People v. Camayo

2022 IL App (1st) 200914-U
Order filed: September 15, 2022

FIRST DISTRICT
FOURTH DIVISION

No. 1-20-0914

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).
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 02949
)
CEASAR CAMAYO, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Lampkin and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: Dismissal of defendant’s postconviction petition at the second stage is affirmed,
where defendant failed to make a substantial showing that he was provided
ineffective assistance of appellate counsel on his direct appeal and nor did he
overcome the presumption that he was provided his statutory right to the reasonable
assistance of postconviction counsel.

¶2 Defendant-appellant, Ceasar Camayo, appeals from the second-stage dismissal of the

postconviction petition he filed pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS

5/122-1 et seq. (West 2014)). For the following reasons, we affirm.

¶3 On January 25, 2010, defendant was arrested following an incident involving an on-duty

Chicago Police officer who was driving in his unmarked vehicle. Defendant was charged with

multiple offenses, including two counts of attempted first-degree murder of a peace officer, two
No. 1-20-0914

counts of attempted first-degree murder, and four counts of aggravated discharge of a firearm.

¶4 At trial, Chicago Police Officer Eric Wier testified that at about 3:30 p.m. on January 25,

2010, he was traveling southbound on the 4700 block of South Throop Street in Chicago. Officer

Wier was on covert patrol, wearing civilian clothing, a bulletproof vest, and his police badge

around his neck. He was driving an unmarked Dodge Stratus when he came upon a gray sport

utility vehicle (SUV) that was stopped and partially blocking the one-way street. Officer Wier

stopped several feet back and waited for the SUV to proceed. While he waited, Officer Wier

observed a man, whom he later identified in court as defendant, standing outside the passenger

side of the SUV speaking to the occupant of that vehicle through the open passenger door. Officer

Wier could clearly see defendant's face and noticed a distinctive teardrop tattooed under his right

eye. After a short time, Officer Wier honked his horn and motioned for the SUV to move out of

his way. Defendant turned to face Officer Wier and moved his hands forward with his thumbs up

and his palms outstretched, then walked toward the rear of the SUV. At this time, defendant pulled

from his coat a blue steel revolver and aimed it at Officer Wier. As Officer Wier accelerated around

the left side of the SUV, defendant moved to the front of the SUV and fired a shot toward Officer

Wier. When this shot was fired, Officer Wier's vehicle was “even” with the SUV. As he fled the

area traveling southbound, Officer Wier heard another four or five shots being fired toward the

rear of his vehicle. Officer Wier sped around the block to 47th and Throop Streets to radio for help.

Officer Wier subsequently viewed a lineup and identified defendant as the man who shot at him.

¶5 The State also presented evidence at trial of a prior incident involving defendant, pursuant

to a motion in limine filed by the State in anticipation of an alibi defense raised pretrial in which

defendant indicated he would claim that he was at home watching the child he had with his

girlfriend at the time of the shooting. That prior incident occurred in 2006, when defendant shot at

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and wounded Alan Leslie. Following his arrest for that shooting, defendant denied any knowledge

of the incident. However, defendant later admitted he was present at the scene, but that he did not

fire the shots. Officer Michael O'Donnell, a detective assigned to the homicide division of the

Chicago Police Department, testified that in 2006 he investigated the shooting of Leslie. Officer

O'Donnell testified that defendant changed his story three times as to his whereabouts during the

time of that shooting, including making a claim that he was with his girlfriend. Defendant

ultimately pleaded guilty to a single count of aggravated battery.

¶6 After the State rested, the parties agreed to a stipulation as to evidence surrounding gunshot

residue (GSR) testing. The parties stipulated that defendant was taken into custody on January 25,

2010, at 4:58 p.m., a GSR test was administered to defendant on that same date at 6:45 p.m., and

a proper chain of custody was maintained. The parties further stipulated that Scott Rochowicz, an

Illinois State Police crime lab technician, would testify that he administered the GSR test to

defendant's hands and his clothing, that the GSR test results showed “[defendant] may not have

contacted a PGSR-related item,” and that he may not have been in the environment of a discharged

firearm. Additionally, it was stipulated that the tests showed defendant may not have discharged a

firearm with either hand. Finally, the parties stipulated that Mr. Rochowicz would testify that if

defendant had discharged a firearm, the particles had been removed by activity, or had not been

detected by the procedure.

¶7 The defense rested without presenting any testimony. After hearing closing arguments, the

trial court found defendant guilty of two counts of aggravated discharge of a firearm and sentenced

him to two concurrent terms of 10 years' imprisonment.

¶8 Defendant filed a direct appeal in which he asserted—inter alia—that the trial court

improperly relied on personal knowledge as to the significance of the negative results of the GSR

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No. 1-20-0914

test. People v. Camayo, 2013 IL App (1st) 111168-U, ¶ 10. Because defendant had not properly

preserved this issue for appeal, this court reviewed the matter for plain error and in relevant part

concluded that: “Based on the strength and certainty of Officer Wier's eyewitness identification,

which was never rebutted or discredited, the evidence cannot be deemed closely balanced for plain-

error review.” Id. ¶13. Defendant’s convictions were affirmed. Id. ¶ 28.

¶9 On March 25, 2014, defendant filed a pro se postconviction petition raising numerous

claims, including assertions that his trial counsel was ineffective for failing to investigate or present

testimony from potential witnesses who had been identified in police reports, and appellate counsel

was ineffective for not raising a challenge to the admission of the other-crimes evidence on direct

appeal.

¶ 10 Defendant also specifically claimed that trial counsel was ineffective for failing to

investigate a potential alibi witness named Alexandra Mendoza, who had been defendant’s

girlfriend at the time of the charged incident. He alleged that Mendoza would have been able to

testify that, before the shooting, she left defendant at home to take care of their newborn son and

another young relative while she took her oldest son to a medical clinic. At 3:50 p.m., after hearing

shots fired and confronting the shooter, defendant called Mendoza and warned her to be careful on

her way home because there had been a shooting. The petition alleged that defendant told trial

counsel to speak to Mendoza but that he refused, saying that he was not going to waste his time

looking for her. It further alleged that Mendoza had called trial counsel repeatedly and left him

messages seeking to speak with him about what she knew but that counsel neglected those calls

and messages. Defendant supported this claim with his own affidavit averring counsel’s awareness

of Mendoza as a possible witness. Although he did not attach an affidavit from Mendoza to the

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No. 1-20-0914

petition, defendant explained that he was unable to obtain one because they had broken up and she

had not spoken to him in three years.

¶ 11 In a written order entered on June 18, 2014, the trial court addressed each of the numerous

claims raised in the petition and summarily dismissed the petition as frivolous and patently without

merit. As to defendant's several claims that trial counsel had failed to conduct an effective

investigation of the case, including a claim that counsel had not interviewed individuals who lived

or were near the scene of the shooting, the trial court found that the claims were speculative and

did not result in prejudice because this court had found the evidence was not closely balanced on

direct appeal.

¶ 12 On appeal from that decision, defendant argued that his petition was improperly dismissed

because it set forth arguably meritorious claims of ineffectiveness of trial counsel for failure to

investigate and present testimony of the individuals who made statements to the police, as well as

arguably meritorious claims of ineffectiveness of appellate counsel for failure to raise the issue of

other-crimes evidence. People v. Camayo, 2013 IL App (1st) 142349-U, ¶ 13. After concluding

that defendant raised an arguable claim that his trial counsel was ineffective for failing to

investigate witnesses, this court concluded that the petition was sufficient to withstand summary

dismissal at the first stage and we therefore remanded for second-stage proceedings. Id. ¶¶ 26-27.

We did not address defendant’s claim of ineffectiveness of appellate counsel since partial summary

dismissals of postconviction petitions are not permitted. Id.

¶ 13 After the case was remanded, defendant sent his appointed attorney a letter that contained

an affidavit from Mendoza. Mendoza’s affidavit averred that, at around 12:45 p.m. on the date of

the charged incident, she left defendant at home to watch their newborn baby and a four-year-old

boy while she took her older son to a medical clinic. At 3:50 p.m., while she was still at the clinic,

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No. 1-20-0914

defendant called her and told her to be careful on her way home because there had been a shooting

nearby. She arrived home at 4:15 p.m. and watched television with defendant while the two older

boys played. At 5:00 p.m., police kicked in their back door and entered their home, eventually

arresting defendant. After defendant was arrested, Mendoza repeatedly called defendant’s trial

counsel to give him this information, but her calls and messages were never returned.

¶ 14 New postconviction counsel was assigned to represent defendant in October 2018, as his

prior counsel was leaving the public defender’s office. The transcript from the hearing conducted

on that date indicates that defendant’s new counsel would be contacting defendant’s prior

postconviction counsel and reviewing prior counsel’s case file, and the transcript from the

following hearing indicates that defendant’s new and prior postconviction counsel had been in

communication. In August 2019, postconviction counsel filed a certificate pursuant to Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017), stating that he had consulted with defendant

concerning his allegations, had examined the appellate record, and had “conducted additional

investigation in this case as it pertain[ed] to his post-conviction petition.” The certificate also stated

that counsel had not prepared a “[s]upplemental” postconviction petition because defendant’s pro

se petition “adequately set[] forth [his] claims of deprivation of his constitutional rights.”

¶ 15 In March 2020, the State filed a motion to dismiss defendant’s unamended postconviction

petition. With respect to the claim that trial counsel had failed to investigate Mendoza, the State

argued that because the petition did not have Mendoza’s affidavit attached to it that claim was not

properly supported, and it was therefore impossible to determine how the outcome at trial might

have been different had she testified. The State also argued that the trial court’s admission of

evidence concerning the unrelated 2006 incident was not error and that, in any event, any allegation

of error had not been properly preserved in the trial court. Finally, the State argued that, because

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No. 1-20-0914

the issue about the other-crimes evidence (and other issues identified in defendant’s petition)

lacked merit, appellate counsel had not been ineffective for failing to raise them.

¶ 16 Postconviction counsel did not amend the pro se petition or attach any new evidence in

response to the State’s motion to dismiss, nor did he file a new Rule 651(c) certificate. In July

2020, the court held a hearing on the State’s motion to dismiss. At that hearing, postconviction

counsel stated that he would “not be filing any additional materials” because he “could not find

any further evidence that could be useful” to defendant. During its argument, the State highlighted

the absence of an affidavit from Mendoza, and it argued that the absence of any “outside evidence

to support the [postconviction] petition” meant that defendant could not show that he was

prejudiced by trial counsel’s failure to investigate or call witnesses. The trial court granted the

State’s motion and dismissed Defendant’s petition. Defendant timely appealed.

¶ 17 “The Post–Conviction Hearing Act *** provides a method by which persons under

criminal sentence in this state can assert that their convictions were the result of a substantial denial

of their rights under the United States Constitution or the Illinois Constitution or both. [Citations.]

A postconviction action is not an appeal from the judgment of conviction, but is a collateral attack

on the trial court proceedings.” People v. Tate, 2012 IL 112214, ¶ 8. The petition may be dismissed

at the first stage if it is frivolous or patently without merit, otherwise it advances to the second

stage. 725 ILCS 5/122-5 (West 2018). At the second stage, the defendant must make a substantial

showing of a deprivation of constitutional rights or the petition is dismissed. People v. Dupree,

2018 IL 122307, ¶ 28. If such a showing is made, the postconviction petition advances to the third

stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2018).

¶ 18 At the second stage, “ ‘[t]he inquiry into whether a post-conviction petition contains

sufficient allegations of constitutional deprivations does not require the [postconviction] court to

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engage in any fact-finding or credibility determinations.’ ” Dupree, 2018 IL 122307, ¶ 29 (quoting

People v. Coleman, 183 Ill. 2d 366, 385 (1998)). Rather, at the second stage of proceedings the

postconviction court takes “all well-pleaded facts that are not positively rebutted by the trial

record” as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Thus, the substantial showing of

a constitutional violation that must be made at the second stage is “ ‘a measure of the legal

sufficiency of the petition's well-pled allegations of a constitutional violation, which if proven at

an evidentiary hearing, would entitle [defendant] to relief.’ ” (Emphasis omitted.) Coleman, 183

Ill. 2d at 385 (quoting People v. Domagala, 2013 IL 113688, ¶ 35).

¶ 19 “At the second stage of postconviction proceedings, the State may file a motion to dismiss

the petition.” People v. Graham, 2012 IL App (1st) 102351, ¶ 31. A petition may be dismissed at

the second stage only when the allegations in the petition, liberally construed in light of the trial

record, fail to make a substantial showing of a constitutional violation. People v. Hall, 217 Ill. 2d

324, 334 (2005). A second-stage dismissal of a postconviction petition is reviewed de novo.

Coleman, 183 Ill. 2d 366, 389 (1998). We may affirm a second-stage dismissal “on any basis

supported by the record.” People v. Stoecker, 384 Ill. App. 3d 289, 292 (2008).

¶ 20 On appeal, defendant first contends that his petition was improperly dismissed at the

second stage because his petition “made a substantial showing that he was denied his constitutional

right to the effective assistance of counsel on direct appeal when appellate counsel failed to

challenge the trial court’s ruling permitting the State to adduce evidence about the 2006 shooting

unrelated to the charged offense.”

¶ 21 A claim of ineffective assistance of counsel is judged according to the two-prong test

established in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Lawton, 212 Ill. 2d

285, 302 (2004). To obtain relief under Strickland, a defendant must prove defense counsel's

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performance fell below an objective standard of reasonableness and that this substandard

performance caused defendant prejudice by creating a reasonable probability that, but for counsel's

errors, the trial result would have been different. People v. Wheeler, 401 Ill. App. 3d 304, 313

(2010).

¶ 22 Because defendant must make a substantial showing of a constitutional violation to avoid

dismissal at the second stage, it is appropriate at this stage to require defendant “to ‘demonstrate’

or ‘prove’ ineffective assistance by ‘showing’ that counsel's performance was deficient and that it

prejudiced the defense.” People v. Tate, 2012 IL 112214, ¶ 19. While defendant must establish

both prongs of the two-part test discussed above, a reviewing court need not address counsel's

alleged deficiencies if the defendant fails to establish any prejudice. See Strickland, 466 U.S. at

687; People v. Edwards, 195 Ill. 2d 142, 163 (2001). Indeed, our supreme court has held that

“Strickland requires actual prejudice be shown, not mere speculation as to prejudice.” People v.

Bew, 228 Ill. 2d 122, 135 (2008). A defendant has the burden of establishing any such prejudice.

People v. Glenn, 363 Ill. App. 3d 170, 173 (2006). Thus, at the second stage of these postconviction

proceedings, defendant had the burden of making a substantial showing that a reasonable

probability exists that the outcome would have been different had his counsel's performance been

different. People v. Harris, 206 Ill. 2d 293, 307 (2002). A “ ‘reasonable probability’ ” is “ ‘a

probability sufficient to undermine confidence in the outcome’ ” of the proceeding. People v.

Simpson, 2015 IL 116512, ¶ 35 (quoting Strickland, 466 U.S. at 694).

¶ 23 In making the argument that his appellate counsel improperly failed to challenge the

introduction of evidence about the 2006 shooting at trial, defendant concedes that this issue was

not properly preserved for appeal because it was not included in the posttrial motion filed by trial

counsel. People v. Enoch, 122 Ill. 2d 176, 119 (1988) (to preserve an issue for review, a defendant

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must raise an objection both at trial and in a written posttrial motion). Nevertheless, defendant

asserts two arguments as to why his appellate counsel was nevertheless ineffective for failing to

raise the issue on direct appeal.

¶ 24 First, defendant contends that his appellate counsel should have asked this court to excuse

the forfeiture of this issue, noting that “[b]ecause forfeiture is a limitation on the parties, not the

court, courts have relaxed the forfeiture rule when its central purpose—that the trial court have the

opportunity to review the issue first—has been served.” See People v. Heider, 231 Ill. 2d 1, 18

(2008) (“In circumstances such as these, where the trial court clearly had an opportunity to review

the same essential claim that was later raised on appeal, this court has held that there was no

forfeiture.”). Noting that the admissibility of this evidence was fully litigated prior to trial in

response to the State’s motion in limine, defendant contends that relaxation of the forfeiture rule

was therefore warranted on direct appeal.

¶ 25 However, even if we agreed that appellate counsel’s performance fell below an objective

standard of reasonableness in failing to make this argument, at the second stage of these

proceedings defendant must still make a substantial showing of prejudice: i.e., a reasonable

probability that but for appellate counsel's purported error the result on direct appeal would have

been different. Wheeler, 401 Ill. App. 3d 313. Defendant contends that he made such a showing

where such an argument would have been successful on appeal considering: (1) the trial court’s

reliance upon the other-crimes evidence at trial and the inconsistency of Officer Wier’s

identification of defendant as the shooter with the GSR testing results, and (3) purported

weaknesses in Officer Wier’s description of defendant. We disagree.

¶ 26 We note again that at the second stage, only those facts that are not positively rebutted by

the trial record are taken as true. Pendleton, 223 Ill. 2d 473. While defendant broadly contends that

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the trial court relied on the other-crimes evidence at trial, the record reflects that the State originally

sought to introduced this evidence for the limited purpose of rebutting an expected alibi defense

that was never actually raised at trial. Furthermore, the State never referenced the other-crimes

evidence in closing argument and the trial court never mentioned or relied upon the other-crimes

evidence in finding defendant guilty.

¶ 27 Additionally, the GSR testing results were not actually inconsistent with Officer Wier’s

identification of defendant as the shooter. It is true that the parties did specifically stipulate at trial

that the tests showed defendant may not have discharged a firearm with either hand. However, they

also stipulated that it was also possible that if defendant had discharged a firearm, the particles had

been removed by activity or had simply not been detected by the procedure.

¶ 28 Finally, while defendant cites to purported weaknesses in Officer Wier’s description of

defendant a “basic tenet of the Act is that the scope of post-conviction relief is limited by

considerations of waiver and res judicata ‘to constitutional matters which have not been, and could

not have been, previously adjudicated.’ [Citation.] Issues that could have been raised on direct

appeal, but were not, and any issues that were decided by a reviewing court generally will not be

considered in a post-conviction proceeding.” People v. Simpson, 204 Ill. 2d 536, 546 (2001).

Furthermore, a “petitioner may not avoid the bar of res judicata simply by rephrasing *** issues

previously addressed on direct appeal.” Id. at 559.

¶ 29 On direct appeal in this matter, we expressly concluded in response to an assertion of

unpreserved error that: “Based on the strength and certainty of Officer Wier's eyewitness

identification, which was never rebutted or discredited, the evidence cannot be deemed closely

balanced for plain-error review.” Camayo, 2013 IL App (1st) 111168-U, ¶ 13. Notably, “[p]lain-

error review under the closely-balanced-evidence prong of plain error is similar to an analysis for

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ineffective assistance of counsel based on evidentiary error insofar as a defendant in either case

must show he was prejudiced: that the evidence is so closely balanced that the alleged error alone

would tip the scales of justice against him, i.e., *** that there was a ‘reasonable probability’ of a

different result had the evidence in question been excluded.” People v. White, 2011 IL 109689, ¶

133.

¶ 30 As such, defendant may not now avoid our prior conclusion regarding the “strength and

certainty of Officer Wier's eyewitness identification, which was never rebutted or discredited,” in

order to establish that the outcome of his direct appeal would have been different but for appellate

counsel’s purported ineffective assistance of counsel in presenting another unpreserved error. In

sum, on these facts defendant has not shown a reasonable probability that but for appellate

counsel's purported error the result on direct appeal would have been different.

¶ 31 Defendant next argues that appellate counsel “could have argued that trial counsel’s failure

to preserve the issue for review amounted to ineffective assistance of counsel.” Once again,

however, to succeed on such a claim appellate counsel would have had to demonstrate prejudice

resulting from any such ineffective assistance of trial counsel. Wheeler, 401 Ill. App. 3d 313. For

all the reasons discussed above, defendant has not shown a reasonable probability that the result

on direct appeal would have been different had this argument been raised.

¶ 32 Defendant’s final argument on appeal is that he was denied his statutory right to the

reasonable assistance of postconviction counsel when appointed counsel failed to support

defendant’s claims regarding trial counsel’s failure to contact Mendoza or present her testimony

by supplementing defendant’s petition with Mendoza’s affidavit. As defendant more specifically

contends:

“In this case, Cesar Camayo alleged that trial counsel was ineffective for failing to

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investigate a witness who would have testified that Camayo was at home with their child

at the time of the charged shooting. The record shows that an affidavit from that witness

was available to [counsel], but he inexplicably failed to attach it to Camayo’s petition. The

failure of [counsel] to obtain and attach available evidence in support of the petition’s

claims, accordingly, deprived Camayo of his right to the reasonable assistance of counsel.”

¶ 33 Under the Act, counsel appointed at the second stage must provide a reasonable level of

assistance. People v. Suarez, 224 Ill. 2d 37, 42 (2007). To provide a reasonable level of assistance,

Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), provides that postconviction counsel: (1)

consult with defendant—either by mail or in person—to ascertain his claims of deprivation of

constitutional rights; (2) examine the trial record; and (3) amend the pro se petition where

necessary for an adequate presentation of defendant's contentions. Suarez, 224 Ill. 2d at 42.

Postconviction counsel's compliance with Supreme Court Rule 615(c) is mandatory and generally

shown by the filing of a certificate averring to such performance. People v. Perkins, 229 Ill. 2d 34,

50 (2007).

¶ 34 The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that

postconviction counsel provided reasonable assistance during second-stage proceedings under the

Act. People v. Jones, 2011 IL App (1st) 092529, ¶ 23. The burden is on the defendant to overcome

this presumption by demonstrating that postconviction counsel failed to substantially comply with

the duties imposed by Rule 651(c). Jones, 2011 IL App (1st) 092529, ¶ 23. The presumption of

compliance may be rebutted by the record. People v. Marshall, 375 Ill. App. 3d 670, 680 (2007).

Where postconviction counsel fails to comply with the requirements of Rule 651(c), the proper

remedy on appeal is to remand for further postconviction proceedings. See Suarez, 224 Ill. 2d 47

(recognizing that our supreme court “has consistently held that remand is required where

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postconviction counsel failed to fulfill the duties of consultation, examining the record, and

amendment of the pro se petition, regardless of whether the claims raised in the petition had

merit.”). Our review of postconviction counsel's compliance with Rule 651(c) is de novo. Jones,

2011 IL App (1st) 092529, ¶ 19.

¶ 35 First, we agree with the State that a rebuttable presumption that postconviction counsel

provided reasonable assistance during the second-stage proceedings below was created by the

filing of a Rule 651(c) certificate. Jones, 2011 IL App (1st) 092529, ¶ 23. Second, we also conclude

that defendant failed in his burden to overcome that presumption.

¶ 36 “Fulfillment of the third obligation under Rule 651(c) does not require postconviction

counsel to advance frivolous or spurious claims on defendant's behalf. If amendments to a pro se

postconviction petition would only further a frivolous or patently nonmeritorious claim, they are

not ‘necessary’ within the meaning of the rule.” People v. Greer, 212 Ill. 2d 192, 205 (2004);

People v. Pendleton, 223 Ill. 2d 458, 472 (2006) (same). Here, defendant specifically contends that

postconviction counsel improperly failed to support defendant’s claims regarding trial counsel’s

failure to contact Mendoza or present her alibi testimony by supplementing defendant’s petition

with Mendoza’s affidavit, in which she averred that defendant was at home with their child at the

time of the shooting.

¶ 37 However, an “alibi” is “ ‘[a] defense based on the physical impossibility of a defendant's

guilt by placing the defendant in a location other than the scene of the crime at the relevant time.’

” People v. Mullins, 242 Ill. 2d 1, 24 (2011), quoting Black's Law Dictionary 84 (9th ed.2009).

Mendoza’s affidavit cannot support such a defense, however, where she merely averred that she

left defendant at home to watch their newborn baby and a four-year-old boy around 12:45 p.m. on

the date of the charged incident and did not arrive home until after the shooting at 4:15 p.m.

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Mendoza was therefore completely unable to testify as to defendant’s exact whereabouts at the

time of the shooting. As such attaching this affidavit to defendant’s postconviction petition would

therefore only further a frivolous or patently nonmeritorious claim, doing so was not “necessary”

within the meaning of the Rule 651(c). Greer, 212 Ill. 2d at 205. We therefore conclude that the

presumption created by the filing of the Rule 651(c) certificate remains, and defendant’s argument

on appeal must be rejected.

¶ 38 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 39 Affirmed.

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