1 NOTICE Decision fi led 11/ 05 / 07. The t ext of this decision may be cha ng ed or
c orrect ed prior

to t he fi ling of a Petit ion fo r Rehearin g o r th e disposit ion of

the same. NO S. 5-05-046 1 & 5-05 -0620 (co ns.) IN THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff -Appell ee, ) St . Clair County. ) v. ) No. 99-CF-995 ) COREY J OHNS ON, ) Ho nora ble ) Ann ette A. E ckert, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

________________________________________________________________________ JUST ICE C HA PM AN delivered the op inion o f the co urt: The defendant , Corey Johnson, appeals t he fir st-s tag e dismi ssal of his postconvi ction petition as frivolou s and paten tly w ithout m erit. Th e pos tconvicti on cou rt dismi ssed the petition on the g round that all t he issue s rai sed therein were barred byeither res jud icata or waiver. On appeal, thedefendant contends that ( 1) his claims we re not w aived for a failure to raise the m on direct appe al b eca use he a lleged that h e ha d re ceive d th e ine ffec tive assistan ce of a ppella te counsel and (2 ) hi s pet it ion s tat ed th e gi st o f a con stitut iona l cl aim, which is al l that

is needed to surv ive a fir st-s tag e dismi ssal. We reverse and remand. In J anuary 2003, t

he defendant

was tri ed on two counts of fir st-de gree murder (720 I LCS 5/ 9-1(a) (West 1998)) in the 1999 shooting de aths of Charles Ev ans and Jer emiah Scott. The defendant, wh o was 16 yea rs o ld at the time of the shootings , was tri ed as an adult. The prosecut ion' s theor y was that t

he defendant

shot Evans and Scot

t duri ng an atte mptedcarjac king. Prior to the trial, the defe ndanttold pol ice that he had shot Evans and Scott in sel f-def

ense aft er theykidna

ped him. S pecifi call y, he told pol ice that he was hiding in some bushes f

rom a man who had accused hi m of breakin g into the man 's car, w hen a gold2

Acura drove up. A man got out of t he Acura and pul led him into the ba ck seat of the car. He shot the drive r thr ough the front seat and t

hen str uggl ed with the passeng er for the gun and shot hi m too. At

the trial, however, the defe ndant chang ed his story. He testifi ed that he got into the car to show Evans an d Scott wh ere to buy crac k cocai ne. He further tes tif ied that, inst ead of fol lowing hi s dire ctions , they t old him t he y wa nted to buy the cra ck in St. Louis and then began driving toward St. Louis, at wh ich po int he b egan to fear f or his l ife. His tes timony r egarding the shooti ngs and s trug gle for the gun was consi stent with h i s stateme nts to police regar ding these ev ents, except that he t estifi ed at the tri al that at least
one shot was fired when the gun wen t off duringthe st

rugg le with t

he passeng er over

the gun and that he was n ot sure w ho fired that sho t. The jury f

ound the defe nda nt guilty on both co unts. In April 2003, the court sentence d him to natural life in pri son. On direct appeal, t he defendant

rais ed only one is sue. He c onten ded th at trial c ounsel was i neffective for fa iling to r equest a j ury inst ructi on on involuntary manslaughter. This court rejec ted his content ion and aff irmedth e d ef

en da nt 's convi ction on S eptember 8, 2004. People v. Johnson , No. 5-03-0296 (2004) (unpubli shed order pursu ant to Supreme Cou rt Rule 23 (1 66 Ill. 2d R. 23 )). On January 28, 2005, the def endant fi led a pro se petition for reli ef from j udgment (735 IL CS 5/2-1401 ( West 2004)), whichthe court dismi ssed sua sponte on June 23, 2005. On Ju ly 21, 20 05, the de fendant filed an appeal of tha t ruling. On the same day, he fil ed a pro se petition pursuant to the Pos t-Convi ction Hear ing Act(A ct ) ( 725 I LCS 5/122-1 et seq. (West 2004)). In i t, he rai sed t he fol lowin g 11 c lai ms of error: 1. The trial cou rt "failed to establish proc edur al j urisdic tion" b y failing to allege that the defenda nt was a minor w hen the crime was co mmitted. 2. "Any and all " stat

utes provi ding t

hat a 16-ye ar-ol d defendant may be tri ed3

as an adult

for first- degree murder ar e unc onstit utiona l in that the y imp ermissib ly increa se the pena lties for tha t crime o ver those wh ich co uld be imp osed in juven ile
cour t. 3. The prop ortiona te pen alties clau se of th e Illinois C onstitu ti on is bei ng violat ed because there i s a harshe r penalt y for first- degree murder t han involuntary manslaughter, wh ile the o nly d ifferenc e betw een th e t wo crimes is the element of intent. 4. The defendant was t ried f or charge s upon which he was not indicted because the jury w as instructed that it could find him guilty of second -degree murde r. 5. Trialcounsel was i neffective for fa iling to ca ll Detectiv e Desmond Wil li ams to testify, an d app ell ate counse l was inef fective for

fail ing to rais e this issue on appe al. Detecti ve Will iams' s gr and jury t esti mony that a bullet hole was found i n the dr iv er 's seat of

the Acura

supporte d the defendant 's testimony that he shot t he driv er thro ugh the fr ont seat

and confli ctedwith the testi mony of other offi cers t hat no bull et holes or casings w ere found inside the car. 6. The tri al court 's denialof th e d ef en da nt 's motion to sup press h is statem ents to the poli ce was inco nsist ent with t he evi dence prese nted, and bot h tri al and app ellate cou nse l we re in effe ctive f or fa iling to cha llenge the r ulin g. 7. Tria l cou nse l wa s ine ffec tive fo r f ai li ng to al le ge in th e d ef en da nt 's motion fora new trial that the State know ingly used the f alse t esti mony of poli ce offi cers, and appe llate counsel was ineff ecti ve for

fail ing to rais e this issue ondirect appeal. The defendant

poin ts to inco nsisten cies in th e office rs' testimony to support hi s all egat ion that t he testimony was fal se. 8. The d efe ndant was denied a fair trialwhen the State presented false testimony and mad e eigh t imp rop er re mar ks duringclosi ng arguments. Tr ial counsel4

was ineff ecti ve for

failin g to o bjec t, an d ap pella te co uns el w as in effe ctive for fa iling to raise the issue o n direc t appe al. (W e note that, as th e State poin ts out in this appe al, th e d ef

en da nt 's petiti on does not specify which testimony was false or which witness testified fa lsely. It is not cle ar whether this alle gat ion ref

ers t o the te sti mony of the poli ce offi cers t

hat the defenda nt challenged in the p revious allegation of error.) 9. The tri al court abused its discretion by allow ing Detective Brian La mmers to testify about a ph otogra ph that s ho we d that th ere w ere no bush es in the vicinity whe re the defe ndant initial ly cla imed that he was ki dnaped while hiding in bushes. Trialco uns elwa s inef fective for

fail ing to object , and appell ate counse l was ineff ecti ve for

fail ing to rais e the i ssue. 10. During di scover

y, the S tate fail ed to produce a photog raph reques ted by the de fend ant tha t show ed bite marks on his ar m. Trialcounsel was ineff ecti ve for fail ing to ra ise th is issu e in h is po sttrial mo tion , an d ap pella te co uns el w as in effe ctive for failing to raise it on direct a ppea l. 11. Trial c oun sel w as ineffective for failing to inform the co urt of the precise number of t imes the de fend ant ha d bee n qu estione d by the po lice prio r to his arre st, and a ppella te cou nsel w as ineffective for failing to rais e this issu e on d irect ap peal. On September

8, 2005, the postconv icti on court di smiss ed the pet iti on as "frivol ous and patent ly without

merit " (see 725 ILCS 5/122- 2.1(a)( 2) (West 2004)) , finding that a ll 11 claims could hav e been rai sed on direct appeal and were ther efore bar red by res jud icata or waiver. The defendant a ppealed t his rul ing on S eptember 19, 2005. Th e tw o ap pea ls ha ve been co nsolidated. The Post-Conv icti on Hearing A ct prov ides a pr ocedure t o allow an i ncarcer ated defen dant to show that his convi ction result ed from a subs tanti al deni al of right s prote cted by the state or federal co nstitution. People v. Coleman , 183 I ll. 2d 366, 378-79, 701 N.E.2d5

1063, 107 0- 71 ( 199 8) (c itin g 7 25 I LCS 5/122-1 ( West 1994)). The Act prov ides a t hree-s tep process by which to adjudicate those claims. People v . Hernandez , 283 I ll. App. 3d 312, 316, 669 N.E.2d 1326, 1329 (1996). At the fir st st age, t

he postconv icti on court i s to re vie w the petiti on and dismiss it i f it "is f riv olous or i s patently without merit ." 725 I LCS 5/122- 2.1(a)( 2) (West 200 2); Hernandez , 283 I ll. App. 3d at 316, 669 N.E.2d at 1329. If the cou rt does not dis miss t

he peti tion at

the first s tag e, the cour

t must appoint counsel, who may then amend the defendant's pro se petition, and t he State must

fil e either an answer or a motion to dismiss. Hernandez , 283 I ll. App . 3d at 316 , 6 69 N .E.2d a t 1329; 72 5 ILCS 5/122-5 (West 20 02 ). If

the pet iti on is not

dismi ssed at

the second s tag e, the proceeding s move on to the third sta ge, an e vide ntiar y hearing on the defend ant's claims. Hernandez , 283 I ll. App. 3d at 316 , 669 N .E.2d a t 1329; 72 5 ILCS 5/122-6 (W est 2002). This appeal comes to us af ter a firs t-stage dism issal . In or der to su rvive a dismi ssal atthis stag e, a pro se postconv icti on petition such as the defendant's need only assert the gist of a constitutional claim. Coleman , 183 I ll. 2d at380 n.2, 7 01 N .E.2 d at 10 71 n .2; Peop le
v. Porte r , 122 I ll. 2d 64, 74, 521 N.E.2d 1158, 1161 (198 8); Hernandez , 283 I ll. App. 3d at 316, 669 N .E.2d a t 1329. T his standard is a low threshold to m eet. People v. Gaultney , 174 Il l. 2d 410, 418, 675 N.E.2d 102, 10 6 (1996 ). The threshol d is l ow because, as a pr acti cal matter, requ iri ng more than t his would deprive many pro se petition ers of th eir right to meaningful acc ess to courts. Hernandez , 283 I ll. App. 3d at 316, 669 N.E.2d at 1329; s ee also Porte r , 122 I ll. 2d at 74, 521 N.E.2d at 1161 (" 'Wh ile it is obviou s that co unse l shou ld be bette r able to more art fully draft a peti tion t

han an indi gent

petitioner uns chooled i n leg al draft ing, it i s cert ainly not clear that an indig ent pet iti oner could not present the gist of his claim so that

the trial c ourt coul d make aninitial dete rmina tion as to wh ether * ** th e claim is frivolo us' " (q uot ing People v. Baugh , 13 2 Ill. App. 3d 713, 717, 477 N.E.2d 724, 726 (1985))).6

We agree with the de fendant t hat his petition pres en ted the g ist of a const itutional claim. In supp ort of its a rgumen t t o the contrar y, the S tate fir st cont ends that all t he de fe nd an t's claims are, as the co urt below found, b arre d by waiveror res jud icata . Four claims of erro r in the p etition d id no t includ e allegatio ns of in effective a ssistanc e of ap pellate
coun sel. The defenda nt acknow ledges this. As the defen dant correctly p oints out, how ever, if some claims are subj ect t o a dismi ssal at the f irst stag e whi le othe rs are n ot, the entire postconv icti on petition mu st be doc keted for s eco nd- stage proceed ings. People v. Rivera , 198 Ill. 2d 364 , 370 -71, 7 63 N .E.2 d 30 6, 31 0 (20 01). T he State d oes n ot disp ute this p oint. Itargues , however, that the remaining sev en counts of the pet iti on could not be saved f rom waiver by t he d efen dan t's allega tion s of in effe ctive assis tance of appellate counsel because appe llate counse l was no t i neff ective f or fa il ingto r ais e the m. This argume nt is circular, requiring us to l ook beyond the waiver issue and consider

whether counselwas, as alle ged, ineff ecti ve. We thus cannot aff irm t he ruling bel ow on the ba sis of waiver or res jud icata
. The State nex t p oin ts out that none of the def

endant' s claims are suppor ted by affidavits as required b y statute. See 725 ILCS 5/122-2 (West 2004) (providingthat " [t] he petition s hall ha ve attached thereto a ffidavits, records, or other e vidence supp orting its alle gat ions or sha ll state w hy th e sam e are n ot attach ed" (e mph asis ad ded) ). Th is alone may
serve as a basis to dismiss the entire petition. People v. Collins , 202 I ll. 2d 59, 66, 78 2 N.E.2d 195, 198 (2002). Th e defendant contends, how ever, that he atta ched exhibi ts t o the petition and included cit ations to the record, whichis su fficient to meet the statutory requ iremen t. We note that t he exhibit s att ached to the de fendant' s peti tion are photocopi es of porti ons of the r ecord. Never thele ss, t he clai ms rai sed in t

he peti tionare cl aims t

hat can be decided on t

he basis of the r ecord, and mos t do include citatio ns to th e app ropria te porti ons o f the r ecord. The def endant al leg es that

the cl aims coul d not hav e been rai sed earli erdue to the ineff ecti ve ass ist ance of ap p ellate counsel, no t due to matters that are7

outsi de of the r ecord. We thus re ject the State' s contention that the petition could have been prop erly dismissed on the basis of a failure to atta ch affi davi ts or ot her supporting e vide nce. Finally, the St ate ar gues t hat each cla im, i ndivi dually, had no merit and that the postconv icti on cour

t t hus p rop erly di smi sse d th e def endant' s pe ti ti on. Th e Sta t e argues, among ot he r t hi ng s, th at (1 ) D et ec ti ve W il li am s's testimony that he saw a bullet hole in t he front seat of the car w ou ld ha ve w ea ke ne d t he de fe nd an t's clai m of sel f-def ense by showing that he had shot t

he driv er fr om behind, ( 2) trial c ounsel was not ineff ecti ve for fail ing to object to the a llegedly im prop er statem ents in th e pro secu tor's closing a rgumen ts beca use a ll
were based on reas onable i nf erences that could be drawn from the ev idence, ( 3) the defendant

wa s not p rejudic ed by De tective Lam mers's te st imony about t he photog raph showing there were no bushes where the Acura appr oached the def endant becaus e when the defendant

test ifi ed at the tri al he abandoned his story of beingkidna

ped while hi ding in the bushes, (4) the incon sistenc ies in the offic e rs' testimony do not co me "any whe re near" prov ing that t

he State k

nowingly us ed fals e testimony, and ( 5) the phot ograph of the b it e
mar ks would not hav e helped t he defendant

prove he ha d shot the v ictims in self-defense because a bite is not dead ly force. We need not consi der thes e argume nts. We agr ee with the defendant that they are the types of arguments t

he Post-Conv icti on Hearing A ctcontempl ates will be argued to the trial court at the second st age of t he procedure , atwh ich time the de fend ant w ill have th e ben efit of counsel t o respond t o them. The Act does notcontempl ate that the State will f ile any type of respons ive pleading at the first stage. Coleman , 183 I ll. 2d at379, 701 N.E.2d at 1071. Thus, a defe ndan t has n o op portu nity to re spon d to this type o f argum ent. See Gaultney , 174 Ill. 2d at 418, 675 N.E.2d at 106 (explaining t

hat, at the first s tag e, court s conside r postconviction pe titions "without any input from either side "). The defen dant a rgues, th erefor e, that th e State should not be permit

ted to make the8

argume nts it does because i t would not hav e the opport unity to rais e them i n the postconv icti on court at the first stage. See Gaultney , 174 I ll. 2d at 419, 675 N.E.2d at 107 (noti ng that

a reve rsalof a fi rst- stag e dismi ssal "is require d where the re cord shows that the [postc onvic tion] cour t sough t or relied on in put fro m the Sta te" (em phas is add ed)). T his is
a questi on we need not resol ve. The defendant acknowledg es that

the State may cont end on appeal that the allegation s raised in a po stcon viction p etition ar e frivolou s and paten tly withoutmerit on their fac e, w hile the State ackno wled ges that its a rgumen ts are limite d to this standard. The rele vant qu estion, t hen, is wh ether th e State's argum ents ar e, in fac t, addresse d to this standard. As we h av e a lr ea dy s tate d, we find t hat the y are not. A peti tion shou ld only be dism issed at the f irst stag e if " 'a

quick look at the record' " shows that the alle gat ions in it are " ' abso lutely untrue'" orwithout merit. (Emphasis added by the Rivera court.) Rivera , 198 I ll. 2d at 373, 763 N.E.2dat 311 (quoting 83d Il l. Gen. Assem., House Proceedings, June 21 , 1983, at 89 (s ta te m en ts of R ep re se nt at iv e J oh ns on )) . T he St at e's argume nts with res pect t o many of the def endant' s indi vidua l cla ims re quire us to go be yond
a "quick look" at the recor d. Altho ugh we note t hat some of

the cl aims may be dee med fri volous or patently w ithout merit on their face, w e reit erate t hat the petition may not be partially dismisse d at the fir st st age. We thus conclude that at the fir st st age t

he peti tion could not p rope rly be d ismissed as frivolou s or pa tently w ithout m erit. For the fo regoin g reas ons, we rev erse t he decisi on of the cour t dis missing the defendant's post convicti on petition. We remand for further proceedings.
Reversed; cause remande d.

GO LDE NH ER SH and STEW ART , JJ., concu r.NOS. 5-05-0461 & 5-05-0620 IN THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff -Appell ee, ) St . Clair County. ) v. ) No. 99-CF-995 ) COREY J OHNS ON, ) Ho nora ble ) Ann ette A. E ckert, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

___________________________________________________________________________________ Opini on Fi led : November 5, 2007

___________________________________________________________________________________ Justi ces : Hon orable M elissa A. Cha pman, J.,

Hon orable R ichard P. G oldenhe rsh, J., Hon orable B ruce D . Stewart, J., Concur

___________________________________________________________________________________ Attorn eys Ch arles M . Schied el, D eputy De fend er, Allen H. A ndre ws, Assistan t Appe llate for Defen der, Office o f the State Appellate D efender, Sup reme C ourt Un it, 400 W

. Appe llant Monroe, Suit e 303, P. O. Box 5240, Springfi eld, IL 62705-5240

___________________________________________________________________________________ Attorn eys Hon. R ob er t H ai da , S ta te 's Attor ney, St. Clair County, 10 Publi c Square, Bellev ill e, for IL 6222 0; N orbe rt J. G oetten , Dire ctor, Step hen E . No rris, D eputy Dire ctor, K evin Appell ee D. Sw eeney, Staff Attorney , Office of the State's Attorneys Ap pellate Prosecu tor,

730 E. Il linoi s Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

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