added.) People v. Reed, 2020 IL 124940, ¶ 49. Though the Reed decision is
not entirely clear, it appears our supreme court developed this evidentiary standard for third-stage
evidentiary hearings, making the standard inapplicable here. See id., ¶ 65.
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 Jackson I, this court upheld the dismissal of the 2006 postconviction petition. Although our court

observed that the circuit court’s ruling could be affirmed due to the deficiency in the attached,

but unnotarized, affidavits, the court expressly declined to affirm the circuit court’s dismissal

based on that narrow procedural approach. Instead, the court considered the undisputed fact that,

prior to defendant’s arrest, another person had been arrested for the same murders. Ultimately,

our court held that the arrest of another suspect was known information, available to defendant,

prior to the court’s approval of the negotiated guilty plea. Consequently, our court held that we

could not consider defendant’s citations to police reports and the grand jury transcripts relating to

the investigation and indictment of Michael Young.

¶ 22 In addition, the 2006 postconviction petition alleged defendant was denied effective

assistance of counsel because plea counsel failed to investigate exculpatory evidence, including

the arrest of another person for the murders, based on the statements and the identification of

another suspect by a five-year-old eyewitness. This court held in Jackson I that defendant did not

establish the prejudice prong necessary for a successful ineffective assistance claim. The court

reasoned that defendant’s videotaped confession, as well as Rabe’s testimony discrediting the

witness’s identification of the shooter, foreclosed on the possibility that if defendant had not

entered a guilty plea, the result of the trial would have been different.

¶ 23 B. 2018 Successive Petition

¶ 24 In his 2018 successive petition, defendant alleges, once again, the ineffective assistance

of plea counsel, arguing that by failing to show defendant relevant portions of the discovery,

counsel failed to ensure that defendant’s plea was entered knowingly and voluntarily. We note

that the State has not asserted that our 2008 decision in Jackson I constitutes res judicata and

bars defendant from relitigating this issue. Without addressing the application of res judicata, we

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 independently conclude, after reviewing this record de novo, that defendant has not established

plea counsel’s purported ineffectiveness resulted in prejudice.

¶ 25 Importantly, in 2006, the circuit court found that defendant voluntarily confessed to the

murders, following the hearing on defendant’s pretrial motion to suppress. Hence, as Justice

McDade held in Jackson I, this confession, coupled with Rabe’s testimony, made it extremely

unlikely that the outcome of the trial would have been different if defendant had elected to

maintain his not guilty plea. In addition, after defendant’s guilty plea, the record reveals the two

codefendants testified in each of their respective jury trials that defendant was the only adult

present when each victim was shot. Defendant also testified during each codefendant’s trial that

he was the person who shot each of the victims. Finally, after carefully reviewing the affidavits

of defendant, Johns, and Echols that are attached to the 2018 successive petition, we note that the

affidavits do not contain a recantation of any portion of the sworn testimony incriminating

defendant as the murderer.

¶ 26 The 2018 successive petition, unlike the 2006 postconviction petition, included a

reference to People v. Hall, 217 Ill. 2d 324, 335-36 (2005), which instructs that to establish the

prejudice prong of an ineffective assistance claim, the claim must be accompanied by either an

actual innocence claim, or the articulation of a plausible defense. In the 2018 successive petition,

defendant alleged his plausible defense was “another possible suspect.” Again, based on

defendant’s voluntary confession and his subsequent sworn testimony in each codefendant’s trial

after entering his own guilty plea, we conclude defendant cannot establish the outcome of the

proceeding would have been different, regardless of the alleged existence of “another possible

suspect.” Moreover, the record contradicts defendant’s assertion that evidence of “another

possible suspect” was newly discovered. The record reflects that defendant attached the

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 transcripts of his 2001 grand jury proceedings to his 2006 postconviction petition. These

transcripts contain Detective Rabe’s testimony that charges in the case were initially levied

against another individual. Thus, we are not persuaded by defendant’s assertion that this

evidence concerning another suspect is newly discovered. For these reasons, defendant’s

ineffective assistance claim, as now asserted in the 2018 successive petition, fails.

¶ 27 Next, we consider whether the affidavits of defendant, Steele, Johns, and Echols are

newly discovered, material and not merely cumulative, and of such conclusive character that

they would probably change the result on retrial. Here, the State contends the affidavits did not

establish the existence of newly discovered, material evidence of actual innocence. We agree.

¶ 28 Defendant’s affidavit, recanting his pretrial statement to the police, does not constitute

newly discovered evidence because, as the State submits, defendant would have known his

pretrial statement was false prior to the entry of his own guilty plea. In addition, based on the

circuit court’s ruling denying defendant’s initial motion to suppress, which has not been the

subject of any appeal, the record clearly contradicts defendant’s claim that his confessions were

coerced.

¶ 29 Next, Steele’s affidavit pertains to unsuccessful attempts to obtain an affidavit from plea

counsel. Evidence of Steele’s unsuccessful attempts to obtain plea counsel’s signature on an

affidavit is immaterial to defendant’s claim of actual innocence.

¶ 30 Lastly, Johns and Echols’s affidavits recant their respective pretrial statements to law

enforcement regarding defendant’s conduct at the time of each shooting. However, their

affidavits do not provide any evidence alleging someone other than defendant was present and

could have shot each victim. Johns and Echols’s affidavits simply assert that they are innocent

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 and do not allege the existence of any new evidence concerning, for instance, the identity of the

shooter, whether it be defendant or otherwise.

¶ 31 Finally, we address a new claim, raised for the first time in the 2018 successive petition,

regarding the insufficiency of the court’s admonishments to defendant concerning whether

defendant’s guilty plea was the result of coercion. Defendant supported this claim by attaching a

transcript of the plea hearing to his 2018 successive petition. However, this transcript cannot be

considered newly discovered when it would have been available to defendant prior to the filing

of the 2006 postconviction petition. Moreover, defendant’s assertion that his guilty plea was

coerced is contradicted by the record and constitutes a frivolous claim. As noted by

postconviction counsel’s motion to withdraw from defendant’s representation in the circuit court,

“[t]he transcript of the plea clearly shows that [defendant] stated that he was entering into the

plea knowingly and voluntarily and that he had not been coerced or threatened.” Indeed, the

transcript confirms postconviction counsel’s prior assertion.

¶ 32 For the reasons set forth above, the circuit court’s decision to grant the State’s motion to

dismiss the 2018 successive petition at the second stage is affirmed.

¶ 33 III. CONCLUSION

¶ 34 The judgment of the circuit court of Peoria County is affirmed.

¶ 35 Affirmed.

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