People v. Rodriguez

2024 IL App (1st) 210907-U

No. 1-21-0907

THIRD DIVISION
March 13, 2024

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 DISTRICT

)
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
) No. 04 CR 18035
v. )
) Honorable
JUAN RODRIGUEZ, ) Diane Gordon Cannon,
) Adrienne E. Davis,
Defendant-Appellant. ) Judges, Presiding

JUSTICE D.B. WALKER delivered the judgment of the court.
Justices Mikva and Van Tine concurred in the judgment.

ORDER

Held: We affirm the circuit court’s order denying defendant relief on his postconviction
petition. We correct the mittimus to reflect that defendant’s 6-year sentence for aggravated
battery with a firearm and 5-year sentence for aggravated discharge of a firearm are to run
concurrently with one another, and consecutively with his 21-year sentence for first-degree
murder.

¶1 Defendant Juan Rodriguez appeals from the Circuit Court of Cook County’s order

denying him the relief requested in his post-conviction petition. Following a jury trial,

defendant was convicted of first-degree murder, aggravated battery with a firearm, and
 No. 1-21-0907

aggravated discharge of a firearm in connection with the August 11, 2004 murder of David

Reyes and shooting of Rosendo Diaz. Defendant filed an initial post-conviction petition on

August 29, 2013. After revision, defendant’s post-conviction petition alleged that he was

actually innocent, multiple constitutional violations, and an error in sentencing. The circuit

court conducted a third-stage evidentiary hearing and subsequently denied the petition.

Defendant asserts on appeal that the circuit court erred in denying him a new trial and that

the resentencing court erred in determining his sentence. We affirm the circuit court’s

decision and correct the mittimus.1

¶2 I. BACKGROUND

¶3 A. Undisputed Facts

¶4 It is undisputed that at about 12:30 a.m. on June 27, 2004, a black pickup truck traveling

westbound on 59th Street arrived at the intersection with Pulaski Road and stopped a few

car-lengths back from the traffic light there. The truck was driven by Dean Valera. Riding in

the cab were Ernest Villa in the passenger seat and Virginia Rojas in the middle. Seated in

the bed of the truck were Rosendo Diaz, David Reyes, Raul Rivera, and Luis Torres.

Everyone in the truck except Rojas was a member of the Satan Disciples gang. The truck’s

position three or four car-lengths from the intersection placed it in front of a yard where four

Hispanic males were standing. The men in the yard were Shaid Frausto, Juan Garcia, Saul

Herrera, and defendant. The two groups exchanged words, gang signs, and gang slogans, as it

became apparent that the men in the yard were members of a rival gang, the Saints. At some

point during this exchange, someone in the yard discharged a firearm multiple times.

1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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Rosendo Diaz was struck in the cheek, while David Reyes was struck in the back and killed.

Beyond these core facts, the facts of this case are largely disputed.

¶5 B. Pretrial

¶6 Defendant moved to suppress Torres’ lineup identification. At a pretrial hearing on the

motion, defendant asserted that he was the only member of the lineup that matched the

description of “long hair, male Hispanic, with a tear drop” and therefore the lineup was

impermissibly suggestive. The State argued in response that the participants in the lineup

were made to wear handkerchiefs “so that the hair for the most part was covered,” and that

the participants were all of approximately the same height and age. The State asserted that

the teardrop was “one of the least noticeable things about everybody in that lineup.”

Defendant argued in response that the fact that even those witnesses who were unable to give

a description picked defendant demonstrates that his teardrop tattoo rendered the lineup

impermissibly suggestive. The trial court concluded that the lineup was not “overly

suggestive” and denied the motion.

¶7 C. Trial

¶8 The State argued at trial that defendant was the shooter, while defendant asserted that it

was Juan Garcia who fired the shots that night.

¶9 1. Luis Torres

¶ 10 Torres testified that he had attended a block party earlier in the night with Diaz, Villa,

and Valera. After leaving that party, the four went and picked up Reyes and Rivera, followed

by Rojas. Torres believed that only Villa had begun drinking before the group left the block

party. The group of seven was heading to a club when they stopped at the intersection of 59th

and Pulaski. Torres testified that four or five men were gathered near a car parked on the

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street on the passenger side of the truck, including defendant, who he noted to have had long

hair at the time. Those men initiated the exchange by “[throwing] down the pitchfork,” which

is to say displaying the symbol of the Satan Disciples upside-down to show disrespect. An

exchange of gang signs and slogans followed.

¶ 11 Torres testified that after the initial exchange ended, defendant “yelled something” and

ran into the gangway beside the house in front of which the group had been standing. Torres

lost sight of defendant. During that time, the exchange of “yelling and hand signs” continued

and a “bald headed gentleman came out” and began yelling at the people in the truck to not

cause any problems. Torres testified that he was trying to tell the bald-headed man that they

were leaving, at which time defendant returned to the yard and Torres heard the first gunshot.

Torres stated: “I looked towards him again and I just seen sparks coming.” Torres saw the

sparks from in front of defendant while defendant had his hands extended forward and held

together in front of him. Immediately after this first gunshot, Torres felt glass hit his elbow,

and he ducked down into the bed of the truck as the truck sped away.

¶ 12 As the truck was leaving the area, Torres noticed that Diaz was bleeding from his cheek

and Reyes was slumped over, unresponsive, and bleeding from the back. As they were

fleeing, Torres noticed a police car in pursuit with its emergency lights activated. Valera

pulled the truck over and a plain clothes officer approached with his weapon drawn. The

occupants of the truck explained that their friends had been shot and the officer called for

backup. Two of the officers went back with Torres to the house where the shooting took

place. Upon seeing defendant, Torres identified him as the shooter. Torres confirmed that

defendant was the only long-haired individual present when he and the police returned, as

well as the only individual present with a teardrop tattoo. Torres went with the police to the

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police station and viewed a lineup, in which he identified two of the five individuals in the

lineup, defendant and Alexea Gutierrez, the so-called “bald headed man” who had asked the

people in the truck not to cause trouble. Later testimony from Detective Michael Hughes

established that Torres identified a third individual in the lineup, Herrera, as present in the

yard at the time of the shooting. Torres was also shown an array of photographs in which he

identified Garcia as one of the people in the group on the sidewalk. Torres testified that he

had not seen any of the three identified individuals holding a gun, but had only seen sparks

coming from in front of defendant’s hands at the time of the shooting.

¶ 13 Torres testified on cross-examination that he had been told by someone that a King (a

rival gang member) with long hair and a teardrop tattoo lived at the house where the shooting

unfolded. Torres also stated that after he and others from the truck were at the police station,

they were put in a room together. Torres testified on redirect examination that he did not

speak with anyone else in the truck about the identity of the shooter in the time between

when the truck sped away and when he viewed the lineup and photo array.

¶ 14 2. Virginia Rojas

¶ 15 Rojas, who was seated in the cab of the truck, also testified that the truck arrived at the

light, four or five men were standing in the yard, and an argument ensued. She saw

defendant, whom she recognized from meeting him once previously at a party, coming from

the gangway next to the house where the truck was stopped. Valera then pushed Rojas down

in her seat and she heard three gunshots. Rojas picked the defendant out of a lineup on the

night of the shooting and also identified defendant in court as the person she saw coming into

the front yard from the side of the house just before she heard shots.

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¶ 16 3. Rosendo Diaz

¶ 17 Diaz, who was in the back of the truck, testified similarly to Torres as to the events

leading up to the verbal confrontation and the content of the confrontation. Diaz identified

defendant in court as one of the people he saw in the yard. He saw defendant run in the

direction of the gangway beside the house. He said an older man was present and was yelling

that he did not want trouble. Diaz stated that while the older man was yelling, he felt his face

get very warm on the left side. Diaz confirmed that although he could not recall it clearly at

the time of his testimony, he did previously testify to a grand jury that he saw defendant with

his hand under his shirt at his waist, as if to draw a weapon, though he never saw a gun. He

realized he was bleeding and heard “like four” gunshots as the truck sped away. After the

truck was stopped by the police, Diaz was taken to the hospital by ambulance. He was later

taken to Chicago Police Department’s Area 1 with the others from the truck. Diaz confirmed

that all of the people from the truck were placed in the same room and had an opportunity to

talk about what happened before the lineup occurred. He denied, however, that anyone

discussed the shooter’s name, clothing, hairstyle, tattoos, description, or identity prior to the

lineup. Diaz identified defendant in the lineup as the person who ran toward the gangway. He

identified Gutierrez as also present.

¶ 18 4. Ernest Villa

¶ 19 Villa, who was sitting in the passenger seat of the truck, testified similarly to Torres

about the events leading up to the arrival of the truck at the intersection of 59th and Pulaski.

He testified that while the truck was at the light, he glanced over and saw four or five men in

the yard next to the truck. After he stopped looking in that direction, he heard arguing and a

bottle breaking behind him, followed by gunshots. The truck pulled away and was pulled

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over shortly afterward, at which point he saw that Reyes and Diaz had been shot. Villa made

no identifications.

¶ 20 5. Sergeant David Berglind

¶ 21 Sergeant David Berglind testified that at the time of the shooting, he was in plain clothes

in an unmarked police car stopped facing southbound at the intersection of Pulaski and 59th.

While stopped at the intersection, he heard gunfire to his left and saw the “reflection of

muzzle fire” before seeing “a dark pickup truck leave the scene quickly as the light was

changing heading westbound on 59th Street.” Berglind’s testimony from this point

corroborated Torres’ testimony: he pursued the truck, ascertained the situation, and having

identified Torres as a cooperative witness, held him to the side until another car arrived.

¶ 22 6. Officer Robert Marshall

¶ 23 Officer Robert Marshall testified that he arrived at the scene where Officer Berglind had

stopped Valera’s truck after Officer Berglind put out a “shots fired” call. Officer Marshall

subsequently left the scene with Torres and two other officers to return to the location where

the shooting had taken place in search of the shooter, who Torres had described as having

“longer black hair with a teardrop under his left eye.” Upon arriving at the house in front of

which the shooting took place, Marshall and the other officers went to the back yard and

conducted field interviews with those present, none of whom had long hair or a teardrop

tattoo. While the officers were conducting those interviews, defendant emerged from the

back door of the house and was placed under arrest.

¶ 24 7. Officer Mark Cunningham

¶ 25 Officer Mark Cunningham testified that he was one of the officers who responded to the

call from Berglind. He was sent to Christ Hospital with Reyes and Diaz, who were shot. He

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was able to speak with Diaz. Though he did not testify as to the content of their conversation,

Cunningham stated that after the conversation, he advised his fellow officers to be on the

lookout for “a male Hispanic with a teardrop underneath his left eye and long hair, a male

Hispanic bald headed, and a male Hispanic with glasses.”

¶ 26 8. Detective Michael Hughes

¶ 27 Detective Michael Hughes testified that he was assigned to investigate the case and was

in the room with the witnesses that morning as they viewed the lineup. He testified that the

individuals in the lineup were all men who had been brought from the scene of the crime.

Torres identified defendant as the shooter, as well as Gutierrez and Herrera as individuals

present at the scene. Rojas identified defendant as the person she saw running toward the

truck from the gangway. Diaz identified defendant as the person holding the gun. Villa did

not identify anyone. Rivera and Valera also viewed the lineup, but Hughes gave no testimony

as to whether they identified anyone or not.

¶ 28 On cross-examination, Hughes testified that the individuals in the lineup were dressed in

do-rags and similar clothing in the lineup. He stated that although he did not make the choice

to put them in do-rags for this lineup, it was a procedure he would regularly use when the

individuals in the lineup had differing hair lengths.

¶ 29 9. Ellen Connolly

¶ 30 The parties established via stipulation that a gunshot residue test was conducted on

defendant’s hands at about 2:00 a.m. on the day of the shooting. Testimony from forensic

scientist Ellen Connolly established that defendant tested positive for gunshot residue on his

left hand and while he had residue on his right hand, the amounts were insufficient to

constitute a positive result. Connolly testified that residue could indicate that an individual

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fired a firearm, that they were within about three feet to either side or within eight feet in

front of a firearm when it discharged, or that the person came into contact with a surface that

had gunshot residue on it.

¶ 31 10. Martin Rodriguez

¶ 32 Martin Rodriguez (Martin), defendant’s father, testified that on the night of the shooting,

he was at his home, where the shooting took place and where defendant also lived. Martin

and Gutierrez were in the backyard. Martin was aware that defendant had friends over,

namely Frausto, Garcia, and Herrera. After midnight, defendant, Frausto, Garcia, and Herrera

left through the front door and proceeded toward Garcia’s car, which was parked at the curb.

Martin testified that a dark-colored pickup truck carrying about six people passed in front of

the house and the people in the truck started yelling “gang words” back and forth with the

four men in the front yard. Gutierrez went to the front yard, got in between the two arguing

groups, and yelled at those in the truck that he did not want any problems.

¶ 33 As Martin was walking to the front yard, he saw one of the men in the truck push Garcia.

Garcia then ran to the trunk of the car parked at the curb, retrieved a gun, and fired four shots

at the people in the truck. As Garcia shot, “everyone started running toward the back,”

including defendant. Afterward, both Garcia and defendant ran into the house. Martin and

defendant both told Garcia to leave. Garcia left with the gun still in his hand. Martin was

talking to Gutierrez in the back yard, asking him what happened and why there was shooting,

when the police arrived about five minutes later. The police told those in the yard, consisting

of Martin, Frausto, and Gutierrez, not to move, and had them stand against the wall of the

garage. Martin testified: “[The police] put us against the garage and they didn’t let us say

anything. He said, shut the fuck up.” The police then brought Herrera and defendant from

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inside the home and lined them up as well. A civilian was brought into the back yard and

identified defendant, Frausto, and Herrera. Defendant, Frausto, and Herrera were then

arrested and removed from the yard. The police searched the house for an additional half an

hour and then departed. Martin was not asked about any interview that may have occurred

the morning of the shooting, but testified that he went to the police station around 5:00 p.m.

the same day to speak with detectives and gave them all of the same information contained in

his testimony.

¶ 34 On cross-examination, Martin testified that Garcia was about four feet away from

Gutierrez and defendant when he fired the first shot, and that he did not see, but only heard

the other three shots. When the police arrived, Martin did not say anything to them about

Garcia being the shooter or anything else about what had happened because the police yelled

at them to not speak.

¶ 35 11. Alexea Gutierrez

¶ 36 Gutierrez’s testimony was largely consistent with Martin’s. Gutierrez testified that after

the two groups had been yelling at one another and he had arrived to tell the men in the truck

to leave, those in the back of the truck jumped out of the truck. One of the men from the back

of the truck “ripped off the chain of Juan Garcia.” At that point in time, defendant ran back

toward the back of the house. Garcia then produced a gun from the trunk of his car.

Defendant attempted to return to the front yard, but Gutierrez did not let him pass. Garcia

began “shooting shots like crazy.” Gutierrez ran to the back yard. Gutierrez testified

consistently with Martin that the police arrived soon after and would not let them speak.

¶ 37 On cross-examination, Gutierrez testified that when the groups were arguing, they were

all in front of him and he was not in fact separating the groups from one another. He stated

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that he was still at the curb, but backing toward the back yard, along with “everybody else,”

and pulling out his phone to call the police when Garcia started shooting. He testified that

defendant, Herrera, and Martin were all three attempting to come to the front just before and

as Garcia started shooting, but that Gutierrez physically held them back and warned them not

to come out. Gutierrez also stated that he was only telling them to stay back and was not

physically blocking them. Gutierrez testified that the first shot was fired from behind

Garcia’s car and then Garcia “passed right in front of” him. After the shooting, Martin,

Gutierrez, defendant, Frausto, Garcia, and Herrera were in the back yard. Martin yelled at

Garcia to leave, and Garcia left with the gun in hand.

¶ 38 After the shooting, around 3:45 a.m., Gutierrez spoke to police at the station, but did not

name Garcia as the shooter. When confronted with whether Gutierrez had told the police a

different story about hearing shots and seeing defendant run into the house, he stated that he

had given that information to police, but it was because he was scared, stating: “they were

gang members. I was panicking.”

¶ 39 On redirect examination, Gutierrez testified that Garcia tried to hand off the gun to

defendant, but defendant did not take it from him. Gutierrez did not specify where this

attempt to hand off the weapon took place.

¶ 40 12. Defendant Juan Rodriguez

¶ 41 Defendant took the stand in his own defense. He testified to the same events leading up to

the shooting that Martin described. When defendant and his friends were standing by

Garcia’s car, the dark truck passed by and stopped in front of the house. Defendant testified

that one of the men in the back of the truck, who wore a basketball jersey, yelled to “get the

guy with the teardrop,” at which point defendant ran toward the gangway next to the house.

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When defendant reached the gangway, he encountered Gutierrez, who, after defendant

informed him about what was going on, continued toward the front. Defendant stated that he

returned to the front yard seconds later. Upon returning to the front yard, he saw Gutierrez

yelling at those in the truck. The man in the jersey and one other in the back of the truck

jumped out of the truck. The other man started walking toward defendant, but turned and

started to return to the truck after Gutierrez physically blocked his way. The man in the

jersey approached Garcia and “snatch[ed] something off his neck.” Garcia then went to the

trunk of his car and retrieved a gun. Garcia ran past defendant and Gutierrez and fired one

shot. Defendant began to back away and, once he saw Garcia run toward the street, he turned

and ran toward the gangway. Defendant heard additional shots as he ran to the back yard.

¶ 42 All of the others from the front yard arrived in the back yard shortly thereafter. Defendant

told Garcia to leave. Garcia attempted to hand off the gun to defendant, “pushing it toward

[him].” Defendant refused and pushed the gun away with his hand. Garcia went into the

house to the basement and defendant followed. Garcia again tried to hand off the gun,

defendant again pushed it away with his hand. Garcia left and defendant did not see where he

went. The police arrived shortly thereafter, entered the home, and arrested defendant.

¶ 43 On cross-examination, defendant denied that any of the men in the front yard yelled at the

men in the truck or made any sort of gang representations. Defendant testified that when

Garcia began shooting, defendant was standing next to Gutierrez with no others nearby.

When questioned as to Frausto’s whereabouts and Herrera’s whereabouts at that moment, he

stated that he did not remember. Defendant’s testimony on what he told police after being

taken to the police station was mixed. He stated that he told them what happened, but they

did not want to listen. Then he stated he did not tell the officers questioning him that Garcia

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was the shooter. He stated that he was not aware that he was being charged at that time and

that he did not want to get Garcia in trouble. On redirect examination, he stated that he

initially withheld the truth because he did not want to get Garcia in trouble, but later told the

officers about Garcia’s involvement.

¶ 44 13. Detective Jean Romic

¶ 45 Detective Jean Romic testified that on the day of the shooting, she spoke with Martin and

Gutierrez, and in neither conversation did they mention various specific details included in

the version of events that they testified to at trial. On cross-examination, Romic testified that

Martin did state that Garcia was the shooter at the time of her interview with him.

¶ 46 14. Detective John Yniguez

¶ 47 Detective John Yniguez testified that he was present during Romic’s interview with

defendant and worked on the case with Romic and a third detective, Michael Hughes. During

the interview, defendant did not state that he saw Garcia shoot at the truck. Neither did

defendant state that Garcia attempted to pass the gun off to him. Yniguez further stated that

he did not subsequently learn from any source that defendant had made statements

implicating Garcia as the shooter or asserting that Garcia attempted to hand off the gun to

him.

¶ 48 15. Nicole Tewell

¶ 49 Nicole Tewell testified that she is defendant’s half-sister and was watching television in

the front room of the house at the time of the shooting. She was alone in the house and heard

gunshots outside. She testified that the house also contained two dogs that would bark when

non-family members entered the house alone, including Garcia. She testified that about five

minutes after the gunshots, she heard the back door open, but she did not hear anyone

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descend into the basement, nor did she hear the dogs bark. After she heard the back door

open, defendant and Herrera entered the room and sat down on the sofa. On cross-

examination, Nicole stated that she does not remember where the dogs were while she was

watching television, and that it was normal to lock the dogs in one of the rooms of the house

at times.

¶ 50 16. Conviction

¶ 51 Following closing arguments and deliberation, the jury found defendant guilty of first-

degree murder and both counts of aggravated battery with a firearm. Defendant was

sentenced to 50 years’ imprisonment for first-degree murder, six years’ imprisonment for

aggravated battery with a firearm, and six years’ imprisonment for aggravated discharge of a

firearm to be served consecutively, for a total of 62 years’ imprisonment. Defendant

appealed.

¶ 52 D. Direct Appeal

¶ 53 Defendant filed a direct appeal that this court heard in People v. Rodriguez, 408 Ill. App.

3d 782 (2011). In that appeal, defendant argued (1) that he was denied his right to a fair and

impartial jury because the trial court failed to appropriately question the prospective jurors;

(2) that the evidence presented was insufficient to support his conviction; (3) that the trial

court erred in denying his motion in limine to bar the State from introducing defendant’s

juvenile adjudication for impeachment purposes; (4) that the trial court deprived him of a fair

trial when it provided a certified copy of defendant’s juvenile adjudication to the jury, but not

copies of the convictions of the State’s witnesses; (5) that his mittimus should be corrected to

reflect four additional days of sentencing credit and a single conviction of first degree

murder. Id. This court agreed with defendant regarding the mittimus and adjusted it

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accordingly. Id. This court otherwise affirmed the trial court’s judgment. Id. One justice

dissented, asserting that the trial court erred by allowing the introduction of defendant’s

juvenile adjudication. Id.

¶ 54 Our supreme court exercised its supervisory authority to direct this court to vacate and

reconsider its judgment in light of People v. Villa, 2011 IL 110777, to determine if another

result was warranted. People v. Rodriguez, 960 N.E. 2d 563 (2012). Villa concerned the

introduction of a juvenile adjudication for impeachment purposes. Villa, 2011 IL 110777.

This court found that the introduction of defendant’s juvenile adjudication was improper, but

that the introduction was harmless error. People v. Rodriguez, 2012 IL App (1st) 072758-

B, ¶ 59. The same justice again dissented, opining that he would find that the State did not

meet its burden to establish harmless error. Id. ¶ 84.

¶ 55 E. Post-Conviction Proceedings

¶ 56 On August 16, 2013, defendant filed a pro se post-conviction petition. After passing to

the second stage, defendant filed the amended post-conviction petition that is of concern in

this appeal on June 13, 2018. In his petition, defendant raised claims of actual innocence,

ineffective assistance of both trial and appellate counsel, multiple violations under Brady v.

Maryland, 373 U.S. 83 (1963), and that his sentence was unconstitutional under Miller v.

Alabama, 567 U.S. 460 (2012). The State answered the petition and it advanced to a third-

stage evidentiary hearing. The hearing commenced June 12, 2019, and testimony was heard

from seven witnesses.

¶ 57 1. Dr. Deryn Strange

¶ 58 Dr. Deryn Strange was called first to testify as an expert witness. Dr. Strange testified

that she was at that time a tenured professor at John Jay College of Criminal Justice, who

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worked primarily as a research psychologist focused on studying false memories and the

ways in which memories can be corrupted or distorted. Dr. Strange was offered as an expert

in the area of “reliability of eyewitness identification, specifically under the umbrella of

memory distortion.” Dr. Strange explained memory as a process that can be broken down

into three stages: encoding, storage, and retrieval.

¶ 59 Dr. Strange testified that there were a number of issues in this case that she believed

would cause issues with an accurate encoding of the event. First, the streetlights were likely

dim enough to interfere with the encoding process, and it is “simply improbable that

[defendant’s teardrop tattoo] could have been visualized from a distance given those lighting

conditions.” Second, in instances where there are multiple potential perpetrators, the attention

of a witness tends to be split and that leads to more mistakes in identification. Since there

were several men in the yard who were potential perpetrators, that likely affected the

witnesses’ identifications. Third, people who have had two or more drinks tend to narrow

their focus of attention such that they have poor recollection of information beyond “essential

details” and are more subject to outside suggestion regarding their memory after the fact.

Some of the witnesses had been drinking at the time of the shooting. 2 Fourth, stress tends to

further narrow focus to those things the individual needs to most focus on, for example a

weapon, “at the expense of peripheral information,” such as the face of the person holding

the weapon. In this case, the event being recalled was stressful. Fifth, a short period of

exposure to a face can lead to unreliable identification, and the events surrounding the

2
The testimony as to who had been drinking is mixed and conflicting. Diaz, Gutierrez, and
Martin all testified that they had imbibed alcohol near to the time of the shooting, though only
Diaz mentioned that he was significantly intoxicated. Villa stated that he and Valera drank “a
couple of beers” at a baseball game earlier in the day, but did not partake further as the evening
went on. Diaz stated that Torres, Valera, and Villa were also drinking, but did not recall how
much.
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shooting happened very quickly. Sixth, post-event information, such as discussing the event

with another witness after the event, can influence a witness’ recollection of the event and

lead to that witness being unable to distinguish between what they actually saw and what

they heard from the other witness. In this case, the witnesses in the truck were put in the

same room prior to making their identifications, so it is possible that each was exposed to

post-event information from the others during that time.

¶ 60 Dr. Strange identified a number of issues that she believed could have interfered with the

process of recollection in this case: First, feedback of any kind from the officers conducting

the lineup could have influenced the witnesses. Second, if any individual in the lineup stood

out from the others in any way, that would likely bias the witnesses. In this case, defendant

was the only member of the lineup with a teardrop tattoo, with visible hair and wearing the

clothing described by one of the witnesses. Third, if the lineup procedure was conducted by

an officer who believed they knew who the perpetrator was, that officer could, purposely or

not, lead witnesses to identify the person they believed to be the perpetrator. In this case, Dr.

Strange interpreted the affidavit provided by Joel De Luna, who was one of the men in the

lineup, to state that “it was the detectives who were pointing out the suspect.” Fourth, threats

from officers toward witnesses would impact the reliability of their identification of suspects.

¶ 61 Lastly, Dr. Strange testified that there is zero correlation between a witness’ confidence

that their identification is accurate and the actual accuracy of the identification. A witness’

pre-identification confidence that he or she can correctly identify the perpetrator can correlate

with accuracy if none of the previously-mentioned complications are present. Dr. Strange’s

ultimate conclusion is that one or more of the enumerated factors likely impacted the

witnesses’ identifications in this case. On cross-examination, Dr. Strange confirmed that she

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had only read the record and had not spoken to any of the witnesses in this case. Dr. Strange

confirmed that she cannot be certain that an error occurred here and that all of her testimony

regarded generalizations, not what was or was not actually witnessed in this case.

¶ 62 2. Saul Herrera

¶ 63 Herrera testified to his version of the events around the shooting. Herrera’s timeline of

events leading up to the arrival of the truck was largely in line with defendant’s testimony at

trial, aside from the fact that Herrera estimated that he left the house with defendant, Garcia,

and another individual at about 11:15 or 11:30. Herrerra testified that after the truck stopped

in front of the house, the people in the truck left the truck and approached Herrera and the

others in the yard. One of them said “that’s the dude with the teardrop.” At that point,

defendant ran toward the backyard and the same person who had mentioned the teardrop

“snatched something from Juan Garcia’s neck.” An older man, whom Herrera did not

recognize came to the front yard from an unspecified origin and attempted to defuse the

situation. Garcia ran to his vehicle, retrieved a handgun from the trunk, and shot “a couple of

times” toward the truck. After the shots were fired, Herrera ran to the backyard.

¶ 64 Per Herrera, after the shooting, defendant had returned to the front yard and Garcia

approached defendant “right by the front of the house on the sidewalk.” Garcia attempted to

give the firearm to defendant “to stash in the house.” Defendant pushed the firearm away

from himself and told him to leave with the firearm. Garcia ran to his car and drove away.

Police officers arrived within ten minutes and arrested “everybody who was in the house,”

including both defendant and Herrera. Herrera was placed in a lineup and later in an

interview room. He spoke with a detective in the interview room, but, when asked, could not

remember the race of that detective. The detective told him that someone had identified him

18
 No. 1-21-0907

as the shooter. Herrera testified that he told the detective that someone else had done the

shooting. He gave the detective a description, but no name for the shooter. He denied that

defendant was the shooter. The detective told him that if he did not cooperate by stating that

defendant was the shooter, he would “go down as the accessory to murder.”

¶ 65 Herrera also testified that police spoke to him again later that day when he was being

released. At that point, he signed a statement implicating defendant because he did not want

to be charged. Herrera was subsequently subpoenaed to testify at defendant’s trial. Prior to

trial, Herrera met with an attorney from the Cook County State’s Attorney’s Office in a

courtroom. He told that attorney that defendant was not the shooter. The attorney told him

that if he did not testify in accordance with his written statement, he would be “charged with

perjury and something else.” After hearing this, Herrera left the courtroom and did not return.

Herrera stated that he was eventually arrested later in 2004 and sentenced to two years in

prison for “perjury and contempt of court.” Years later, Herrera was contacted by a private

investigator who questioned him about the events of the shooting, prepared an affidavit, and

had Herrera read and sign it. 3

¶ 66 On cross-examination, Herrera testified that he grew up with defendant and went to

elementary school with him. He stated that the people in the truck did not immediately get

out, but “represented gang slogans” and then about four of the people in the truck got out.

When asked if he told the police that two people got out and started swinging at him, he

stated that he did not remember. When asked if he told the police that he did not actually see

who fired the gun, he stated that he did not remember. He estimated that the encounter lasted

7-8 minutes. After the shooting, defendant came back to the front yard and Garcia attempted

3
Although Herrera did not specify when he was approached by the investigator, his
affidavit was notarized on October 23, 2017.
19
 No. 1-21-0907

to give defendant the gun. When asked when it was that he learned that the person who

arrived at the house with Garcia that night was Garcia’s cousin, Herrera stated that he had not

ever learned that fact. Herrera confirmed that his affidavit stated that the person with Garcia

was Garcia’s cousin. The State also confirmed with Herrera that he had testified that four

people had jumped out of the truck, while his affidavit stated that only two jumped out of the

truck. Herrera confirmed that although his affidavit stated that “Garcia and the other guy

made contact with one another but I could not see exactly what happened,” he had testified

that one of the men from the truck had snatched something from Garcia’s neck. Herrera

stated on cross and on redirect that the events took place a long time ago and he had

difficulty remembering them. On re-cross examination, Herrera confirmed that the statement

he did not remember giving and the statement that he was forced to sign were in fact the

same statement.

¶ 67 3. Carlos Figueroa

¶ 68 Carlos Figueroa, who was the boyfriend of defendant’s half-sister, Nicole, at the time of

the shooting, testified that he was at the Rodriguez house on the night of the shooting. At

around midnight, Figueroa got in his truck, which was parked in the garage behind the house,

and drove to Jewel-Osco. He was accompanied by two passengers: Nicole’s sister, named

Natalie Rodriguez, and Adam Rodriguez, who is Nicole and defendant’s brother. Carlos

estimated they were gone from the house for about 25 minutes. Upon returning and opening

the garage, Carlos found that there was an unfamiliar car inside, which he later learned was

Garcia’s. Carlos’ passengers, Natalie and Adam, left the truck to approach the car, at which

point Garcia ran up to the side of the truck and told Natalie and Adam to get back in the

truck. Garcia seemed “very excited and nervous.” Adam refused and continued past Garcia,

20
 No. 1-21-0907

but Natalie got back into the truck. Garcia got into the back seat of the truck and told Carlos

“go, go, go.”

¶ 69 Carlos testified that Garcia told him and Natalie that he had gotten into an altercation and

that he believed he had shot and killed someone. Garcia showed the two of them a gun under

his shirt and told Carlos to take him to his house. Carlos complied and drove Garcia 10

minutes away, to Garcia’s home. Garcia told Carlos not to go anywhere and got out of the

truck. Garcia went behind the fence behind his house before returning to the truck. Garcia

told Carlos to return to the house and Carlos complied. Carlos “came around back to the

alleyway” and stopped to let Natalie out before proceeding to the corner and letting Garcia

out. Carlos drove the truck around and parked across the street in front of the house, where

he found there to be a number of police cars and police officers present. Carlos “informed [a

police officer] of the situation of what happened with Juan Garcia.” Carlos was not allowed

back in the home until defendant, Herrera, “another friend,” and Nicole were handcuffed and

taken away. Carlos testified that he spoke to defendant’s attorney at defendant’s home some

day after the incident and during that interview, he gave the attorney the same information

contained in his testimony. He stated that he was never called to testify.

¶ 70 On cross-examination, Carlos testified that when Garcia initially approached the truck, he

had come from the back gate of the backyard. Carlos confirmed that the affidavit that he

wrote himself in 2013 stated that after driving Garcia to his home, Carlos drove away. Carlos

stated that he “did not put that part in.” Carlos also confirmed that his written affidavit

contained a number of additional details about what Garcia told him after entering his truck.

The affidavit states that after getting into the truck, Garcia stated:

21
 No. 1-21-0907

“[S]ome guys jump out a car and jump him and ripped off his chain and that they

were fighting and then he went to the back of his vehicle trunk (which at that time

was in front of [defendant’s house]) pulled a [g]un from his trunk and started shooting

at the people who had attacked him and that he believed that he had shot and killed

somebody.”

Garcia then threatened Carlos and Natalie after telling them that he had shot someone,

stating: “just drive me to my house and no one gets hurt.” Carlos attested in the affidavit that

he drove away after dropping Garcia off at his house, then returned to defendant’s house and

parked in front of it.

¶ 71 4. Natalie Rodriguez

¶ 72 Natalie testified in line with Carlos’ testimony up to the point when Garcia was in the

back seat of the truck. She stated that Garcia told them that “some guys jumped out of a

vehicle and one of them took his chain so he got a gun and he shot at them.” Natalie’s

additional testimony about the time Garcia was in the truck up to when she got out of the

truck matched Carlos’ testimony. Natalie entered the backyard and found police officers

arresting her family members. An officer instructed Natalie to sit and be quiet. A man came

into the backyard with police officers and was instructed to identify the shooter. When the

man identified defendant, Natalie stood up and said “no, it wasn’t him, it wasn’t him.”

Natalie was again told to sit down and be quiet.

¶ 73 Natalie testified that she spoke with defendant’s attorney and gave him the same

information contained in her testimony. She was not called to testify at trial. She denied that

defendant’s attorney had ever told her he did not believe her but stated that it did feel like he

did not believe her. Defendant asked Natalie some time around 2013 or 2014 to write an

22
 No. 1-21-0907

affidavit and she did so. She stated that no one told her what to include and that she wrote the

affidavit personally.

¶ 74 On cross-examination, Natalie stated that, at her parents’ request, she never spoke with

police about the events of that night. When shown exhibits depicting defendant and Garcia as

they appeared at the time of the shooting, Natalie agreed that they looked nothing alike and

indeed looked like exact opposites of one another. Natalie stated that when Garcia was in the

truck, he never mentioned killing anyone. She confirmed that when she, Carlos, and Garcia

left to go to Garcia’s home, the garage door was open, but it was closed when they returned.

¶ 75 When questioned by the circuit court on her discussion with defendant’s attorney, Natalie

stated that defendant’s attorney told her that he was not going to call her as a witness because

she was related to the defendant and therefore the jury would not believe her.

¶ 76 5. Adam Rodriguez

¶ 77 Adam Rodriguez testified consistently with Carlos and Natalie regarding the events

leading up to encountering Garcia. Adam stated that Garcia was tucking something black

with a handle under his shirt when he approached the truck. Adam entered the house and was

there 5 to 10 minutes before police arrived. At some unspecified point in time, Adam told

family members about what he had seen, and they told him not to worry, because they would

hire a lawyer. Adam told defendant’s lawyer what happened but was never called to testify.

On redirect examination, Adam stated that the item he had seen Garcia holding was a gun.

When further questioned by the circuit court and defendant, Adam stated that although he

only saw the handle, it looked like a gun handle, and he deduced that the item he had seen

was a gun.

23
 No. 1-21-0907

¶ 78 6. Mike Gillespie

¶ 79 Mike Gillespie, defendant’s trial attorney, testified that he did in fact represent defendant,

but had little to no specific recollection of the events of his representation. Gillespie testified

that he did not remember if he told defendant that he could file a motion for substitution of

judge, but it is his standard procedure to inform his clients of their rights. He stated that he

did not have the file from defendant’s trial. He stated that it was his assumption that he had

thrown it out, as it is his practice to do so after keeping the file for the mandated period of

years. He stated that he made no personal effort to interview any of the State’s witnesses, but

he would have had an investigator attempt to talk to them. Gillespie stated that it appeared

based on his answer to discovery that he identified four witnesses that he might have called

in support of defendant’s defense, including Natalie Rodriguez and Adam Rodriguez.

Gillespie had no specific recollection but assumed that if their names were on the list, he

would have spoken to them. He did not recall which witnesses he called or did not call but

agreed that the record provided an accurate representation of who was called. He did not

recall why he did not call Carlos, Natalie, or Adam, but assumed that if he did not call them,

it was because their testimony did not support his theory of defense. Gillespie testified that if

anyone had said they saw someone else do the shooting, he would have called that witness.

He stated that he would have put names on the list based on somebody telling him they knew

something about the case.

¶ 80 7. Defendant Juan Rodriguez

¶ 81 Defendant testified that Gillespie spoke to him about the possibility of calling Natalie,

Adam, and Carlos at trial and that he expected Gillespie to call them.

24
 No. 1-21-0907

¶ 82 8. Postconviction Court Order

¶ 83 On February 18, 2020, the circuit court entered an order denying defendant’s post-

conviction petition. Regarding defendant’s actual innocence claim, the circuit court found

that Herrera’s testimony was not new, was cumulative, was not sufficiently conclusive, was

impeachable, and was not credible. The circuit court found that Dr. Strange’s testimony was

not sufficiently conclusive and, further, went to the issue of reasonable doubt rather than

presenting evidence of actual innocence. The circuit court found defendant’s Brady claim

based on Herrera’s testimony to be immaterial and to not represent a reasonable probability

that the withheld evidence would have changed the outcome of the case.

¶ 84 The circuit court found that defendant failed to establish that defendant’s trial counsel’s

representation fell below an objective standard of reasonableness or prejudiced defendant.

The circuit court found that defendant’s claim that his appellate counsel was ineffective for

failing to appeal the trial court’s denial of his pre-trial motion to suppress also failed to meet

defendant’s burden. Lastly, the circuit court declined to consider defendant’s Miller claim,

stating that the claim was filed in a supplement to the post-conviction petition for which

defendant never sought leave and that had not been answered or fully heard before the court.

In the same order, the circuit court denied defendant leave to supplement or amend the

petition with additional claims.

¶ 85 On April 9, 2020, defendant filed a motion for reconsideration regarding the denial of his

Miller claim. The State agreed to a new sentencing hearing and the circuit court granted the

motion for reconsideration on August 6, 2020. A resentencing hearing was held June 8, 2021.

On July 14, 2021, the resentencing court sentenced defendant to 21 years’ imprisonment for

first-degree murder, 6 years’ imprisonment for aggravated battery with a firearm, and 5

25
 No. 1-21-0907

years’ imprisonment for aggravated discharge of a firearm, all to run consecutively for a total

of 32 years’ imprisonment.

¶ 86 On July 16, 2021, defendant timely appealed, and this appeal follows.

¶ 87 II. ANALYSIS

¶ 88 Under section 122-1 of the Post-Conviction Hearing Act (the Act), an individual serving

a term of imprisonment may institute a proceeding pursuant to the Act asserting that “in the

proceedings which resulted in his or her conviction there was a substantial denial of his or

her rights under the Constitution of the United States or of the State of Illinois or both.” 725

ILCS 5/122-1 (West 2012). Postconviction petitions are subject to three stages of review

before the circuit court. People v. Domagala, 2013 IL 113688, ¶ 32. “First, the circuit court

may dismiss postconviction petitions that are frivolous or patently without merit.” (Internal

quotation marks omitted.) Id. “If the circuit court does not dismiss the petition, it advances to

the second stage. At the second stage, counsel may be appointed to an indigent defendant and

the State may file a motion to dismiss or an answer to the petition.” Id. ¶ 33. “At this stage,

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

make a substantial showing of a constitutional violation.” (Internal quotation marks omitted.)

Id. “If the petitioner makes the requisite substantial showing that his constitutional rights

were violated, he is entitled to a third stage evidentiary hearing.” Id. ¶ 34. “At such a hearing,

the circuit court serves as the fact finder and, therefore, it is the court’s function to determine

witness credibility, decide the weight to be given testimony and evidence, and resolve any

evidentiary conflicts.” Id. “At this stage, the circuit court must determine whether the

evidence introduced demonstrates that the petitioner is, in fact, entitled to relief.” Id.

26
 No. 1-21-0907

¶ 89 Defendant asserts that the circuit court erred in several ways in its final order denying

relief following a third-stage evidentiary hearing. Defendant states that the circuit court

erred: (1) when it declined to grant defendant a new trial based on his actual innocence

claims, particularly with regard to the testimony of Herrera and Dr. Strange; (2) when it

denied defendant relief based on his Brady claim regarding Herrera’s testimony; (3) when it

found that defendant failed to establish that trial counsel’s representation fell below an

objective standard of reasonableness; and (4) when it found that defendant failed to carry his

burden to establish that appellate counsel was ineffective. Defendant also argues that the

resentencing court erred when it ordered that defendant’s terms of imprisonment all run

consecutively to one another.

¶ 90 A. Standard of Review

¶ 91 “When a petition is advanced to a third-stage evidentiary hearing, where fact-finding and

credibility determinations are involved, we will not reverse a circuit court’s decision unless it

is manifestly erroneous.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006). A decision is

manifestly erroneous “if the court committed an error that is clearly evident, plain, and

indisputable.” (Internal quotation marks omitted.) People v. Eubanks, 2021 IL 126271, ¶ 47.

If no fact-finding or credibility determinations are necessary at the third stage, “i.e., no new

evidence is presented and the issues are pure questions of law, we will apply a de novo

standard of review, unless the presiding judge has some ‘special expertise or familiarity’ with

the trial or sentencing of the defendant and that ‘familiarity’ has some bearing on disposition

of the postconviction petition.” Pendleton, 223 Ill. 2d at 473 (citing People v. Caballero, 206

Ill. 2d 65, 87-88 (2002)). “A de novo review entails performing the same analysis a trial

court would perform.” Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

27
 No. 1-21-0907

¶ 92 B. Actual Innocence

¶ 93 “[I]n order to succeed on a claim of actual innocence, the defendant must present new,

material, noncumulative evidence that is so conclusive that it would probably change the

result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96 (citing People v. Washington,

171 Ill. 2d 475, 489 (1996)). “New means the evidence was discovered after trial and could

not have been discovered earlier through exercise of due diligence.” Id. “Material means the

evidence is relevant and probative of the petitioner’s innocence.” Id. “Noncumulative means

the evidence adds to what the jury heard.” Id. “And conclusive means the evidence, when

considered along with the trial evidence, would probably lead to a different result.” Id.

“[T]he sufficiency of the State’s evidence to convict beyond a reasonable doubt is not the

determination that the trial court must make.” Id. ¶ 97. “Probability, not certainty, is the key

as the trial court in effect predicts what another jury would likely do, considering all the

evidence, both new and old, together.” Id.

¶ 94 1. Freestanding Nature of the Claim

¶ 95 The State argues that defendant’s actual innocence claim must be rejected because the

Herrera affidavit is used both to support defendant’s actual innocence claim and his Brady

claim, and thus the claim is not freestanding. The State grounds this argument on People v.

Hobley, in which our supreme court interpreted its own holding in Washington to establish

that “[a] ‘free standing’ claim of actual innocence is ‘one in which the newly discovered

evidence is not being used to supplement an assertion of a constitutional violation with

respect to the defendant’s trial.’ ” People v. Hobley, 182 Ill. 2d 404, 443-44 (1998) (citing

Washington, 171 Ill. 2d at 490). This so-called “Hobley rule” has been echoed explicitly only

once by our supreme court, in People v. Orange, 195 Ill. 2d 437, 459-60 (2001). The State

28
 No. 1-21-0907

also cites the more recent case of People v. Taliani, 2021 IL 125891, but that case reflects the

original text of Washington and makes no holding with regard to the meaning of

“freestanding,” nor does it mention Hobley.

¶ 96 Defendant argues that the State misapprehends the holdings of Hobley and Orange and,

in fact, those cases were never intended to be read to forbid the alternative pleading of

different constitutional violations based in separate legal theories, but the same evidence.

Defendant correctly points out that it is clear in the original text of Washington that the

language relied on in Hobley and Orange was present not to create a mandate, but to

distinguish the freestanding claim that was cognizable under the Illinois constitution, but not

under the federal constitution, from a gateway claim, which was the only form in which an

actual innocence claim was cognizable under the federal constitution. Washington, 171 Ill. at

479-489.

¶ 97 The defendant in Hobley was convicted of multiple counts of felony murder and arson.

Hobley, 182 Ill. 2d at 404. The defendant articulated an actual innocence claim based on a

fingerprint test conducted on a gas can found at the scene that had produced a negative result,

as well as upon the fact that a second gas can was found at the scene. Id. at 443. The

defendant’s postconviction petition also asserted a constitutional violation under Brady based

on the State’s suppression of the fingerprint report, the State’s suppression of the fact that a

second gas can was found, and the State’s destruction of the second gas can. Id. at 428-29.

The Hobley defendant’s Brady claims were based on “two subpoenas; the affidavit of one of

defendant’s post-conviction attorneys; the affidavit of a defense investigator; a lab report

related to defendant’s case * * *; and several other police reports * * * including a fingerprint

29
 No. 1-21-0907

report and report referencing a one-gallon can.” Id. at 429. The Hobley court did not specify

which pieces of evidence the actual innocence claim was based on, but opined:

“In this appeal, we have already held that the State’s actions regarding the

fingerprint report and second gasoline can may establish a violation of defendant’s

constitutional right to due process under Brady. Consequently, this evidence does not

support a ‘free-standing’ claim of actual innocence. Rather, the newly discovered

evidence defendant points to here is being used to supplement his assertions of

constitutional violations with respect to his trial. Defendant has therefore not properly

raised a claim of actual innocence under Washington.

In addition, defendant briefly mentions that he has newly discovered evidence

showing that the officers at Area 2 engaged in a pattern and practice of police torture.

This evidence, however, is being used to supplement defendant’s assertion * * * that

his confessions were coerced and involuntary and that the introduction of these

confessions violated his constitutional rights. Therefore, this evidence also fails to

support a ‘free-standing’ claim of actual innocence under Washington.

In conclusion, defendant is not entitled to either an evidentiary hearing or a new

trial on his actual innocence claim.” (emphasis in original) Id. at 444.

¶ 98 Our court’s opinion in Martinez provides an insightful analysis on the subject of the

Hobley rule. People v. Martinez, 2021 IL App (1st) 190490. The most common interpretation

of Hobley to date, as described in Martinez, has been that “[w]hereas Washington held that a

defendant was not required to rely on an underlying constitutional claim to assert actual

innocence, Hobley found that the defendant was not allowed to rely on the same evidence to

pursue both a constitutional claim of trial error and a freestanding actual innocence claim.”

30
 No. 1-21-0907

Martinez, 2021 IL App (1st) 190490, ¶ 99. This interpretation narrows the door opened by

Washington by requiring largely pro se petitioners to assiduously separate evidence used to

support an actual innocence claim from all evidence offered to support other constitutional

claims in the same postconviction petition. To impose such a requirement does not

effectively weed out claims lacking a valid claim of actual innocence, but only serves to

block any actual innocence claim not pled in accordance with this arbitrary requirement.

Further, such an additional limitation is unnecessary in light of the extremely high bar for

actual innocence claims established in Washington, 171 Ill. 2d at 489.

¶ 99 Martinez went on to assert:

“It would seem that the decision in Hobley attempted to track Washington’s

application of the law, but in doing so, deviated from both the spirit and letter of the

law as set forth in Washington. Hobley identified no principle or purpose that would

be furthered by prohibiting a defendant from using the same evidence to assert both a

constitutional claim of trial error and an actual innocence claim. Furthermore, the

Hobley rule would potentially force a defendant to choose to forgo a meritorious

claim of trial error in order to pursue an actual innocence claim.” Martinez, 2021 IL

App (1st) 190490, ¶ 102.

¶ 100 We agree with Martinez that Hobley, thusly interpreted, would represent an unprincipled

modification of the law established in Washington. Martinez found Hobley to be

inapplicable, as its holding was inconsistent with our supreme court’s more recent opinion in

People v. Coleman:

“Coleman * * * stated that ‘a freestanding actual-innocence claim is independent of

any claims of constitutional error at trial and focuses solely on a defendant’s factual

31
 No. 1-21-0907

innocence in light of new evidence.’ Thus, Coleman’s explanation of a freestanding

actual innocence claim contemplates that the claims be independent, not that the

actual innocence claim be independent of the evidence underlying his other

constitutional claim of trial error.” Martinez, 2021 IL App (1st) 190490, ¶ 104 (citing

Coleman, 2013 IL 113307, ¶ 83).

¶ 101 In Martinez, our court went on to assert that, per Coleman, “a court should grant relief if

the defendant has presented evidence that is (1) new, (2) material, (3) noncumulative, and (4)

so conclusive that it would probably change the result on retrial.” Id. ¶ 105 (citing Coleman,

2013 IL 113307, ¶ 84). This court reasoned that Hobley effectively added a fifth requirement

and since that fifth requirement was not present in Coleman’s articulation of the requirements

of an actual innocence claim, Hobley was not reconcilable with Coleman. Id. ¶ 105-06.

Coleman does not make note of Hobley’s fifth requirement, and asserts that “[i]n the 17 years

since we decided Washington, nothing has changed,” Coleman, 2013 IL 113307, ¶ 93, and

that “[o]ur commitment to [Washington’s] holding is unwavering.” Id. We conclude that

Hobley’s fifth requirement is no longer part of our supreme court’s definition of a

freestanding actual innocence claim.

¶ 102 Since the text of Coleman asserts that a freestanding claim is one in which the claim is

separate from any other claim of a constitutional violation, we will review the facts of this

case through that lens. Here, defendant alleges a Brady violation with regard to the State’s

withholding of evidence regarding a statement from Herrera, but Herrera’s affidavit also

includes testimony regarding the events surrounding the offense and that testimony supports

a freestanding claim of actual innocence unrelated to any state action. There is no assertion of

32
 No. 1-21-0907

a constitutional violation related to Dr. Strange or the evidence she presented. Accordingly,

defendant’s actual innocence claim is freestanding.

¶ 103 2. Testimony of Saul Herrera

¶ 104 Defendant argues that it was manifest error for the circuit court to deny defendant a new

trial where Herrera’s testimony was new, noncumulative, and sufficiently conclusive.

Defendant’s argument on this subject contains a number of complaints about the circuit court

judge, as well as conclusions about that judge’s intentions. It is clear from the record that

defense counsel found the judge’s demeanor less than ideal. However, this court’s role is to

review circuit court decisions for error, not to settle tensions between attorneys and the court.

Defendant does not argue that the circuit court judge’s demeanor amounted to error of any

kind, and such extraneous commentary is irrelevant to our appellate review. Instead, we will

address the issue before us: whether it was manifest error for the circuit court to deny

defendant a new trial based on Herrera’s testimony. We will not examine the question of

whether Herrera’s testimony was material as the circuit court made no finding on that point

and it is unnecessary to our analysis.

¶ 105 a. New Evidence

¶ 106 To qualify as new evidence suitable for a postconviction actual innocence claim, it must

be evidence that was “discovered after trial and could not have been discovered earlier

through the exercise of due diligence.” Coleman, 2013 IL 113307, ¶ 96. The State argues that

because defendant knew that Herrera was present when the shooting took place, Herrera’s

testimony about the events of the shooting is not newly discovered evidence. Even if it is

newly discovered, the State argues, defendant could have discovered it prior to trial through

due diligence and has not demonstrated that he performed such due diligence.

33
 No. 1-21-0907

¶ 107 Our supreme court’s guidance in People v. Edwards, 2012 IL 111711, is instructive on

this point. In that case, the petitioner presented alibi affidavits as newly discovered evidence

of his innocence. Id. ¶ 12. The Edwards court stated that “[p]etitioner does not dispute that he

knew of the alibi at the time of the trial. Petitioner’s argument is that this evidence was

unavailable to him.” Id. ¶ 35. The petitioner there asserted that the evidence was unavailable

because the alibi witnesses refused to testify, a claim that was supported only by assertions to

that end from the witnesses in their affidavits. Id. Our supreme court held that since no

evidence was presented that there was an attempt to subpoena the two alibi witnesses, the

evidence could have been discovered sooner through the exercise of due diligence and

therefore was not newly discovered. Id. ¶ 37. However, the Edwards court opined: “We do

not conclude that such evidence could never be considered unavailable where, as here, the

witnesses rejected the petitioner’s attempts to persuade them to testify.” Id.

¶ 108 While, in the case at bar, there is no evidence that an effort was made to persuade Herrera

to testify on defendant’s behalf at the time of trial, we believe that this case falls into a very

narrow category wherein the evidence is newly discovered despite a lack of showing from

defendant that he did his due diligence. The reason for this conclusion is that the specific

facts of this case present a scenario in which there was no action defendant could have taken

at the time of the trial to constitute due diligence. In Edwards, there was nothing put into the

record to confirm that the potential witnesses had refused to testify. In this case, Herrera had

signed a statement implicating defendant, he was listed as a prosecution witness, and

defendant even moved to exclude his testimony. As far as defendant was aware, Herrera

intended to testify against him. To subpoena him to testify on defendant’s behalf would have

34
 No. 1-21-0907

been nonsensical without the information provided in Herrera’s affidavit and postconviction

testimony, neither of which were available to defendant’s attorney at trial.

¶ 109 The State argues that defendant should have been on notice that Herrera was not

cooperating with the State because he had failed to answer the State’s subpoena and a

warrant had been issued for his arrest. Defendant argues that if the State could not produce

Herrera to testify, defendant could not be expected to have better luck producing him. Even if

we were to accept, arguendo, that efforts constituting due diligence could have resulted in

contact with Herrera, we do not believe that those efforts constituting due diligence include

divining that a prosecution witness’ non-cooperation indicates availability and interest in

testifying on defendant’s behalf. Accordingly, we find that the circuit court erred in finding

that the evidence was not new.

¶ 110 b. Noncumulative Evidence

¶ 111 Defendant argues that the circuit court erred by finding that Herrera’s testimony was

cumulative. “Noncumulative means the evidence adds to what the jury heard.” Coleman,

2013 IL 113307, ¶ 96. While an actual innocence claim as a whole must overcome a heavy

burden to warrant a new trial, the bar for evidence to qualify as non-cumulative is quite low.

The State argues that the circuit court was right when it expressed doubt that a witness whose

testimony largely echoes that of Gutierrez, Martin, and defendant would sway a jury, but that

is an argument as to the conclusiveness of the testimony, not whether or not it is cumulative.

¶ 112 Defendant offers three facts that Herrera testified to that he argues are not cumulative to

other testimony offered at trial. Most notably, Herrera stated that one of the men in the truck

shouted “get the dude with the teardrop tattoo” before defendant ran toward the gangway.

Regardless of what value a trier of fact might assign to this piece of testimony, we cannot say

35
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it is cumulative with any of the other testimony. Accordingly, we disagree with the circuit

court and at least a portion of Herrera’s testimony was noncumulative.

¶ 113 c. Conclusive Evidence

¶ 114 “[C]onclusive means the evidence, when considered along with the trial evidence, would

probably lead to a different result.” Id. ¶ 96. Our task is not to reweigh the circuit court’s

credibility determinations, it is to determine whether the circuit court’s decision was

manifestly erroneous. Is it “clearly evident, plain, and indisputable” that the circuit court’s

decision was erroneous? People v. Eubanks, 2021 IL 126271, ¶ 47. The circuit court found

that Herrera’s testimony was not sufficiently conclusive because (1) defendant, Gutierrez,

and Martin testified to “essentially the same thing,” (2) Herrera’s testimony about the

attempted hand-off of the gun was contradictory to defendant’s testimony because the

handoff occurred in a different place, (3) Herrera’s testimony was impeachable with his

signed statement implicating defendant, (4) the court found Herrera’s testimony regarding

police coercion to not be credible.

¶ 115 The circuit court’s assertion that Herrera’s testimony was largely in line with that of

defendant, Gutierrez, and Martin is an accurate reflection of the record, though it was not

identical. Although defendant insists otherwise, the record reflects that defendant testified

that Garcia tried to hand off the gun to him twice: once in the back yard and once in the

house. Gutierrez testified that Garcia attempted to hand off the gun to defendant but did not

specify where that interaction took place. Herrera’s testimony that the attempted handoff

occurred “right by the front of the house on the sidewalk” is inconsistent with the other

witnesses’ testimony at trial. The circuit court was not wrong in its assertion that Herrera

could be impeached with his signed statement, even if he would testify that that statement

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was coerced. Though the circuit court did not mention it in its decision, there were also

significant differences between the version of events described in Herrera’s affidavit and

Herrera’s postconviction testimony, such as how many people got out of the truck. Such

discrepancies could also be used to further impeach Herrera. Lastly, the circuit court’s

credibility finding regarding Herrera’s testimony about police coercion was not manifestly

erroneous.

¶ 116 The proposed value of Herrera’s testimony is that (1) he is an additional eyewitness

testifying that Garcia was in fact the shooter, (2) his testimony that someone in the truck

yelled “get the guy with the teardrop” shows why defendant ran toward the gangway and

militates against the idea that he went to fetch a firearm, (3) his testimony regarding the

attempted handoff of the weapon would explain why defendant tested positive for gunshot

residue, and (4) he could also testify to police officers’ efforts to coerce him into implicating

defendant.

¶ 117 The bar for granting a new trial based on a claim of actual innocence is a high one—the

question, again, is not whether there is any value to the evidence provided in the

postconviction petition, but whether it was clearly evident, plain, and indisputable that the

circuit court’s decision was erroneous. People v. Tyler, 2015 IL App (1st) 123470, ¶152.

Comparing the potential value of the testimony Herrera could offer if a new trial were

granted against the trial court’s findings and the testimony provided at the third-stage

evidentiary hearing, we cannot say that the circuit court’s holding that Herrera’s testimony

was insufficiently conclusive was manifestly erroneous.

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¶ 118 3. Testimony of Dr. Deryn Strange

¶ 119 Dr. Strange submitted a report and testified to the unreliability of eyewitness

identification testimony and her impression, based on a reading of the record, of the

likelihood that the factors that tend to make identifications unreliable affected the

identifications in this case. Our supreme court has held on multiple occasions that

impeachment evidence is insufficient to justify the grant of a new trial. People v. Prante,

2023 IL 127241, ¶ 80; People v. Ortiz, 235 Ill. 2d 319, 335 (2009); People v. Smith, 177 Ill.

2d 53, 82 (1997). Dr. Strange’s testimony is valuable solely for the purpose of impeachment.

Accordingly, without needing to address the question of whether Dr. Strange’s testimony is

new, noncumulative, and conclusive, we find that Dr. Strange’s testimony was insufficient to

warrant a new trial.

¶ 120 Accordingly, we affirm the circuit court’s denial of defendant’s actual innocence claim.

¶ 121 C. Brady Claim

¶ 122 Defendant argues that his due process rights under Brady were violated because the State

did not disclose to the defense that Herrera told the police that defendant was not the shooter

and later, upon responding to a subpoena to testify in defendant’s case, told an assistant

state’s attorney (ASA) that defendant was not the shooter.

¶ 123 Defendant fails to articulate anything more about the violated right and makes no citation

whatsoever to the record or case law to support this argument, failing even to properly cite

Brady itself. In its response, the State raises defendant’s failure to support his Brady claim

with legal citation. Defendant states in his reply brief that he “saw no reason to cite factually

distinguishable cases that will not aid this Court’s analysis or cite cases that merely

regurgitate the relevant Brady standard which is not in dispute.” An assumption, no matter

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how safe it may be, that this court already understands the basis for one’s argument does not

justify a disregard for the court’s rules governing the requirements for appellate briefs.

However, we will consider defendant’s argument despite these flaws.

¶ 124 In Brady, “the Supreme Court held that the prosecution violates an accused’s

constitutional right to due process of law by failing to disclose evidence favorable to the

accused and material to guilt or punishment.” People v. Beaman, 229 Ill. 2d 56, 73 (2008).

For the purposes of Brady violations, undisclosed information known to police, but not the

prosecutor still constitutes a violation. Id. To establish a Brady violation, a defendant must

show that “(1) the undisclosed evidence is favorable to the accused because it is either

exculpatory or impeaching; (2) the evidence was suppressed by the State either willfully or

inadvertently; and (3) the accused was prejudiced because the evidence is material to guilt or

punishment." Id. at 73-74.

¶ 125 We first address the question of whether the evidence was suppressed by the State. Our

case law is of little help in discerning what quantum of proof is necessary to satisfy the

required showing that evidence was suppressed, as the question is usually either undisputed

or elided in favor of the other requirements laid out in Brady. Here, however, no evidence

whatsoever is presented on the subject. In his post-conviction petition, defendant alleges that

the State “failed to disclose exculpatory evidence that Saul Herrera first told the police and

later disclosed to prosecutors directly that [defendant] was not the shooter.” The State

responded to the petition with a blanket denial. Accordingly, even if the trial court had found

Herrera to be credible and accepted that Herrera had in fact made the alleged statements to

police and prosecutors, not one iota of evidence was adduced showing that the evidence was

suppressed. We are left only with a bare allegation.

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¶ 126 In his post-conviction petition, defendant focused wholly on establishing, via Herrera’s

affidavit, that the evidence existed, and then arguing that the evidence was favorable and

material. Defendant cited no evidence establishing nondisclosure or suppression in either his

petition or this appeal, and Herrera’s affidavit asserts only what he told police and

prosecutors, not whether that information made its way to defendant. At defendant’s third-

stage evidentiary hearing, defendant and his trial attorney were both called to testify, but in

neither case were they asked whether they were made aware of Herrera’s statements to police

and prosecutors. Defendant testified that he never saw the discovery in this case prior to post-

conviction proceedings and that he barely had the opportunity to speak with his trial attorney,

so we cannot say the record demonstrates that defendant had a sufficiently comprehensive

awareness of what evidence was available to the defense to testify to non-receipt of this

evidence, even if he had been asked. In closing arguments, defense counsel asserted that

“[c]ertainly even Mr. Gillespie probably would have used that evidence if he had known.”

This is an assumption. It is not evidence.

¶ 127 While the circuit court’s decision did not make note of the lack of evidence on this point,

our concern as a reviewing court is the lower court’s result, not its rationale. People v.

Johnson, 208 Ill. 2d 118, 128 (2003). Without reaching the questions of favorability and

materiality, where no shred of evidence is presented to establish suppression of evidence, we

cannot say the circuit court’s denial of defendant’s Brady claim was against the manifest

weight of the evidence.

¶ 128 Furthermore, the only evidence suggesting the existence of the allegedly-withheld

information consists of Herrera’s affidavit and his testimony at the third-stage evidentiary

hearing. The circuit court stated twice in its order that it did not find Herrera’s testimony to

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be credible. Defendant notes that the circuit court did not indicate specific portions of

Herrera’s testimony that were not credible, nor did it explain the basis of its credibility

finding, but defendant cites no caselaw to establish that the circuit court is obligated to do so.

We defer to the circuit court’s determinations of credibility as the fact-finder in a third-stage

evidentiary hearing except where those determinations are manifestly erroneous. People v.

Fair, 2024 IL 128373, ¶ 97.

¶ 129 It is arguable that Herrera’s willingness to flee rather than testify lends credibility to his

story, but that requires inferring that his actions were predicated on an insistence on recanting

coerced testimony and instead testifying to the truth rather than the equally valid inferences

that his refusal to appear in response to the State’s subpoena was out of fear of retaliation

from the gang to which defendant belonged or that the action was out of loyalty to a friend he

had known since elementary school. Whatever unspecified inferences the circuit court may

have drawn, it is true that Herrera’s signed statement to police in the wake of the offense

contradicts his affidavit and post-conviction testimony, and it is true that Herrera’s post-

conviction testimony contradicted his affidavit with regard to some of the specific facts of

what happened on the night of the shooting. When confronted with a contradiction between

his affidavit and his testimony regarding his knowledge or lack thereof as to whether Garcia

and defendant were cousins, he responded: “I mean, you’re asking me if I read this. I didn’t

read this. Now you’re asking me if that’s what I said. If that’s what I said, that’s what I

wrote, that’s what I said.” When confronted with a contradiction between his affidavit and

his testimony regarding the number of people who jumped out of the back of the truck prior

to the shooting, the following exchange occurred:

STATE: So that is, in fact, also inaccurate, right?

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HERRERA: Two people jumped out. It’s like you’re asking me something I might

not recall, I don’t remember it. It’s been a long time. You have to understand that.

STATE: It could have been two people, it could have been four people; you don’t

recall, right?

HERRERA: Correct.

¶ 130 The question before us is not how we would have weighed Herrera’s credibility, but

whether the circuit court’s credibility determination was manifestly erroneous. Considering

all of the above, we cannot say it was, so we affirm the circuit court’s denial of defendant’s

Brady claim.

¶ 131 D. Ineffective Assistance of Trial Counsel

¶ 132 Defendant asserts that his Sixth Amendment right to effective assistance of counsel was

violated by his trial counsel’s failure to present the testimony of Natalie, Adam, and Carlos.

We find no error in the circuit court’s factual finding that defendant’s trial counsel, Gillespie,

spoke to Natalie, Adam, and Carlos, but did not call them at trial. All three testified to those

facts during the third-stage evidentiary hearing. Accordingly, the question before us under a

de novo standard of review is whether Gillespie’s decisions rose to the level of ineffective

assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 43 (“In general, the standard of

review for determining if an individual's constitutional rights have been violated is de

novo.”). To determine whether a defendant was denied his or her right to effective assistance

of counsel, we must apply the two-prong test set forth in Strickland v. Washington, 466 U.S.

668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill.

2d 504 (1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his

attorney’s actions constituted errors so serious as to fall below an objective standard of

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reasonableness and (2) absent these errors, there was a reasonable probability that his trial

would have resulted in a different outcome. People v. Domagala, 2013 IL 113688, ¶ 36

(citing Strickland, 466 U.S. at 687, 694). To prevail, the defendant must satisfy both prongs

of the Strickland test. Colon, 225 Ill. 2d at 135.

¶ 133 Under the first prong of the Strickland test, the defendant must prove that his counsel’s

performance fell below an objective standard of reasonableness “under prevailing

professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004).

In considering whether counsel’s performance was deficient, a court must indulge a strong

presumption that the challenged action or inaction was the result of sound trial strategy.

People v. Smith, 195 Ill. 2d 179, 188 (2000); People v. Evans, 186 Ill. 2d 83, 93 (1999).

¶ 134 Under the second prong, the defendant must show that, “but for” counsel’s deficient

performance, there is a reasonable probability that the result of the proceeding would have

been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable

probability that the result would have been different is a probability sufficient to undermine

confidence in the outcome—or put another way, that counsel’s deficient performance

rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220;

Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s

performance. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011).

¶ 135 Defendant asserts that the testimony offered by Natalie, Adam, and Carlos was highly

compelling and that “failure of trial counsel to call a witness who would contradict the

State’s evidence and support the defense reflects deficient performance.” Defendant cites to

four cases for this proposition: People v. Ramirez-Lucas, 2017 IL App (2d) 150156, ¶ 44;

People v. Makiel, 358 Ill. App. 3d 102, 108 (2005), People v. Butcher, 240 Ill. App. 3d 507,

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510 (1992), People v. Skinner, 220 Ill. App. 3d 479, 485 (1991). All four cited cases concern

otherwise-uncorroborated theories of defense and therefore are not comparable to the case at

bar. Here, Gutierrez and Martin corroborated defendant’s testimony that he was innocent and

that Garcia was the shooter. While defendant is correct in his assertion that the circuit court

made no explicit finding that trial counsel’s decisions were sound trial strategy, defendant

also makes no demonstration that such an explicit finding is necessary. There were

inconsistencies between the versions of events presented by Natalie, Adam, and Carlos.

Presentation of their testimony could have led to contradictions with the testimony presented

by Martin and Gutierrez, both of whom testified that after Garcia left, they were speaking in

the backyard, yet neither of whom made any mention of a vehicle entering the garage during

that time. Even if we assume that a jury would find it believable that Garcia’s course of

action after shooting someone was to leave his car in the garage at the scene of the crime, it is

doubtful that he could have done so without Gutierrez and Martin noticing.

¶ 136 Further, none of the three proposed witnesses saw the shooting. Carlos saw Garcia with a

gun near the scene of the crime and testified that Garcia told him that he had shot at someone

and thought that he had killed him. Natalie was present with Garcia at all times that Carlos

was, but denied that Garcia ever showed them a gun or stated that he killed anyone. Adam

saw Garcia near the scene of the crime with what he believed to be a gun. It would not have

been unreasonable for an attorney in Gillespie’s position to decide that corroborating

defendant’s theory of defense with Martin and Gutierrez, who saw the events themselves,

would present a cleaner and more coherent story for the jury without the risk of perceived

contradictions from the additional testimony of Natalie, Carlos, and Adam. Defendant has

not overcome the presumption that defendant’s trial counsel’s decision not to call Natalie,

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Carlos, and Adam was sound trial strategy. Accordingly, we affirm the trial court’s decision

with regard to the issue of ineffective assistance of trial counsel.

¶ 137 E. Ineffective Assistance of Appellate Counsel

¶ 138 Defendant argues that his counsel on direct appeal was ineffective for failing to assert

that the trial court erroneously denied defendant’s motion to suppress Torres’ identification

of defendant in the lineup. “Claims of ineffective assistance of appellate counsel are

measured against the same standard as those dealing with ineffective assistance of trial

counsel.” People v. Childress, 191 Ill. 2d 168, 175 (2000). “Appellate counsel can only be

ineffective for failing to raise issues that were apparent on the face of the record.” People v.

Dixon, 2019 IL App (1st) 160443, ¶ 43. However, appellate counsel “is not obliged to raise

every conceivable issue on appeal and it is not incompetence to refrain from raising issues

which, in counsel’s judgment, are without merit, unless counsel’s appraisal of the merits is

patently wrong.” People v. Jones, 399 Ill. App. 3d 341, 372 (2010).

¶ 139 As no new evidence was presented on this issue and the question is purely a question of

law, our review is de novo. Pendleton, 223 Ill. 2d at 473. “A trial court’s factual

determination that an identification procedure was not unduly suggestive should not be

reversed unless it is against the manifest weight of the evidence, i.e. an opposite conclusion is

apparent or the findings appear to be unreasonable, arbitrary, or not based on evidence.”

People v. Ortiz, 2017 IL App (1st) 142559, ¶ 21. “However, the ultimate determination of

whether the trial court’s suppression ruling was proper given the factual circumstances at

issue is a legal question, which we review de novo.” Id.

¶ 140 “When challenging a lineup identification, the defendant bears the initial burden to show

it was impermissibly suggestive.” People v. Smith, 2023 IL App (1st) 181070, ¶ 36 (citing

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People v. Clifton, 2019 IL App (1st) 151967, ¶ 60). “If the defendant makes such a showing,

the burden shifts to the State to show by ‘clear and convincing evidence that the witness is

identifying the defendant based on his or her independent recollection of the incident.’ ” Id.

¶ 36 (citing People v. Brooks, 187 Ill. 2d 91, 126 (1999)).

¶ 141 Notwithstanding whether or not the lineup in question was impermissibly suggestive,

appellate counsel was not ineffective for failing to raise the denial of the motion to suppress

on appeal. The trial court held that the lineup was not impermissibly suggestive without the

burden of proof ever shifting to the State to prove that Torres’ identification had an

independent basis. However, the trial court judge heard testimony at the pretrial hearing that

established that Torres described the shooter as a male Hispanic with long hair and a teardrop

tattoo, within minutes of the shooting. Upon returning to the scene of the crime with police,

Torres observed multiple individuals in the back yard and did not identify any of them as the

shooter, but, upon seeing defendant, pointed him out as the shooter. The trial court did not

base its denial on these facts, as the question before it was whether the lineup was suggestive.

The trial court did, however, deny a motion to quash the arrest based on that testimony,

indicating that the trial court found the testimony to be credible.

¶ 142 There is no testimony in the record that contradicts the fact that Torres identified

defendant at defendant’s house within minutes of the shooting. Defendant’s appellate counsel

may have judged that it was likely that, even if defendant were to prevail on the matter of the

suggestiveness of the lineup identification, the only relief would have been a remand for a

hearing to give the State the opportunity to present the same evidence a second time to show

an independent basis for Torres’ identification. It would have been reasonable for

defendant’s appellate counsel to conclude that the State would almost certainly prevail upon

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remand, so it would not have been an unreasonable strategic decision to forgo the issue and

focus on those more likely to lead to meaningful relief for defendant. Accordingly, we cannot

find that appellate counsel’s representation fell below an objective standard of

reasonableness and so defendant’s claim fails. As defendant has failed to satisfy the first

prong of Strickland and both prongs must be satisfied for an ineffective assistance of counsel

claim to succeed, we need not consider the second prong. Colon, 225 Ill. 2d at 135.

¶ 143 F. Sentencing

¶ 144 The resentencing court sentenced defendant to 21 years’ imprisonment for first-

degree murder, 6 years’ imprisonment for aggravated battery with a firearm, and 5 years’

imprisonment for aggravated discharge of a firearm, with all three terms to run

consecutively. Both parties agree that this sentence was erroneous. One of the circumstances

in which consecutive sentencing is mandatory is when “[o]ne of the offenses for which the

defendant was convicted was first degree murder or a Class X or Class 1 felony and the

defendant inflicted severe bodily injury.” 730 ILCS 5/5-8-4(d)(1) (West 2020). Our supreme

court has since held that this provision applies only where the defendant inflicted severe

bodily injury during the commission of the triggering felony. People v. Whitney, 188 Ill. 2d

91, 98-99 (1999). Both parties agree that in the case at bar, each of the three charges have

separate victims and neither the original sentencing court nor the resentencing court made a

finding of severe bodily injury. We find that the resentencing court erred in ordering all three

terms of imprisonment to run consecutively.

¶ 145 This court possesses the authority to order correction of the mittimus rather than

remanding to the sentencing court. Ill. Sup. Ct. R. 615 (eff. Jan 1, 1967); People v. Denis,

2018 IL App (1st) 151892. Accordingly, we order the mittimus to be corrected to reflect that

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the 21-year term of imprisonment is to run consecutively with the 6-year term for aggravated

battery with a firearm and the 5-year term for aggravated discharge of a firearm, but that the

6-year term and 5-year term are to run concurrently with each other, for a total term of 27

years.

¶ 146 III. CONCLUSION

¶ 147 For the foregoing reasons, we affirm the decisions of the circuit court, but order that the

mittimus be corrected.

¶ 148 Affirmed; mittimus corrected.

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