People v. Blackmon

NOTICE 2024 IL App (4th) 220808-U
This Order was filed under FILED
Supreme Court Rule 23 and is NO. 4-22-0808 March 21, 2024
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
MARTY BLACKMON, ) No. 04CF169
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.
Justices Steigmann and Zenoff concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed the trial court’s denial of defendant’s motion for
leave to file a successive postconviction petition claiming actual innocence,
concluding (1) he did not meet his burden of showing newly discovered evidence
and (2) assuming arguendo he did, the evidence presented would probably not
lead to a different result.

¶2 Defendant, Marty Blackmon, appealed from the trial court’s denial of his motion

for leave to file a successive postconviction petition claiming actual innocence. We affirmed.

People v. Blackmon, 2023 IL App (4th) 220808-U, ¶ 3.

¶3 On November 29, 2023, the supreme court denied defendant’s petition for leave

to appeal but directed this court to vacate our judgment in the case, reconsider this case in light

of People v. Coleman, 2013 IL 113307, and People v. Edwards, 2012 IL 111711, on the issue of

whether defendant met his burden of showing newly discovered evidence, and determine if a

different result is warranted. In accordance with the supreme court’s direction, we vacated our
prior judgment and reconsidered the trial court’s order in light of Coleman and Edwards. Having

done so, we again affirm.

¶4 I. BACKGROUND

¶5 On August 10, 2004, the State charged defendant by indictment with two counts

of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2002)) and two counts of

aggravated battery (720 ILCS 5/12-3(a)(1) (West 2002)) following an August 2003 attack on

Allen Robinson, a fellow inmate at the Pontiac Correctional Center in Pontiac, Illinois (Pontiac).

Defendant’s codefendant, Robert Boyd, was alleged to have also participated in the attack.

¶6 On June 6, 2005, defendant pleaded guilty but mentally ill to all four counts of the

indictment. In exchange, the State agreed the latter three counts merged into the first count of

attempted murder and defendant’s sentence should be capped at 30 years. According to the

State’s factual basis, defendant and Boyd concocted a scheme wherein they removed pieces of

iron from the light fixtures in their cells, used them to dig through a concrete wall to reach

Robinson’s cell, and then used them to attack Robinson to the point of unconsciousness, causing

serious injury.

¶7 The trial court found defendant understood the nature of the charges, the possible

penalties, and the rights he was waiving. The court found defendant pleaded guilty voluntarily

and there was a factual basis for his plea. However, the court refrained from formally accepting

the plea until after it had a chance to review defendant’s psychiatric and presentence

investigation reports. Thereafter, the court formally accepted defendant’s plea of guilty but

mentally ill as to all four counts.

¶8 The trial court held the sentencing hearing on August 15, 2005. After

summarizing the June 6, 2005, proceeding, the court noted it received defendant’s motion to

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withdraw his guilty plea filed on July 7, 2005. Defendant denied filing this motion, insisted

someone else filed it on his behalf, denied any knowledge of it until receiving a copy of it, and

expressed his desire to withdraw it. The court accordingly struck the motion. The court then

sentenced defendant to a 30-year prison term, to run consecutively to his previously imposed

sentences.

¶9 On December 8, 2005, defendant filed a pro se motion to withdraw his guilty

plea, alleging his counsel was ineffective for (1) failing to inform the trial court of alleged

perjury by a State witness at the August 2004 grand jury proceedings and (2) coercing defendant

into pleading guilty despite the purported absence of a factual basis for his specific intent to

murder. On December 12, 2005, the court struck the motion as untimely. Defendant appealed,

and the Office of the State Appellate Defender (OSAD) was appointed to represent defendant on

appeal. Thereafter, OSAD moved to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967). On March 1, 2007, this court granted OSAD’s motion to withdraw, found the trial court

properly dismissed defendant’s motion as untimely, and dismissed his appeal. People v.

Blackmon, No. 4-06-0019 (March 1, 2007) (unpublished order under Illinois Supreme Court

Rule 23).

¶ 10 On April 9, 2007, defendant filed a pro se postconviction petition, which he

requested be voluntarily dismissed later that day. The trial court formally dismissed defendant’s

petition on April 19, 2007.

¶ 11 On April 23, 2007, defendant filed a new postconviction petition. Defendant’s

petition alleged his guilty plea was “involuntary and unintelligently induced” in that the trial

court did not admonish him of the three-year period of mandatory supervised release and because

he “did not understand the nature of his charges due to his mental health deterioration.”

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Additionally, defendant alleged his counsel was ineffective for, inter alia, not presenting an

insanity defense.

¶ 12 On May 10, 2007, the trial court dismissed defendant’s petition as frivolous and

patently without merit. In doing so, the court found the petition to be “in the nature of a

successive petition.” Defendant appealed, and this court affirmed the dismissal but found the

court erred in characterizing the petition as successive given defendant’s voluntary dismissal of

his postconviction petition on April 9, 2007. People v. Blackmon, No. 4-07-0429 (July 15, 2008)

(unpublished order under Illinois Supreme Court Rule 23).

¶ 13 On January 31, 2022, defendant filed a motion for leave to file a successive

postconviction petition, raising a claim of actual innocence. Specifically, defendant asserted:

“[He] should be allowed a successive postconviction [petition],

arguing that [he] is actually innocent of beating and stabbing, resulting in

the attempt[ed] murder of Alan [sic] Robinson, and the affidavits of [Boyd]

and [Christopher Knox,] another person incarcerated (formerly) to

corroborate [Boyd’s] statement that he alone committed the crime, and

coerced [defendant] to go along with his plot, constitute evidence that is

newly discovered, material, and noncumulative, and of such a conclusive

character as would change the result of any retrial.”

¶ 14 In his December 2021 affidavit, Boyd averred the following:

“On or about August 22[,] 2003[,] I broke the bricks out of my wall

leading from [Cell] 305 to 304, witch [sic] was occupied by [defendant]!

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 Upon going from my cell 305 into [defendant’s] cell 304, I Robert

Boyd told [defendant] to get out of my way & stay at the front of his cell or

I’d kill him.

I Robert Boyd #B51078 then busted a hole in 303 & I told inmate

(Robinson) to come fight me in [defendant’s] cell 304. I knocke [sic] holes

from my cell 305, 304, 303 & 2 Bricks out of *** 302 later that night.

At no time did [defendant] pick up a pice [sic] of steal [sic], bracke

[sic] a light or hit or touch harm or do anything to Mr. Robinson at no time.

I Robert Boyd #B51078 am the only one who hit & beat Mr.

Robinson who in [sic] August 22, 2003 was housed in 303, and came over

to 304 to fight me & I beat & stabbed him sevral [sic] times & in the process

I broke the light in 304 to get fresh steal [sic] to stab Mr. Robinson.

This whole incident took about 2 hours and some how [sic] it just

came to my knowledge about 5-6 days ago Dec. 9th[,] 2021 upon seeing

[defendant] for the 1st time & talking to him that he got 35 [sic] years for a

crime he had no involvement with. I did it alone all’s [sic] I did was told

[defendant] get out my way or I’d kill him.”

¶ 15 In his September 2020 affidavit, Christopher Knox averred the following:

“On March 7, 2018, I was transferred from [Pontiac] to Dixon C.C.

On or about March 10, 2018, I was placed on A-wing in X-house,

and while on the wing in which Bobby Boyd was also housed, he and I

talked about Pontiac. In particular, we talked about the incident that took

place on 3 gallery in Pontiac.

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 He explained, that he and [defendant], was [sic] trying to go through

the walls to get to the back-flag. Bobby told me that at some point they

realized they couldn’t get through all the walls. During this time, Smooth

[(Allen Robinson)] said something to him and he did what he did to him.

Bobby stated, [defendant] came back and stopped him from killing

Smooth. Bobby told me, he didn’t want to say anything earlier because he

didn’t want to implicate himself and was trying to get off on the case.”

¶ 16 According to defendant, (1) Boyd’s affidavit could not have been discovered

through the exercise of due diligence as (a) defendant had not seen Boyd in 18 years and

(b) Boyd could not have been forced to waive his right against self-incrimination, (2) the

information in the affidavit is material, and (3) the affidavit contradicts the State’s evidence and

exonerates him such that the result of his trial would have been different.

¶ 17 On March 9, 2022, the trial court denied defendant’s motion for leave to file a

successive postconviction petition, holding:

“Defendant contends that these affidavits are ‘newly discovered

evidence’ that demonstrate his actual innocence. However, the facts set

forth in Boyd’s affidavit were not unknown to defendant at the time of his

plea. Defendant knew Boyd was involved in the stabbing of Robinson at the

time [defendant] chose to plead guilty. If defendant was actually innocent,

he would have known that he did not act with Boyd back in 2005 when he

chose to plead guilty. This is not a situation where Boyd refused to testify

or otherwise pled the 5th Amendment [(U.S. Const., amend. V)] in

connection with defendant’s case. There was no trial and Boyd never

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 testified. Further, the most incriminating statements against defendant were

not made by Boyd, but were made by the defendant himself. At no point in

his successive [postconviction] petition does defendant explain or recant his

detailed statements to [Illinois Department of Corrections (IDOC)]

investigators concerning his knowledge and involvement in this incident.”

¶ 18 On April 6, 2022, defendant filed a motion to reconsider the March 9, 2022,

order, as well as an amended successive postconviction petition. The trial court denied

defendant’s motion to reconsider, finding he was improperly asking the court to “consider for the

first time additional evidence not set forth in his original 1st Successive Post-Conviction

Petition.” The court also denied defendant’s motion for leave to amend the successive

postconviction petition, finding he “seems to abandon entirely his claim of actual innocence and

instead pursues a claim of Equal Protection Clause violations for an allegedly disproportionate

sentence.”

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues the trial court erred in denying his motion for leave

to file his successive postconviction petition. Specifically, defendant contends the court erred

because (1) Boyd’s affidavit is “newly discovered evidence,” (2) Boyd’s affidavit contains

“material and non-cumulative” information probative of defendant’s innocence and creates new

factual questions given the absence of anything in the State’s factual basis suggesting Boyd

attacked Robinson by himself, and (3) Boyd’s affidavit is “of such conclusive character that it

would probably produce a different outcome.”

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¶ 22 Generally, the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

2022)), permits the filing of only one postconviction petition. People v. Wilson, 2023 IL 127666,

¶ 23. “To file a successive [postconviction] petition, a defendant must establish either (1) cause

for not filing earlier and prejudice or (2) actual innocence.” People v. Walker, 2022 IL App (1st)

201151, ¶ 19, 207 N.E.3d 1083. Here, defendant alleges actual innocence.

¶ 23 To set forth a claim of actual innocence:

“[T]he supporting evidence must be (1) newly discovered, (2) material and

not cumulative, and (3) of such conclusive character that it would probably

change the result on retrial. [Citation.] Newly discovered evidence is

evidence that was discovered after trial and that the petitioner could not

have discovered earlier through the exercise of due diligence. [Citation.]

Evidence is material if it is relevant and probative of the petitioner’s

innocence. [Citation.] Noncumulative evidence adds to the information that

the fact finder heard at trial. [Citation.] Lastly, the conclusive character

element refers to evidence that, when considered along with the trial

evidence, would probably lead to a different result. [Citation.]” People v.

Robinson, 2020 IL 123849, ¶ 47, 181 N.E.3d 37.

“[T]he denial of leave to file a successive postconviction petition alleging actual innocence is

reviewed de novo.” Robinson, 2020 IL 123849, ¶ 40.

¶ 24 Evidence is not “newly discovered” when it “presents facts already known to a

defendant at or prior to trial, though the source of these facts may have been unknown,

unavailable or uncooperative.” (Internal quotation marks omitted.) People v. Snow, 2012 IL App

(4th) 110415, ¶ 21, 964 N.E.2d 1139. As the trial court noted, Boyd’s and Knox’s affidavits

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contained facts purporting to reflect defendant’s actual innocence, which defendant clearly

would already have known when he pleaded guilty in June 2005. Defendant maintains Boyd’s

affidavit must be considered newly discovered evidence because the affidavit itself could not be

procured sooner. Because defendant would have known the information contained in Boyd’s

affidavit at the time of his plea (i.e., defendant did not commit the offenses), however, it cannot

be considered “newly discovered.” See People v. Jones, 399 Ill. App. 3d 341, 364, 927 N.E.2d

710, 729 (2010) (“An unbroken line of precedent holds that evidence is not newly discovered

when it presents facts already known to a defendant at or prior to trial, though the source of those

facts may have been unknown, unavailable or uncooperative.”).

¶ 25 We note defendant’s successive petition argues he was severely mentally ill at the

time of the offenses and unable to recall details. Defendant maintains he told a psychiatrist in

March 2005 that he had no memory of the incident and was going to “agree to whatever they say

happened” only to get mental health treatment. However, his psychiatrist’s report, which

defendant attached to his successive petition, concludes that defendant’s judgment was impaired

on the date of the offenses, “but not to the extent that he was unable to appreciate the

wrongfulness of his behavior.” Moreover, it is clear defendant recalled the incident at the time he

filed his April 2007 postconviction petition. In that petition, defendant complained of the

“insufficiency of [the] indictment for charging [him] with crimes which did not coincide with the

evidence [or] facts of the case.” Defendant also complained his counsel “failed to present an

insanity defense even in light of significant evidence indicating the probable success of such a

defense.” Thus, the record on appeal demonstrates the facts underlying defendant’s actual

innocence claim would have been known to him at the time he filed his first postconviction

petition. Snow, 2012 IL App (4th) 110415, ¶ 21.

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¶ 26 The foregoing analysis entails the application of the standard enunciated by this

court in Snow to the issue of whether defendant met his burden of showing newly discovered

evidence. As stated, we have been directed to consider the effect of Coleman and Edwards as to

this issue, which we now do. For the following reasons, we find neither case dispositive because

they are distinguishable.

¶ 27 In Edwards, the supreme court concluded affidavits from alibi witnesses

submitted in connection with a successive postconviction petition claiming actual innocence

contained information known to the defendant at the time of the trial and, thus, the affidavits

“could have been discovered sooner through the exercise of due diligence.” Edwards, 2012 IL

111711, ¶ 37. “[T]he evidence therefore was not newly discovered.” Edwards, 2012 IL 111711,

¶ 37. However, as for an affidavit from a codefendant, Eddie Coleman, in which he stated he

“did not come forward earlier because ‘all [he] cared about was [his] freedom,’ ” (Edwards,

2012 IL 111711, ¶ 10), the court concluded:

“While [the defendant] obviously knew of Eddie at the time of trial, the

evidence in Eddie’s affidavit apparently was nevertheless ‘unavailable at

trial’ [citation], and the evidence thus qualified as newly discovered. Eddie

was a codefendant, with a fifth amendment right to avoid self-incrimination.

No amount of diligence could have forced him to violate that right if he did

not choose to do so.” Edwards, 2012 IL 111711, ¶ 38.

¶ 28 In Coleman, several uncharged witnesses to the underlying crime stated they

would have invoked their fifth amendment right against self-incrimination if they were called to

testify. Coleman, 2013 IL 113307, ¶ 102. Accordingly, the supreme court concluded “[t]he

testimony of these witnesses was new evidence” in connection with their affidavits in support of

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the defendant’s successive postconviction petition claiming actual innocence. Coleman, 2013 IL

113307, ¶ 102.

¶ 29 “It is generally accepted that witnesses are deemed unavailable when they invoke

their fifth amendment privilege against self-incrimination.” (Emphasis added.) People v. Rosalez,

2021 IL App (2d) 200086, ¶ 107, 194 N.E.3d 929. Here, while Knox avers in his affidavit to

having a conversation in March 2018 in which Boyd allegedly said he “did not want to say

anything earlier because he didn’t want to implicate himself and was trying to get off on the

case,” Boyd makes no such representation in his own affidavit. Unlike the case with the

codefendant in Edwards or the uncharged witnesses in Coleman, it is not the case here that

Boyd’s fifth amendment right against self-incrimination was the reason for not providing his

account of the incident at an earlier proceeding and that he could not have been forced by any

amount of diligence to waive that right. In this regard, the record discloses no attempt defendant

made to obtain this affidavit from Boyd for the initial postconviction petition in April 2007.

Defendant exhibited no diligence at all to obtain this affidavit at that earlier stage. Accordingly,

Boyd’s affidavit does not constitute “newly discovered evidence” for purposes of a successive

postconviction petition claiming actual innocence. See People v. Fields, 2021 IL App (1st)

191712-U, ¶ 80 (noting “the trial court rightly found that the Hopkins affidavit is not newly

discovered evidence because defendant was with Hopkins the night of the shooting, and

therefore knew or had reason to know that Hopkins may have had information related to his

case,” and “defendant[’]s petition and affidavit do not indicate that he pursued Hopkins

regarding this evidence,” thereby reflecting “no effort to exercise due diligence even though he

knew Hopkins could be a potential witness”).

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¶ 30 Assuming, arguendo, Boyd’s affidavit is newly discovered evidence, it would

also be “material and not merely cumulative.” Edwards, 2012 IL 111711, ¶ 32. “Material means

the evidence is relevant and probative of the petitioner’s innocence.” Coleman, 2013 IL 113307,

¶ 96. “Noncumulative means the evidence adds to what the jury heard.” Coleman, 2013 IL

113307, ¶ 96. The factual basis for defendant’s plea included the allegation he and Boyd

concocted a scheme to harm Robinson. Boyd avers he alone committed the offense and

defendant had no involvement in it, which is relevant to and probative of defendant’s innocence.

As defendant pleaded guilty, there was no trial before a jury; as a jury heard nothing in this case,

the information in Boyd’s affidavit would naturally “add[ ] to what the jury heard.” Coleman,

2013 IL 113307, ¶ 96. Therefore, Boyd’s affidavit would be material and noncumulative.

¶ 31 Consequently, we consider whether, assuming, arguendo, Boyd’s affidavit

satisfies the first two elements, it is of the requisite conclusive character in light of Coleman and

Edwards. “The conclusive character of the new evidence is the most important element of an

actual innocence claim.” People v. Robinson, 2020 IL 123849, ¶ 47, 181 N.E.3d 37.

¶ 32 In Edwards, the supreme court noted that even though Eddie Coleman averred in

his affidavit that the defendant had no involvement in the underlying crime, Eddie did not aver

the defendant was not present when the crime occurred. Edwards, 2012 IL 111711, ¶ 39. As

defendant was convicted of murder under a theory of accountability, the supreme court agreed

with the appellate court that Eddie’s affidavit would do little to exonerate the defendant.

Edwards, 2012 IL 111711, ¶ 39. Thus, the court concluded Eddie Coleman’s affidavit was not of

the requisite conclusive character despite it being newly discovered. Edwards, 2012 IL 111711,

¶ 40. Consequently, the defendant failed “to raise the probability that it is more likely than not

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that no reasonable juror would have convicted him in the light of the new evidence.” Edwards,

2012 IL 111711, ¶ 41.

¶ 33 In Coleman, various witnesses to the underlying crime submitted affidavits in

support of the defendant’s second successive postconviction petition claiming actual innocence.

Coleman, 2013 IL 113307, ¶ 49. The supreme court determined that while the testimony of

certain witnesses at the hearing on the defendant’s petition was “discredited” for various reasons,

it “directly contradicted” that of other witnesses “on the ultimate issue before the jury: who was

involved in the attack.” Coleman, 2013 IL 113307, ¶ 113. The court believed “the evidence

presented by the defendant at the evidentiary hearing, together with the evidence presented by

the defendant at trial, places the evidence presented by the State in a new light and undermines

[its] confidence in that evidence and the result it produced.” Coleman, 2013 IL 113307, ¶ 113.

The court found “the defendant’s new evidence *** conclusive enough that another trier of fact

would probably reach a different result.” Coleman, 2013 IL 113307, ¶ 113. The court reversed

the judgments of the trial court and appellate court and remanded for further proceedings.

Coleman, 2013 IL 113307, ¶ 116.

¶ 34 Here, Boyd’s affidavit is not of the requisite conclusive character because it

would probably not lead to a different result. As with the affidavit of the codefendant in

Edwards, Boyd’s affidavit would do little to exonerate defendant. See Edwards, 2012 IL 111711,

¶ 39. And contrary to the affidavits and testimony of the witnesses in Coleman, Boyd’s affidavit

does not “place[ ] the evidence presented by the State in a new light and undermine[ ] [this

court’s] confidence in that evidence and the result it produced.” Coleman, 2013 IL 113307,

¶ 113. Boyd averred defendant supposedly did not even touch Robinson. Yet this is presented in

the face of significant evidence in the record implicating defendant in this incident.

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¶ 35 As an exhibit to his December 2005 motion to withdraw his guilty plea, defendant

attached the transcript of the grand jury proceeding from August 2004, in which IDOC

investigator Michael McFadden testified regarding defendant’s account of his involvement in the

incident, including his description of being in a “tussle” with Robinson, striking Robinson “at

least two to three times in the face with his fists,” and admitting he “possibly” struck Robinson

with a piece of metal. Defendant also attached a portion of an IDOC investigative report

reflecting his statements about removing pieces of metal from the light fixtures, putting on

“combat gear,” which included a “gas mask,” punching Robinson’s head with both of his closed

fists two to three times, and saying, “[W]e beat him down, but we didn’t kill him.” This report

also reflects the account of another inmate, who heard both Boyd and defendant beating

Robinson and continuing to hit him after he cried out for them to not kill him. Boyd’s affidavit,

even if newly discovered, as well as material and noncumulative, does not “raise the probability

that it is more likely than not that no reasonable juror would have convicted him in the light of

the new evidence” (Edwards, 2012 IL 111711, ¶ 41) and is not “conclusive enough that another

trier of fact would probably reach a different result.” Coleman, 2013 IL 113307, ¶ 113.

¶ 36 Boyd’s affidavit did not constitute newly discovered evidence. Further, even

assuming, arguendo, the affidavit was both newly discovered evidence, as well as material and

noncumulative, it is not of the requisite conclusive character. Therefore, after considering the

case in light of Edwards and Coleman, we conclude the trial court did not err in denying

defendant leave to file a successive postconviction petition claiming actual innocence.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the trial court’s judgment.

¶ 39 Affirmed.

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