2019 IL App (1st) 152994

No. 1-15-2994 

Opinion filed June 20, 2019 

Fourth Division 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

 v. 

GERMAINE SHAW,

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 00 CR 2316 

Honorable 

Mary Margaret Brosnahan, 

Judge, presiding. 

 JUSTICE McBRIDE delivered the judgment of the court, with opinion. 

Justices Gordon and Ellis concurred in the judgment and opinion. 

OPINION

¶ 1 Defendant Germaine Shaw appeals the trial court’s order granting the State’s motion to 

dismiss his postconviction petition for relief filed under the Post-Conviction Hearing Act (Act) 

(725 ILCS 5/122-1 et seq. (West 2012)). He contends that the trial court erred in dismissing his 

petition because he made a substantial showing of actual innocence when he presented an 

affidavit averring that the deceased victim had previously admitted to misidentifying defendant 

and had named another man as the offender. 
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¶ 2 The record shows that defendant was charged by information with home invasion and 

aggravated criminal sexual assault under case No. 00 CR 2316, and home invasion under case 

No. 00 CR 2317, for offenses involving victim M.J., occurring in Chicago on or about December 

22, 1999. Defendant was also charged by indictment with home invasion under case No. 00 CR 

1799, for a separate offense involving victim Barbara Dooley, occurring in Hoffman Estates, 

Illinois, on or about August 4, 1999. 

¶ 3 At a pretrial hearing on March 21, 2002, defendant indicated to the court that he had 

decided to enter a guilty plea. However, after hearing the assistant state’s attorney (ASA) recite 

the factual bases for the offenses, defendant denied committing them and stated he wanted to go

trial. The trial judge confirmed that defendant did not wish to plead guilty, and continued the 

case for hearing on defendant’s motion to suppress statements. 

¶ 4 When the case was back on the court call one week later, defendant asked to address the 

court. Defendant apologized for his “indecisiveness about the decision,” and the judge told 

defendant that there was “no need to apologize.” Defendant continued: 

“It’s just that when [the ASA] began, you know, going over the facts of 

the case, it kind of freaked me out because I mean they [were] making me sound 

like a monster, and I assure you [Y]our Honor that I’m no monster. I’m just a 

person that was dealing with controlled substances. And I really don’t even 

remember the incidents in question. But now all of a sudden I hear that she’s 

dead. My biggest regret is that I never got a chance to apologize to her for the 

things I may or may not have committed against her. That I place myself on the 

mercy of the court that you can at least come down to something that’s a little bit 

more reasonable.” 
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¶ 5 The trial judge then stated that, for that acts that occurred, the plea offer was reasonable 

and was as low as it could go. “It’s up to you if you wish to do this,” the court continued.

Defendant agreed to plead guilty and the trial judge admonished him that there were “two 

informations and one indictment” to which he was pleading guilty. The trial judge meticulously 

reviewed the charges for each of the offenses involving both victims, M.J. and Dooley, and 

defendant confirmed that he was pleading guilty to those offenses. The judge then reviewed the 

possible penalties for the offenses and asked defendant whether, knowing the possible penalties, 

he still wished to plead guilty. Defendant indicated that he did. 

¶ 6 The judge then asked defendant if he understood that by pleading guilty, he was giving 

up his right to plead not guilty, and to force the State to prove his guilt beyond a reasonable 

doubt. Defendant stated that he did. Defendant also acknowledged that he understood the 

meaning of “a jury trial” and that he was giving up his right to a jury trial. Defendant executed a 

written jury waiver, and agreed that it was his signature on the waiver form. Defendant further 

acknowledged that he was giving up his rights to “see and hear all [the] State’s witnesses testify 

against [him], *** to have [his] attorney ask questions of those witnesses, *** to present 

evidence on [his] own behalf including [his] own testimony, or *** [to] remain silent at trial and 

[his] silence would not be used against [him].” Defendant agreed that he was pleading guilty “of 

[his] own free will,” that “no one [wa]s forcing [him] to plead guilty” and that he was not “under 

the influence of any drugs or alcohol.” 

¶ 7 The ASA then recited the factual basis for defendant’s plea. For “case [Nos.] 00-CR2316 and 2317,” the factual basis established that, around midnight on December 22, 1999, 

defendant knocked on the door of the victim, 76-year-old M.J., and indicated he needed to make 

a phone call. When M.J. allowed him inside, defendant pushed M.J. to the floor and fled from 
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the residence with her VCR. Shortly thereafter, defendant returned to M.J.’s residence, knocked 

on the door, and identified himself as a police officer. When M.J. opened the door, defendant 

forced his way into the residence. Defendant threw M.J. on her bed, and rubbed his penis against 

her vagina in an attempt to penetrate her. After several attempts at penetration, defendant stopped 

and left the residence with M.J.’s television. M.J. suffered cuts and bruises from the attacks. She 

identified defendant in a lineup, and defendant later confessed to the police and an ASA, and 

signed a written confession. 

¶ 8 For case No. 00 CR 1799, the ASA stated that the evidence would show that defendant 

pushed his way into the Hoffman Estates home of 48-year-old Barbara Dooley, “held a sharp 

pronged tool and took Ms. Dooley’s car and money from her.” Defendant was arrested driving 

Dooley’s car, was identified in a lineup, and gave a handwritten statement. 

¶ 9 Defense counsel “agree[d] that would be the testimony,” and the trial judge accepted 

defendant’s guilty plea. Defendant was then sentenced according to the plea agreement, to 28 

years’ imprisonment for aggravated criminal sexual assault and 6 years’ imprisonment for home 

invasion against M.J. in case No. 00 CR 2316, to be served consecutively, and to 6 years’ 

imprisonment for each home invasion offense in case Nos. 11 CR 2317 and 00 CR 1799 (against 

M.J. and Dooley, respectively), to be served concurrently with the sentences in case No. 00 CR 

2316. 

¶ 10 Defendant did not file a direct appeal and instead filed a pro se motion to withdraw his 

plea three years later in 2005. He argued he was taking psychotropic drugs during the 

proceedings and that defense counsel was ineffective for failing to request a fitness examination. 

The trial court denied defendant’s motion because it was not filed within 30 days of sentencing. 
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On appeal from that order, this court granted counsel’s motion to withdraw and dismissed the 

appeal. See People v. Shaw, No. 1-05-2073 (Feb. 27, 2006) (order). 

¶ 11 On August 7, 2007, defendant filed in the trial court a pro se motion to reconsider or 

reduce his sentence, arguing that his sentence should be reduced because his “DNA was not 

found in the sexual assault.” The court denied his motion to reconsider. On February 1, 2010, 

defendant filed a section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 

2010)), asserting that mandatory supervised release (MSR) terms are unconstitutional and his 

sentence was void because he was not informed of the MSR term. The trial court dismissed his 

petition.1

¶ 12 On February 28, 2013, defendant filed a pro se postconviction petition under the Act, 

arguing that (1) police officers brutalized him until he signed a “false confession,” (2) his 

attorney was ineffective for threatening to withdraw as counsel unless he pleaded guilty, and his 

plea was therefore involuntary, and (3) newly discovered evidence supported his claim of actual 

innocence. Specifically, defendant alleged that in February 2013, Andrew Coe informed him that 

M.J. admitted to Coe that she identified the wrong person as her attacker. 

¶ 13 In support of his petition, defendant attached a notarized affidavit from Coe, dated 

February 19, 2013. Coe averred that, on December 23, 1999, his grandmother’s friend, M.J., told 

him that she had been “assaulted and strong armed of several belongings” by “Anthony 

Benjamin,” whom she previously paid to do work around her house. M.J. told Coe that, after the 

incident, she was transported to the police department and “coerced to pick some gentlem[a]n 

 

1 Defendant may have filed a second section 2-1401 petition, but the record is unclear on this point. 

Regardless, that petition is not at issue in the instant case.
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out of a lineup that she never saw or knew,” and the officers forced her to pick someone who

“wasn’t the perpetrator.” Coe further averred that M.J. “express[ed] grief” for defendant but her 

family pressured her not to “correct the mistake.” Coe intentionally avoided involvement in 

defendant’s case but eventually decided to “come forward” because he felt it was his “duty as a 

born again Christian to seek justice for both victims.” Coe learned defendant’s name by sitting in 

the court hearings on this matter, was “sure” that M.J. would “proudly attest that all the 

information in [his] affidavit is 100% true if she’s called to testify,” and asserted that M.J. “is 

just being pressured by her family not to [testify] so [Coe is] her voice.” 

¶ 14 Defendant also attached his own notarized affidavit. He averred that, after being arrested 

on December 22, 1999, two police officers “smacked, punched [him] in the face and kicked 

[him] in the genitals” and threatened to have him stabbed in Cook County jail if he reported the 

incident. The officers, whose names he did not remember, instructed him to sign a statement 

drafted by an ASA, and he signed it because he feared for his life. Defendant further averred that, 

in March 2002, his attorney threatened to withdraw if he did not plead guilty. She told defendant 

that he “had no choice or defense and that if [defendant] proceeded to trial that [he] was going to 

lose.” 

¶ 15 The trial court advanced defendant’s petition and appointed the public defender’s office 

to represent him. On April 16, 2015, the State filed a motion to dismiss, arguing that defendant’s 

postconviction petition was untimely and his actual innocence claim was uncorroborated. The 

State further argued that defendant’s claim regarding police brutality was waived when he 

pleaded guilty, and he failed to demonstrate ineffective assistance of counsel where his plea was 

knowing and voluntary. 
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¶ 16 Following arguments, the court granted the State’s motion to dismiss defendant’s 

petition. The court found that defendant’s coerced confession claim was untimely under the Act 

and, in any event, he waived the claim by pleading guilty. Further, the court concluded that 

defendant’s ineffective assistance of counsel claim was also untimely and rebutted by the record, 

which showed he pled guilty of his own free will. Finally, the court found that defendant failed 

to make a substantial showing of a constitutional violation based on actual innocence because the 

newly discovered evidence set forth in his petition was inadmissible hearsay and, therefore, 

would not change the result of a trial. This appeal followed. 

¶ 17 On appeal, defendant does not challenge the trial court’s dismissal of his claims relating 

to his confession and plea due to ineffective assistance of trial counsel. Rather, he contends only 

that the trial court erred by dismissing his petition where he made a substantial showing of actual 

innocence by attaching Coe’s affidavit, which alleged that M.J. admitted to falsely identifying 

defendant as the offender. 

¶ 18 The Act provides for a three-stage process by which a defendant may assert that his 

conviction was the result of a substantial denial of his constitutional rights. People v. Beaman, 

229 Ill. 2d 56, 71 (2008). At the first stage, the trial court must review the postconviction petition 

and determine whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-

2.1(a)(2) (West 2012). If the petition is not dismissed within 90 days at the first stage, counsel is 

appointed and the petition advances to the second stage. Id. § 122-2.1(a), (b). 

¶ 19 The instant case involves the second stage of postconviction proceedings, during which 

the dismissal of a petition is warranted only when the allegations in the petition, liberally 

construed in light of the original trial record, fail to make a substantial showing of a 

constitutional violation. People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, “all well-
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pleaded facts that are not positively rebutted by the trial record are to be taken as true.” People v. 

Pendleton, 223 Ill. 2d 458, 473 (2006). The defendant “bears the burden of making a substantial 

showing of a constitutional violation.” Id. We review de novo the trial court’s dismissal of 

defendant’s postconviction petition without an evidentiary hearing. Pendleton, 223 Ill. 2d at 473. 

¶ 20 To succeed on a claim of actual innocence, a petitioner must present evidence that is (1) 

newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that it 

would probably change the result on retrial. Coleman, 2013 IL 113307, ¶ 96. Evidence is newly 

discovered if it was discovered after trial and the defendant could not have discovered it sooner 

through due diligence. People v. Ortiz, 235 Ill. 2d 319, 334 (2009). 

¶ 21 Initially, we note that this case presents a unique situation, different from the more typical 

postconviction petition following a defendant’s conviction after a trial. Here, defendant did not 

have a trial on the charges, and instead chose to plead guilty. Accordingly, we do not have a trial 

record against which to compare defendant’s proffered evidence. Moreover, defendant did not 

plead guilty to a single offense, but he pleaded guilty in a single plea agreement to three charging 

instruments involving two different victims. However, defendant’s proffered evidence in his 

postconviction petition relates only to the offenses against one victim—M.J.—and he makes no 

argument regarding his innocence of the offense involving the other victim—Dooley. 

¶ 22 Based on the above and following oral argument in this case, this court entered an order 

directing the parties to file supplemental briefs regarding two issues: (1) the impact, if any, of the 

fact that defendant pleaded guilty to multiple offenses involving two victims, where his 

postconviction actual innocence claim relates only to offenses against one of the two victims; 

and (2) what this court should consider in determining whether proffered evidence meets the test 
No. 1-15-2994 

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for actual innocence when a defendant makes a postconviction actual innocence claim following 

a pretrial guilty plea, and accordingly, no trial record or evidence exists.

¶ 23 In defendant’s supplemental brief, he contends that this court should review his actual 

innocence claim regarding M.J., “separate and apart” from the case involving Dooley. In his 

reply brief, he acknowledges that if he prevails after an evidentiary hearing, his guilty plea in the 

Dooley case will have to be vacated, and he contends that the court could proceed in any of the 

following ways: “(1) the parties leave the guilty plea and sentence untouched, or (2) they 

renegotiate the sentence and, if negotiations fail, (3) [defendant] withdraws his guilty plea and 

the case is set for trial.” The State responds that the stipulated factual bases for the offenses 

against both victims should be considered in evaluating defendant’s actual innocence claim, and 

that the guilty pleas “must rise and fall together as part of a single, non-severable plea 

agreement.” The State asserts, however, that the fact that he pleaded guilty in the separate case 

“does not impact this Court’s ability to address his claim of actual innocence in the M.J. cases.” 

In reply, defendant argues that the factual basis of the crime against Dooley should not be 

considered because it is speculative whether such evidence would be admissible at trial, and his 

involvement in another offense would go to his credibility, which is not an appropriate 

consideration at the second stage of postconviction proceedings. 

¶ 24 Regarding the import of the lack of a trial record due to defendant’s guilty plea, 

defendant asserts that this court should consider the allegations in his petition against the record 

of his guilty plea, particularly the factual basis offered by the State and the report of proceedings. 

The State initially contends that this court should not consider defendant’s actual innocence 

claim at all, since it does not involve a claim that his plea was coerced. Alternatively, the State 
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contends that we should look to the entire record, including the factual bases offered by the State 

for each offense and defendant’s confessions, when evaluating his actual innocence claim. 

¶ 25 In this case, defendant argued that his plea was involuntary in his petition, but he does not 

challenge the validity of his plea on appeal. In his brief, he asserts that his petition’s claims 

regarding his confession and plea demonstrate that the record does not rebut his allegation that 

someone else committed the offenses, but argues only that newly discovered evidence in the 

form of Coe’s affidavit supports an actual innocence claim. Thus, the voluntariness of 

defendant’s plea is not at issue because he abandoned that claim on appeal, and we therefore 

presume that his plea was valid. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (“Points not argued are 

waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”). 

Because defendant failed to challenge the voluntariness of his plea on appeal, he has 

procedurally forfeited review of this argument, and we thus turn to defendant’s actual innocence 

claim. 

¶ 26 However, before evaluating defendant’s claim on appeal, this court must distinguish 

between two forms of actual innocence claims: a gateway claim of actual innocence with an 

underlying constitutional challenge, and a freestanding claim of actual innocence that is itself the 

substantive basis for relief. 

¶ 27 In the federal system, a habeas petitioner may overcome a procedural bar to habeas 

review by bringing a gateway claim of actual innocence such that the petitioner may obtain 

review of the underlying constitutional merits of his or her procedurally defaulted claim. Herrera 

v. Collins, 506 U.S. 390, 404 (1993). The United States Supreme Court has defined a petitioner’s 

gateway claim of actual innocence as “ ‘not itself a constitutional claim, but instead a gateway 

through which a habeas petitioner must pass to have his otherwise barred constitutional claim 
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considered on the merits.’ ” Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera, 506 

U.S. at 404). The petitioner’s claim of actual innocence is not itself a basis for a court to vacate 

his conviction; rather, the claim of actual innocence depends on the validity of his underlying 

constitutional claims. See id. 

¶ 28 In Schlup, the United States Supreme Court held that a petitioner asserting a gateway 

claim must demonstrate that in light of all the evidence, including the new evidence, “it is more 

likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable 

doubt.” Id. at 327. This more-likely-than-not standard “ensures that petitioner’s case is truly 

‘extraordinary,’ [citation] while still providing petitioner a meaningful avenue by which to avoid 

a manifest injustice.” Id. (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).

¶ 29 By contrast, a number of states, including Illinois, acknowledge freestanding claims of 

actual innocence. See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri, 

163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against 

infliction of cruel and unusual punishment in the New Mexico Constitution protects actually 

innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.” 

Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of 

punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the 

punishment is indeed grossly out of proportion to the severity of the crime.”).

¶ 30 In People v. Washington, 171 Ill. 2d 475, 480 (1996), the Illinois Supreme Court 

considered a petitioner’s freestanding claim of actual innocence following a murder conviction, 

to determine whether an “Illinois constitutional right is implicated in such a freestanding claim of 

innocence, since Post-Conviction Hearing Act relief is limited to constitutional claims.” Our 

supreme court acknowledged that the United States Supreme Court found that a freestanding 
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claim of innocence was “not cognizable as a fourteenth amendment due process claim” under the 

United States Constitution (id. at 485), but concluded that the Illinois Constitution required 

“additional process be afforded in Illinois when newly discovered evidence indicates that a 

convicted person is actually innocent” “as a matter of both procedural and substantive due 

process” (id. at 487). The supreme court found, “[i]n terms of procedural due process, *** that to 

ignore such a claim would be fundamentally unfair” and “[i]mprisonment of the innocent would 

also be so conscience shocking as to trigger operation of substantive due process.” Id. at 487-88. 

¶ 31 The Illinois Supreme Court explained: 

“The [United States] Supreme Court rejected substantive due process as a 

means to recognize freestanding innocence claims because of the idea that a 

person convicted in a constitutionally fair trial must be viewed as guilty. That 

made it impossible for such a person to claim that he, an innocent person, was 

unfairly convicted. 

We think that the Court overlooked that a ‘truly persuasive demonstration 

of innocence’ would, in hindsight, undermine the legal construct precluding a 

substantive due process analysis. The stronger the claim—the more likely it is that 

a convicted person is actually innocent—the weaker is the legal construct 

dictating that the person be viewed as guilty. A ‘truly persuasive demonstration of 

innocence’ would effectively reduce the idea to legal fiction.” Id. at 488. 

¶ 32 Despite Illinois generally recognizing freestanding claims of actual innocence, Illinois 

courts—and indeed, other courts throughout the country—have struggled with whether to 

recognize, and how to evaluate, such claims of actual innocence after a defendant has pleaded 

guilty. 
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¶ 33 Some Illinois courts have expressed doubt as to whether a freestanding actual innocence 

claim may be brought after a valid and voluntary guilty plea, presuming that in order to proceed 

on such a claim, a defendant must challenge the knowing and voluntary nature of the plea. In 

People v. Barnslater, 373 Ill. App. 3d 512, 527 (2007), the appellate court initially found that the 

defendant failed to make a conclusive showing of his actual innocence on the merits. Later 

however, the court noted that—although not briefed or argued by the parties—the court “strongly 

question[ed] whether a claim for relief under the Post-Conviction Hearing Act premised upon 

newly discovered evidence of actual innocence can suffice to raise a cognizable constitutional 

deprivation where the challenged conviction was entered pursuant to a plea of guilty.” The court 

stated that where a defendant claims his plea was coerced, that coercion constitutes the 

constitutional deprivation required to obtain postconviction relief; a defendant’s claim of actual 

innocence after a prior admission of guilt does not. See also People v. Simmons, 388 Ill. App. 3d 

599, 614 (2009) (noting that courts have “expressed our doubt as to whether a defendant who 

pleads guilty may even legitimately assert a postconviction claim of ‘actual innocence.’ ” ). 

¶ 34 Other Illinois courts, however, have found actual innocence claims to be cognizable 

under the Act, after a guilty plea. In People v. Knight, 405 Ill. App. 3d 461, 471-72 (2010), the 

third district appellate court reversed the summary dismissal of the defendant’s second 

postconviction petition alleging new evidence of actual innocence. The court specifically held 

that the “defendant can raise his freestanding claim of actual innocence in postconviction 

proceedings” and that “[d]efendant’s guilty plea does not prohibit him from raising [such a] 

claim in postconviction proceedings.” 

¶ 35 Our supreme court has not yet spoken on the issue, and, until very recently, no Illinois 

court had found such claims to be categorically barred. 
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¶ 36 In March 2019, however, one fourth district appellate panel has concluded that a 

defendant’s prior guilty plea barred him from raising an actual innocence claim. In People v. 

Reed, 2019 IL App (4th) 170090, the fourth district court concluded that a defendant remains 

bound by his guilty plea, and a claim of actual innocence cannot be entertained, where the 

validity of the guilty plea is undisputed on appeal. We will more fully analyze the fourth district 

court’s decision in Reed later in this opinion. 

¶ 37 Some courts in our sister jurisdictions have rejected freestanding claims of actual 

innocence where a petitioner has pleaded guilty. See, e.g., Williams v. State, 2017 Ark. 313, at 4,

530 S.W.3d 844 (“Williams’s argument that he is actually innocent of the offense to which he 

pleaded guilty does not establish a ground for the writ because it constitutes a direct attack on the 

judgment.”); Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008) (rejecting an actual innocence 

claim, noting the difficulty in “harmoniz[ing] th[e] new position taken by the defendant with the 

fact that he originally admitted to committing the crime by his guilty plea,” given that “[b]oth his 

confession and his new claims cannot be true,” and stating that “[a] plea of guilty thus forecloses 

a post-conviction challenge to the facts adjudicated by the trial court’s acceptance of the guilty 

plea and resulting conviction”); Woods v. State, 379 P.3d 1134, 1142 (Kan. Ct. App. 2016) 

(stating that a claim of actual innocence is “insufficient to override the longstanding rule that a 

freely and voluntarily entered guilty plea bars a collateral attack on the sufficiency of the 

evidence”); Yonga v. State, 130 A.3d 486, 492 (Md. 2016) (concluding “that a person who has 

pled guilty may not later avail himself or herself of the relief afforded by the Petition for a Writ 

of Actual Innocence”).

¶ 38 The highest court in New York recently reversed an appellate decision recognizing an 

actual innocence claim by a defendant who had pleaded guilty, holding that “in the absence of a 
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motion to withdraw the plea or to bring a postconviction motion to vacate the plea as 

involuntary, the plea and the resulting conviction *** are presumptively voluntary, valid and not 

otherwise subject to collateral attack.” (Internal quotation marks omitted.) People v. Tiger, No. 

62, 2018 WL 2974466, at *5 (N.Y. June 14, 2018). The court observed that “there are significant 

public policy reasons for upholding plea agreements, including conserving judicial resources and 

providing finality in criminal proceedings,” before concluding that “[a]llowing a collateral attack 

on a guilty plea obtained in a judicial proceeding that comported with all of the requisite 

constitutional protections on the basis of a delayed claim of actual innocence would be 

inconsistent with our jurisprudence and would effectively defeat the finality that attends a 

constitutionally obtained guilty plea.” Id.

¶ 39 The New York high court also described a state statute added by the state legislature in 

2012, which allowed “a specific form of newly discovered evidence—DNA evidence—as a basis 

to collaterally attack a guilty plea at the postconviction stage.” Id. at *4. The court explained that 

this “narrow exception for new DNA evidence as a basis to vacate a conviction in plea cases” 

was “undoubtedly due to the recognition of the exceptional nature of DNA evidence as a reliable 

scientific tool to conclusively determine the identity of an assailant.” The court concluded that 

the legislature did not “contemplate a separate constitutional claim to vacate a guilty plea based 

on new evidence as to guilt or innocence” and that the legislative purpose was to “adhere to the 

principle that a voluntary and solemn admission of guilt in a judicial proceeding is not cast aside 

in a collateral motion for a new factual determination of the evidence of guilt.” Id.

¶ 40 Courts in other states, however, have permitted freestanding claims of actual innocence 

despite a petitioner’s guilty plea. These courts have noted that courts should “give great respect 

to knowing, voluntary, and intelligent pleas of guilty”; however, courts “should not foreclose 
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relief because a defendant pleaded guilty when the policy behind granting relief on a bare 

innocence claim is the same.” Ex parte Tuley, 109 S.W.3d 388, 391-93 (Tex. Crim. App. 2002) 

(“we will not preclude actual innocence claims because the conviction was the result of a guilty 

plea”); People v. Schneider, 25 P.3d 755, 760-61 (Colo. 2001) (en banc) (Concluding that 

prohibiting actual innocence claims following guilty pleas claims was not supported by the 

relevant Colorado Rule of Criminal Procedure, and that it would not “represent[ ] the just and 

fair outcome.” The Colorado court “recognize[d] that defendants do choose to enter guilty pleas 

for reasons other than clear guilt,” although it “hasten[ed] to add that the court system must treat 

such pleas as final for most purposes.”).

¶ 41 Most recently, the Supreme Court of Iowa considered this issue and concluded that the 

Iowa Constitution permits freestanding actual innocence claims to applicants for postconviction 

relief “even though they entered [guilty] pleas knowingly and voluntarily,” overruling a line of 

cases “holding that defendants may only attack the intrinsic nature—the voluntary and intelligent 

character—of their pleas.” Schmidt, 909 N.W.2d at 781.

¶ 42 The Iowa high court noted that innocent defendants may choose to plead guilty for a 

variety of reasons, explaining that when “ ‘the deal is good enough, it is rational to refuse to roll 

the dice, regardless of whether one believes the evidence establishes guilt beyond a reasonable 

doubt, and regardless of whether one is factually innocent.’ ” Id. at 787 (quoting Rhoades v. 

State, 880 N.W.2d 431, 436-38 (Iowa 2016)). The court further stated that 

“[p]leading guilty does not automatically mean the defendant is actually guilty. 

Sometimes, an innocent defendant is choosing the lesser of two evils: pleading 

guilty despite his or her actual innocence because the odds are stacked up against 
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him or her, or going to trial with the risk of losing and the prospect of receiving a 

harsher sentence.” (Emphasis in original) Id. at 788. 

¶ 43 After noting that pleading guilty does not necessarily exclude an individual’s actual 

innocence, the Supreme Court of Iowa concluded that an “innocent person has a constitutional 

liberty interest in remaining free from undeserved punishment” and that holding “a person who 

has committed no crime in prison strikes the very essence of the constitutional guarantee of 

substantive due process.” Id. at 793. 

¶ 44 After careful consideration, we conclude that a freestanding actual innocence claim may 

be brought after a guilty plea, and that a defendant need not challenge the knowing and voluntary 

nature of his or her plea to bring such a claim. The wrongful imprisonment of an innocent person 

violates procedural and substantive due process under the Illinois Constitution and, thus, a 

freestanding claim of actual innocence is cognizable under the Act. See Washington, 171 Ill. 2d 

at 487-89 (“In terms of procedural due process, we believe that to ignore such a claim [of actual 

innocence] would be fundamentally unfair. [Citations.] Imprisonment of the innocent would also 

be so conscience shocking as to trigger operation of substantive due process.”). 

¶ 45 As our supreme court has stated, “no person convicted of a crime should be deprived of 

life or liberty given compelling evidence of actual innocence.” (Emphasis added). Id. at 489. In 

so holding, our supreme court made no distinction between defendants whose convictions arise

out of a trial or out of a guilty plea, and we believe that such a tenet applies equally in either 

circumstance. Our supreme court recognized in Washington that “a ‘truly persuasive 

demonstration of innocence’ would, in hindsight, undermine the legal construct precluding a 

substantive due process analysis” and “would effectively reduce the idea [that the person be 

viewed as guilty] to legal fiction.” Id. at 488. We find no reason to categorically preclude 
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individuals from similarly presenting “ ‘truly persuasive demonstration[s] of innocence,’ ” 

(emphasis added) (id.) merely because their convictions arose from guilty pleas. 

¶ 46 As courts in other jurisdictions have recognized, there can be no doubt that there are 

some circumstances in which individuals who are actually innocent may, voluntarily, choose to 

plead guilty. Regardless of guilt or innocence, some individuals may choose to accept a guilty 

plea rather than face the uncertainty of a trial. See Tuley, 109 S.W.3d at 393 (“The guilty plea 

process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation. 

The decision to plead guilty, as we have seen in this case, may be influenced by factors that have 

nothing to do with the defendant’s guilt. The inability to disprove the State’s case, the inability to 

afford counsel, the inability to afford bail, family obligations, the need to return to work, and 

other considerations may influence a defendant’s choice to plead guilty or go to trial.”); Schmidt, 

909 N.W.2d at 787 (“Simply put, in economic terms, defendants engage in a cost-benefit 

analysis [when deciding whether to enter a guilty plea]. Entering into a plea agreement is not 

only rational but also more attractive than dealing with the uncertainty of the trial process and the 

possibility of harsher sentences.” When the plea deal is good enough, “ ‘it is rational to refuse to 

roll the dice, regardless of whether one believes the evidence establishes guilt beyond a 

reasonable doubt, and regardless of whether one is factually innocent.’ ”). Because a valid guilty 

plea does not necessarily preclude a petitioner’s actual innocence, we see no reason to continue 

to confine that person, over evidence that would conclusively establish his innocence. 

¶ 47 As stated previously, one court in Illinois has rejected such a conclusion, finding that a 

defendant’s prior guilty plea bars him from later raising an actual innocence claim. Reed, 2019 

IL App (4th) 170090. 
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¶ 48 In so holding, the court in Reed relied on our supreme court’s decision in People v. 

Cannon, 46 Ill. 2d 319, 321 (1970), specifically referencing a sentence noting that the 

defendant’s claim “cannot be entertained” in light of the “full[] and careful[] admonish[ment]” 

prior to his guilty plea. The fourth district court recognized that the passage it relied on was 

“obiter dictum, an inessential remark on a point not argued by counsel,” but contended that the 

court was bound to follow obiter dictum of the supreme court, unless there was a contrary 

supreme court decision. Reed, 2019 IL App (4th) 170090, ¶¶ 18-21. 

¶ 49 We initially note that the court in Reed is only the third court to cite Cannon for any 

purpose, since its publication almost 50 years ago, and no case, other than Reed, has read 

Cannon to create such a categorical bar. 

¶ 50 Nonetheless, in the five-paragraph-long opinion in Cannon, the supreme court noted that 

the defendant entered a guilty plea to indecent liberties with a child, and was sentenced to a term 

of “not less than four nor more than ten years.” Cannon, 46 Ill. 2d at 320. Thereafter, the 

defendant filed a postconviction petition, which was denied. The court then stated that the “only 

one of the defendant’s contentions that has been argued in this court concerns the legality of the 

election of the board of supervisors of De Witt County under the one-man, one-vote principle,” 

before finding that contention to be “without merit.” Id.

¶ 51 The court then made an aside remark that it had also examined the other claims that were 

included in his postconviction petition, but that were not argued before the court. The court 

described those claims as amounting to an “unsupported assertion that the accusation against him 

was false” and that the victims’ stories were coerced. Id. at 321. The court then noted that 

“[b]efore his plea of guilty was accepted, the defendant, represented by appointed counsel, was 

fully and carefully admonished by the trial judge, and in the light of that admonition, the 
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defendant’s present claim cannot be entertained.” Id. It is this line from which the court in Reed

concludes that the supreme court has suggested that there exists a categorical bar on raising an 

actual innocence claim after a guilty plea. 

¶ 52 In addition to the line relied on by the court in Reed being obiter dictum, it is this court’s 

opinion that the statement is too imprecise to create such a significant new rule. We also note 

that the court in Cannon described the defendant’s postconviction claims as unsupported, and it 

was in that context, as well as the defendant’s guilty plea, in which the supreme court found that 

his claim could not be entertained. Particularly in light of our supreme court’s relatively more 

recent statements in Washington, 171 Ill. 2d at 489, that “no person convicted of a crime should 

be deprived of life or liberty given compelling evidence of actual innocence,” we do not believe 

that we can read Cannon to express the supreme court’s explicit intention to prohibit actual 

innocence claims following guilty pleas in all circumstances.

¶ 53 Moreover, we note that the court in Reed neglected to consider another recent legal 

development, namely the legislature’s 2014 amendment to section 116-3 of the Code, which 

allows a defendant to make a motion in the circuit court for “fingerprint, Integrated Ballistic 

Identification System, or forensic DNA testing *** on evidence that was secured in relation to 

the trial or guilty plea which resulted in his or her conviction.” (Emphasis added). 725 ILCS 

5/116-3 (West 2014). This statute shows the legislature’s recent recognition that evidence which 

can be used to prove a person’s innocence can arise either after a trial, or after a guilty plea. 

Particularly in light of this statute, we believe that the holding in Reed would lead to unintended 

consequences, in that a defendant who had previously pleaded guilty could move for, and 

receive, conclusive evidence of his innocence from forensic testing, but be foreclosed from 

instituting a postconviction proceeding to raise such a claim. 
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¶ 54 Accordingly, we disagree with the analysis in Reed, and find that a defendant may bring 

an actual innocence claim after a guilty plea, without challenging the validity of the plea. 

¶ 55 That being said, however, it is important to create a workable standard to analyze actual 

innocence claims following guilty pleas in order to balance the interest in ensuring that 

individuals who are actually innocent are not unjustly imprisoned, with the interest in upholding 

the finality and solemnity of guilty pleas. To serve these interests, other jurisdictions that allow 

freestanding actual innocence claims after guilty pleas require that an individual bringing an 

actual innocence claim after a guilty plea meet a higher burden than is required for those 

bringing such claims after a trial. See e.g., Schneider, 25 P.3d at 761-62 (“A defendant who 

voluntarily and knowingly enters a plea accepting responsibility for the charges is properly held 

to a higher burden in demonstrating to the court that newly discovered evidence should allow 

him to withdraw that plea.”).

¶ 56 These jurisdictions employ varying standards in analyzing actual innocence claims after 

guilty pleas. See Jamison v. State, 765 S.E.2d 123, 129-30 (S.C. 2014) (Holding that a 

defendant’s guilty plea does not preclude postconviction relief, but that “a valid guilty plea must 

be treated as final in the vast majority of cases.” Accordingly, when an “applicant seeks relief on 

the basis of newly discovered evidence following a guilty plea, relief is appropriate only where 

the applicant presents evidence showing that (1) the newly discovered evidence was discovered 

after the entry of the plea and, in the exercise of reasonable diligence, could not have been 

discovered prior to the entry of the plea; and (2) the newly discovered evidence is of such a 

weight and quality that, under the facts and circumstances of that particular case, the ‘interest of 

justice’ requires the applicant’s guilty plea to be vacated. In other words, a [postconvictionrelief] applicant may successfully disavow his or her guilty plea only where the interests of 
No. 1-15-2994 

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justice outweigh the waiver and solemn admission of guilt encompassed in a plea of guilty and 

the compelling interests in maintaining the finality of guilty-plea convictions.”); In re Bell, 170 

P.3d 153, 157 (Cal. 2007) (requiring applicants to show that the new evidence “ ‘undermine[s] 

the entire prosecution case and point[s] unerringly to innocence or reduced culpability’ ” 

(internal quotation marks omitted)); Schneider, 25 P.3d at 761–62 (requiring defendant to show 

that in light of the new evidence, “the charges that the People filed against the defendant, or the 

charge(s) to which the defendant pleaded guilty were actually false or unfounded”). 

¶ 57 Other states require a defendant to meet a higher standard when bringing a freestanding, 

rather than a gateway, claim of actual innocence, but do not differentiate between claims brought 

after a trial or after a plea. These states generally employ a “clear and convincing” standard, 

under which a petitioner making a freestanding actual innocence claim must show by clear and 

convincing evidence that no reasonable juror would have convicted him in light of the new 

evidence. See Tuley, 109 S.W.3d at 392, 397 (requiring that the defendant establish by clear and 

convincing evidence that no rational jury would convict the applicant in light of the new 

evidence); Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (en banc); Schmidt, 

909 N.W.2d at 797 (holding that freestanding actual innocence claims were available to 

applicants even after a guilty plea, and that to succeed on such a claim, “the applicant must show 

by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no 

reasonable fact finder could convict the applicant of the crimes for which the sentencing court 

found the applicant guilty in light of all the evidence, including the newly discovered evidence”); 

State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of 

proof for a habeas claim based upon a freestanding claim of actual innocence should strike a 

balance between these competing standards and require the petitioner to make a clear and 
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convincing showing of actual innocence that undermines confidence in the correctness of the 

judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y. Crim. Ct. 2003); Miller v. State, 2014 

UT App 280, ¶ 6, 340 P.3d 795 (per curiam); see also Miller v. Commissioner of Correction, 700 

A.2d 1108, 1130-31 (Conn. 1997) (adopting a clear and convincing standard and also requiring 

the petitioner to show that “no reasonable fact finder would find the petitioner guilty”). 

¶ 58 After recognizing that a defendant who pleaded guilty could raise an actual innocence 

claim, the Colorado Supreme Court in Schneider explained that it had previously “only 

articulated the standard applicable to the determination of when a defendant who has been 

convicted at trial may seek a new trial based upon newly discovered evidence.” (Emphasis 

added.) Schneider, 25 P.3d at 761. Specifically, in People v. Gutierrez, 622 P.2d 547, 559-60 

(Colo. 1981) (en banc), the Colorado Supreme Court had determined that a defendant claiming 

actual innocence after a trial conviction is required to show 

“ ‘ “that the evidence was discovered after the trial; that defendant and his counsel 

exercised diligence to discover all possible evidence favorable to the defendant 

prior to and during the trial; that the newly discovered evidence is material to the 

issues involved, and not merely cumulative or impeaching; and that on retrial . . . 

the newly discovered evidence must be of such a character as to probably bring 

about an acquittal verdict if presented at another trial.” ’ ” Schneider, 25 P.3d at 

761 (quoting Gutierrez, 622 P.2d at 559-60). 

¶ 59 The court noted, however, that it had not yet “examined the proper standard for when a 

defendant may withdraw a properly entered guilty plea under circumstances of newly discovered 

evidence,” and that the Gutierrez test was not appropriate in such circumstances. Id. The court 
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“distinguish[ed] the circumstances here from those in Gutierrez by noting that 

here, it was not an independent trier of fact that determined the defendant's guilt 

based upon sworn trial testimony—it was the defendant who acknowledged his 

own guilt. Because of that simple fact, the trial court handling the postconviction 

proceeding is necessarily in a different position. That court does not have the full 

record of the prior trial, but it does have the defendant’s own statements of guilt. 

Gutierrez presumes that the trial judge is in a position to weigh the new testimony 

against that provided at the prior trial and assess whether an acquittal verdict 

would enter based upon the new evidence. In the circumstance in which there 

never was a trial on the charges, the trial court is hampered in that assessment. 

Furthermore, there must be some consequence attached to the decision to plead 

guilty. A defendant who voluntarily and knowingly enters a plea accepting 

responsibility for the charges is properly held to a higher burden in demonstrating 

to the court that newly discovered evidence should allow him to withdraw that 

plea. Defendants should be allowed to withdraw properly entered guilty pleas 

only in order to avoid manifest injustice. [Citation.].” Id.

¶ 60 The Colorado court then adopted “a modified standard” for actual innocence claims after 

guilty pleas, in which the 

“defendant must present evidence from which the trial court may reasonably 

conclude that: (1) the newly discovered evidence was discovered after the entry of 

the plea, and, in the exercise of reasonable diligence by the defendant and his or 

her counsel, could not have been earlier discovered; (2) the charges that the 

People filed against the defendant, or the charge(s) to which the defendant 
No. 1-15-2994 

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pleaded guilty were actually false or unfounded; and (3) the newly discovered 

evidence would probably bring about a verdict of acquittal in a trial.” Id., at 761-

62. 

¶ 61 The court noted that the first and third prongs were essentially taken from the Gutierrez

test, but the second prong was “articulate[d] for the first time in this case.” Id. at 762. Rather than 

requiring only that the evidence be “ ‘material to the issues involved, and not merely cumulative 

or impeaching,’ ” as in the Gutierrez test after a trial conviction (id. at 761), a defendant claiming 

actual innocence after a guilty plea had to meet a stricter standard, showing that the charges 

“were actually false or unfounded” (id. at 762). The court held that “this formulation evolves 

from the standards set forth by this court in Gutierrez and maintains the appropriate balance 

between finality and fundamental fairness.” Id.

¶ 62 As stated above, the Supreme Court of Iowa also concluded that a defendant could raise 

an actual innocence claim after a guilty plea; however, the supreme court articulated a different 

standard for addressing such claims. The Iowa high court “balance[d] the interest of an innocent 

defendant and that of the state” and concluded that “after pleading guilty, applicants claiming 

actual innocence must meet the clear and convincing standard,” i.e., “the applicant must show by 

clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no 

reasonable fact finder could convict the applicant of the crimes for which the sentencing court 

found the applicant guilty in light of all the evidence, including the newly discovered evidence.”

Schmidt, 909 N.W.2d at 797. The court found that adopting the clear and convincing standard 

“simultaneously vindicate[d]” the principle that “it is far worse to convict an innocent person 

than to acquit a guilty one” while “recogniz[ing] the interest of the state in finality of criminal 

litigation.” Id. 
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¶ 63 Although other jurisdictions have elevated the standard for stating a claim of actual 

innocence in cases of guilty pleas, the creation of a new standard in Illinois should come from 

the Illinois Supreme Court, which possesses supervisory powers which we, as an appellate court, 

lack. See People v. Lyles, 217 Ill. 2d 210, 216 (2005) (citations omitted) (“While the appellate 

court may exercise significant powers on review of a criminal case, it does not possess the same 

inherent supervisory authority conferred on [the supreme] court by article VI, section 16, of the 

Illinois Constitution”). Further, any new elevated standard in this case, would not be outcome 

determinative, because we find that defendant has failed to make a substantial showing of a 

constitutional violation under current authority. 

¶ 64 As stated above, the trial court in this case concluded that defendant had failed to make a 

substantial showing of actual innocence because his proposed newly discovered evidence 

constituted inadmissible hearsay, and therefore, it would not change the result of a trial. The 

supreme court, however, recently adopted and amended Illinois Rule of Evidence 1101, to add 

“postconviction hearings” to a list of proceedings to which the rules of evidence—including the 

rules against hearsay—“do not apply.” Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). In this appeal, 

the State claims, and defendant acknowledges, that Coe’s affidavit consists of hearsay. However, 

defendant relies on Rule 1101(b)(3) to claim that because the rules of evidence do not apply, an 

evidentiary hearing is still warranted.

¶ 65 Many prior Illinois cases have relied on the general rule that hearsay is insufficient to 

support a petition under the Act. See People v. Morales, 339 Ill. App 3d 554, 565 (2003) 

(hearsay affidavits are generally insufficient to support postconviction claims); People v. 

Salgado, 2016 IL App (1st) 133102, ¶ 47 (affidavits containing only hearsay are generally 

insufficient to warrant a third-stage hearing); People v. Gray, 2011 IL App (1st) 091689, ¶ 16 
No. 1-15-2994 

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(noting that the content of an affidavit was “no more than hearsay, which, as a genral rule, is 

insufficient to support a claim” under the Act); People v. Wallace, 2015 IL App (3d) 130489, ¶¶ 

25, 28 (The affidavit providing that a fellow inmate confessed to shooting the victim while the 

inmate and the affiant were incarcerated together was inadmissible hearsay, which could not “be 

the basis of a defendant’s postconviction petition.” “Inadmissible hearsay cannot constitute 

substantive evidence by any definition.”); People v. Coleman, 2012 IL App (4th) 110463, ¶¶ 54-

55 (concluding that an affidavit supporting a postconviction petition “should consist of factual 

propositions to which the affiant could testify in an evidentiary hearing” and where the affidavit 

was composed of inadmissible hearsay, the “allegations by themselves did not merit further 

proceedings”). 

¶ 66 Many of these cases, however, were decided prior to the rule change. Since then, only a 

few cases have analyzed Rule 1101 or the interplay of the rule and the requirements to state a 

claim of actual innocence under the Act. See People v. Velasco, 2018 IL App (1st) 161683, ¶ 119 

(finding that the hearsay affidavits at issue in that case, indicating that a gang member had 

bragged to one of the affiants about shooting the victim, were admissible under Rule 1101(b)(3)

and must be taken as true, at the second stage of the proceedings, when determining whether to 

advance the petition to a third-stage evidentiary hearing); People v. Gibson, 2018 IL App (1st) 

162177, ¶ 138 (finding pursuant to Rule 1101, that a hearing under the Torture Inquiry and 

Relief Commission is a “postconviction hearing” to which the Rules of Evidence do not apply);

People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 166-67 (Gordon, J., specially concurring). 

¶ 67 We point out that Rule 1101(b)(3) appears to conflict with the requirement that a 

postconviction actual innocence claim must be of such a conclusive character that it would 

probably change the result on retrial. If a trial judge must determine whether proposed evidence 
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would probably change the result on retrial, that necessarily encompasses a determination of 

whether that evidence would be admissible at a retrial. As the trial court acknowledged, if such 

evidence would not be admissible in a retrial, it would be impossible for it to change the result. 

Despite this apparent conflict, the change to Rule 1101 makes the evidence rules “inapplicable” 

to postconviction proceedings, and it was in effect when the trial court considered defendant’s 

postconviction petition. The trial court, however, did not have the benefit of any of the cases that 

have since considered the change to Rule 1101 at that time, and we will consider the hearsay 

affidavit in evaluating defendant’s claim. 

¶ 68 Additionally, the parties agree generally that the court should consider the allegations in 

his petition against the record of his guilty plea, in particular the factual basis presented at the 

guilty plea hearing regarding victim M.J., but they dispute whether the factual basis regarding 

the offense against victim Dooley should be considered. The State contends that the evidence of 

defendant’s offense against Dooley would likely be admissible at a trial as other crimes 

evidence, on retrial based on Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011), which states 

generally that evidence of other crimes is not admissible to prove action in conformity therewith, 

but that such evidence may “be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Defendant however, claims that the admissibility of such evidence is “speculative,” and thus, the 

factual basis involving Dooley should not be considered. 

¶ 69 We agree with the State. As we explained above, the supreme court has made the Rules 

of Evidence “inapplicable” to postconviction proceedings. See Ill. R. Evid. 1101(b)(3) (eff. Apr. 

8, 2013). Importantly, defendant has not challenged the validity of his guilty plea to the charge 

against Dooley in any way. Accordingly, we conclude that the entire record, including evidence 
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related to the offense against Dooley, may be considered against the allegations in defendant’s 

postconviction petition in determining whether defendant has shown a substantial deprivation of 

his constitutional rights to warrant a third stage evidentiary hearing. Nonetheless, even if we 

considered only the evidence related to his plea to the offense against M.J., and declined to 

consider the evidence regarding Dooley, the result would be the same, as explained below. 

¶ 70 Assuming that defendant’s proffered evidence is newly discovered, material, and not 

cumulative, it is not of such a conclusive character that it would probably change the result on 

retrial—the most important element of an actual innocence claim. Washington, 171 Ill. 2d at 489. 

¶ 71 Without engaging in any credibility determinations, the evidence presented here is not of 

the character that would support an actual innocence claim. Defendant presents the affidavit of a 

non-eyewitness, who avers to a conversation he had with the victim more than 13 years’ before 

he inscribed his affidavit. This evidence, in our opinion, is not “compelling evidence,” which 

presents a “truly persuasive demonstration of innocence.” Washington, 171 Ill. 2d at 488-89. 

¶ 72 Our supreme court has noted that recantation testimony is regarded as inherently 

unreliable and a court will not grant a new trial on that basis absent extraordinary circumstances.

People v. Sanders, 2016 IL 118123, ¶ 33; People v. Morgan, 212 Ill. 2d 148, 155 (2004); People 

v. Steidl, 142 Ill. 2d 204, 253-54 (1991). Because recantation testimony is “inherently suspect” 

and “treated with caution,” it is “not sufficient to require a new trial absent proof the witness’s 

earlier testimony was perjured.” People v. Beard, 356 Ill. App. 3d 236, 242 (2005). Although a 

determination of the reliability of such evidence is not made at the motion to dismiss stage of 

postconviction proceedings (Sanders, 2016 IL 118123, ¶ 33), the proposed evidence here, from 

an affiant who claims to have spoken to the now-deceased victim near the time of defendant’s 

trial, is not actually recantation evidence. 
No. 1-15-2994 

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¶ 73 Taking the contents of the affidavit as true, specifically that M.J. told Coe that she 

misidentified defendant, M.J.’s statement to Coe at most contradicts the record in this appeal. 

The record of defendant’s guilty plea shows that defendant entered a valid and voluntary guilty 

plea, and that he understood the charges, the penalties, and the rights he was giving up by 

pleading guilty. The factual basis for defendant’s plea established that after knocking on M.J.’s 

door and indicating he needed to make a phone call, defendant pushed M.J. to the floor and fled 

from her residence with her VCR. He returned shortly thereafter, and identified himself as a 

police officer before forcing his way into the residence and sexually assaulting M.J. Defendant 

then left the residence with M.J.’s television. The record also shows that M.J. identified 

defendant in a lineup. Defendant confessed to the police and an assistant State’s Attorney, and 

signed a written confession. 

¶ 74 Against this strong evidence of guilt, defendant presents the affidavit of Coe, who claims 

that he spoke to M.J. in 1999, and that she told him that she had misidentified defendant. At 

most, such evidence could merely impeach or contradict the record, which indicates that M.J. 

identified defendant as her attacker and that defendant confessed (see Arizona v. Fulminante, 499 

U.S. 279, 296 (1991) (internal quotations and citation omitted) (holding that a confession may be 

the “most probative and damaging evidence that can be admitted” against a defendant))—and 

pleaded guilty—to doing so. See People v. Adams, 2013 IL App (1st) 111081, ¶ 36 (Evidence of 

actual innocence “must support total vindication or exoneration, not merely present a reasonable 

doubt” as to the petitioner’s guilt.); People v. Collier, 387 Ill. App. 3d 630, 636–37 (2008) (when 

evidence merely impeaches or contradicts trial testimony, it is not typically of such conclusive 

character as to justify postconviction relief); People v. Ortiz, 235 Ill. 2d 319, 335 (2009) 

(impeachment of a prosecution witness is an insufficient basis for granting a new trial). In such 
No. 1-15-2994 

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circumstances, the proposed evidence is not of such conclusive character that it would probably 

change the result on retrial. See Barnslater, 373 Ill. App. 3d at 515-16, 522-23 (the defendant 

failed to make a substantial showing of actual innocence when he submitted an affidavit from the 

victim who averred that the defendant had not sexually assaulted her and that her mother had 

forced her to implicate defendant. The victim’s “recantation affidavit would merely impeach her 

stipulated testimony in the factual basis for the plea” and evidence “which merely impeaches a 

witness will typically not be of such conclusive character as to justify postconviction relief.” 

(Internal quotation marks omitted)); People v. Smith, 177 Ill. 2d 53, 85-86 (1997) (noting that 

evidence that the central trial witness who testified against the defendant had told fellow inmates 

that the defendant was not involved in the killing did not require a new trial. Such evidence could 

show only that the witness “had a bias, interest, or motive to testify falsely” and “would be 

admissible only for purposes of impeaching” the witness, which was “an insufficient basis for 

granting a new trial.”). Accordingly, we find that defendant has not made a substantial showing 

of a constitutional violation to warrant a third stage evidentiary hearing. 

¶ 75 For the foregoing reasons, the judgment of the circuit Court of Cook County is affirmed. 

¶ 76 Affirmed.