2021 IL App (1st) 180564-U 

 THIRD DIVISION

May 26, 2021

 

No. 1-18-0564 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) Cook County.

 ) 

v. ) No. 14 CR 0444801

 ) 

CORNELIUS DIGGINS, ) Honorable 

 ) Nicholas R. Ford,

Defendant-Appellant. ) Judge Presiding.

_____________________________________________________________________________ 

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Howse and Justice Cobbs concurred in the judgment.

ORDER

¶ 1 Held: Defendant forfeited his claim of ineffective assistance of trial counsel by failing to 

raise the issue on direct appeal. Even if not forfeited, the trial court properly 

dismissed defendant’s pro se postconviction petition at the first stage because 

defendant failed to set forth an arguable claim of ineffective assistance of trial 

counsel. 

¶ 2 Defendant Cornelius Diggins appeals the trial court’s first stage dismissal of his pro se

postconviction petition, arguing that he raised the gist of a constitutional claim that his trial 

counsel was ineffective for failing to quash his arrest.
No. 1-18-0564 

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¶ 3 In March 2014, defendant was indicted on multiple counts of aggravated criminal sexual 

assault, aggravated robbery, and aggravated kidnapping related to the February 13, 2014 sexual 

assault and robbery of T.B. in Chicago. 

¶ 4 The following evidence was presented at defendant’s 2016 bench trial. 

¶ 5 T.B. testified that at about 4 a.m. on February 13, 2014, she got off a bus on 87th Street 

and Ashland Avenue and she heard footsteps behind her as she walked down Ashland Avenue. 

When she turned to walk through an empty lot, she saw an unknown man walking behind her. 

T.B. later identified defendant at the scene as well as in court as the perpetrator. When defendant 

grabbed T.B., he told her that he had a “big a*** gun” and would shoot her if she did not comply 

with his commands. Defendant “kept putting his hands in his pocket,” which “kind of looked 

like” he had a gun. 

¶ 6 Defendant pulled her into an alley and threatened to shoot her if she looked at him. 

Defendant then searched her pockets and took her wallet and phone. Although it was dark 

outside, T.B. was able to see defendant’s face because the alley was illuminated by a streetlight. 

T.B. asked defendant not to take her wallet and phone and offered to perform oral sex for her 

belongings. She acknowledged defendant did not ask her to do that prior to her statement and she

thought she could fight him off once he returned her phone and wallet. After defendant returned 

her items, she told defendant she did not want to perform the sexual act. Defendant threatened to 

shoot her if she did not perform oral sex on him. T.B. then placed defendant’s penis in her mouth 

until he ejaculated, which T.B. spat out of her mouth. 

¶ 7 Defendant then pulled down her pants and attempted to “insert himself” in her by 

touching his penis to the outside of her vagina. Defendant was not able to fully insert his penis in 

T.B.’s vagina. T.B. pleaded with defendant not to sexually assault her and attempted to strike 
No. 1-18-0564 

3 

him with her bag. Defendant forced T.B. to perform oral sex a second time and struck her when 

she told him she did not want to do it. She felt defendant’s pockets, but she did not feel a gun.

Defendant then removed his penis from T.B.’s mouth and fled.

¶ 8 Once defendant had left, T.B. called 911 and described the offender as a black man with 

a medium complexion wearing a black “skull cap” and pea coat. Shortly thereafter, the police 

and an ambulance arrived. While she was being treated in the ambulance, an officer approached 

and told her they had a person who matched her description of the perpetrator. T.B. identified 

defendant as the man who attacked her. Following the identification, T.B. was transported to the 

hospital and a sexual assault kit was performed.

¶ 9 Officer Loughney testified he and his partner responded to a report of a sexual assault 

near 85th and Ashland. The officers spoke with T.B. at the scene and she described the offender 

as a 5’10”, 180-pound black man with a medium complexion, wearing a black skull cap, black 

pea coat, and blue jeans. Officer Loughney relayed the description of the offender over the police 

radio and called an ambulance. Later, Officer Loughney was present for the show-up 

identification and heard T.B. identify the suspect as her attacker. Officer Loughney identified 

defendant in court as the person T.B. identified at the show-up. 

¶ 10 Officer Calderon testified that he was on duty at around 4:15 a.m. on February 1, 2014. 

Calderon and his partner received a flash message regarding a sexual assault while in their 

marked vehicle, which included a description the offender as a 5’10”, 180-pound black man with 

a medium complexion wearing a black skull cap, a black pea coat, and blue jeans. While the 

officers canvassed the area near 85th Street and Racine Avenue, they noticed a man matching the 

description “from head to toe.” Officer Calderon identified defendant in court as the man he 

observed. 
No. 1-18-0564 

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¶ 11 As the officers approached defendant, who was wearing a black pea coat, defendant was 

walking fast and glanced back at the officers multiple times. When asked where he was coming 

from, defendant said he was coming from 83rd Street and Ashland. Officer Calderon then 

detained defendant and relocated to the scene for a show-up identification procedure. After T.B. 

positively identified defendant as the perpetrator, the officers took defendant into custody and 

transported him to the police station. 

¶ 12 Officer Calderon testified that defendant’s black pea coat and skull cap were removed 

because hats and outer garments are not allowed during an arrest process. He acknowledged 

defendant was wearing a hoodie sweatshirt in his booking photograph and believed defendant’s 

pea coat and skull cap were inventoried prior to taking the booking photo. According to Officer 

Calderon, defendant was wearing the pea coat and skull cap during the show-up identification. 

Officer Calderon acknowledged that he and his partner had stopped another black man who 

“somewhat” matched the description of the offender in the vicinity of the assault while they 

canvassed the area. While the officers were talking to that man, Officer Calderon noticed 

defendant, who “exactly” matched the description of the offender, due to his skull cap, pea coat, 

height, and weight.

¶ 13 Detective Wade Golab testified that after he was assigned to investigate T.B.’s sexual 

assault, he spoke with her at the hospital and learned that she had identified defendant as her 

attacker. Detective Golab then spoke with defendant at the police station at about 8:30 a.m. on 

the day of the attack. Defendant waived his Miranda rights and stated that he was at a club near 

79th and Ashland, he left that club shortly after midnight, and went to another club on Racine. 

Defendant denied assaulting or having physical contact with anyone that evening. When 

Detective Golab asked defendant why someone would accuse him of rape, defendant responded 
No. 1-18-0564 

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that if anyone accused him it would have been either a light-skinned woman from the first club 

or a dark-skinned “shorter” woman with a bag that he first saw walking on Racine and later on 

Ashland. With respect to the shorter woman, defendant said she looked like she was upset so he 

went up to her and asked her what was wrong. According to defendant, the woman said that she 

was too old for defendant and that he looked like a rapist. He then showed the girl that he had 

money and left.

¶ 14 That night after defendant had been charged, Detective Golab was informed that 

defendant wanted to speak with him again. During the second interview, defendant informed 

Detective Golab that he had lied in the prior interview and he admitted to going into the alley 

with the woman. Defendant made an agreement with the woman that she would give him oral 

sex in exchange for $30. However, defendant gave her only $10 and he believed that was the 

reason “she was lying on him.” Detective Golab acknowledged he did not memorialize 

defendant’s statement in writing or videotape. 

¶ 15 C.G. testified to previously allowed other-crimes evidence. At 10:30 p.m. on February 1, 

2008, C.G. was at her prior residence near 79th Street and Marshfield Avenue to check the mail. 

As C.G. exited the building, two men attempted to force her back inside and she identified 

defendant as one of the men. Defendant told he had a gun under his shirt, pressed it to C.G.’s 

back, and said C.G. “better” let him into the building. When she told defendant that she did not 

have access to the building, the men forced her into her car. Defendant told her he would shoot 

her if she screamed and then “grabbed and groped on [her] bottom.” Defendant got into the 

passenger seat, his friend got into the back seat, and C.G. got into the driver’s seat. Defendant 

asked C.G. for money and when she told him she did not have any, defendant said she was lying 

and screamed at her. Defendant instructed C.G. to drive, but since her car did not have gas, 
No. 1-18-0564 

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defendant told her to pull into a gas station. When C.G. parked at the gas station, defendant told 

her “he was going to do sexual things” to her, and specifically, said that he would take C.G. to 

his friend’s house and “they were going to make [her] pop pills and get [her] high and run a train 

on [her].”

¶ 16 While the other men pumped gas, defendant grabbed C.G.’s face and “shoved his tongue 

down [her] throat.” C.G. attempted to pull away from defendant, but he threatened her with his 

gun. He put his hands in between her legs and “started feeling on [her] private area” over her 

clothes, including her breasts and between her legs. She told him to stop, but defendant reminded 

her that he had a gun. As defendant’s friend was pumping gas into her car, C.G. attempted to 

“stall” and asked defendant if his friend could get her a drink from the gas station. When the 

other man exited the gas station, C.G. “darted out of the car.” She ran into the gas station and 

screamed to the security guard to call the police. A police car happened to be driving into the gas 

station at that time. While C.G. was screaming, defendant drove away in her car. The police 

chased defendant up the street and he crashed her car. C.G. reported the incident and identified 

defendant in a lineup the following day. Defendant was ultimately charged and convicted of 

vehicular hijacking. C.G. admitted that she never saw the gun that defendant purportedly 

possessed. 

¶ 17 The parties presented multiple stipulations regarding forensic evidence. Cook County 

State’s Attorney investigator Mary Ember would testify that on June 5, 2014, she collected a 

buccal swab standard from defendant and inventoried it. Forensic scientist Jennifer Wagenmaker 

would testify, as an expert in forensic biology, that she tested the sexual assault kit collected 

from T.B. for the presence of semen. No semen was identified on the oral or vaginal swabs and 

her examination of the anal swabs and the underwear were inconclusive. No saliva was indicated 
No. 1-18-0564 

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on the vaginal swabs. Forensic scientist Debra Klebacha would testify, as an expert in forensic 

DNA analysis, that she analyzed samples from both T.B. and defendant to obtain their respective 

DNA profiles. She then extracted DNA from the anal swab and the stain from T.B.’s underwear, 

but there was insufficient male DNA detected to profile.

¶ 18 After the State rested its case, defendant moved for a directed finding, which the trial 

court granted for the counts of aggravated criminal sexual assault alleging vaginal penetration. 

Defendant did not present any additional evidence in his defense. Following arguments, the court 

found defendant guilty of six counts of aggravated criminal sexual assault and one count of 

aggravated robbery. 

¶ 19 Defendant subsequently filed a motion for a new trial raising multiple claims, including 

that the trial court erred in allowing C.G.’s testimony regarding other crimes evidence. The court 

denied the motion. At the sentencing hearing, the court sentenced to two 16-year terms for 

aggravated criminal sexual assault and a 4-year term for aggravated robbery, to be served 

consecutively, for an aggregate sentence of 36 years’ imprisonment.

¶ 20 On direct appeal, defendant argued that the trial court: (1) erred in admitting the other 

crimes evidence because that offense was factually dissimilar from the charged crimes and 

unduly prejudicial; and (2) should have conducted an inquiry pursuant to People v. Krankel, 102 

Ill. 2d 181 (1984), when defendant asserted to the court that his attorney was ineffective. People 

v. Diggins, 2019 IL App (1st) 162567-U, ¶ 2. This court found that while the trial court abused 

its discretion in admitting the other crimes evidence because the prior crime was too dissimilar to 

the charged offense, the error was harmless “given the strength of the evidence against 

defendant” and we could not say that outcome would have been different if the other crimes 

evidence had been excluded. Id. ¶¶46-47. We further found that when defendant raised a posttrial 
No. 1-18-0564 

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claim of ineffective assistance of counsel, the trial court “made no further inquiry or 

determination on the record regarding whether the claim potentially had merit as it was required 

to do under Krankel.” Id. ¶ 52. We affirmed defendant’s conviction and remanded for the limited 

purpose of conducting a preliminary Krankel inquiry. Id. ¶ 53. 

¶ 21 In June 2017, while his direct appeal was pending, defendant filed his pro se

postconviction petition alleging violations of his constitutional rights: (1) the sexual assault kit 

analysis was improper; (2) his trial counsel was ineffective for failing to call Wagenmaker to 

testify for the defense; (3) “excessive confinement”; (4) the trial court erred in allowing other 

crimes evidence; (5) unlawful detention and false arrest by the police when defendant did not fit 

the description given by the victim; (6) the State failed to prove petitioner guilty beyond a 

reasonable doubt; (7) petitioner’s sentence and conviction are “void on [their] face”; (8) actual 

innocence; and (9) the prosecutor made false statements at the sentencing hearing. In September 

2017, the trial court considered each of the claims raised by defendant and found that the issues 

raised were frivolous and patently without merit and dismissed the petition.

¶ 22 In October 2017, defendant filed a pro se motion to reconsider his postconviction petition 

and realleged the claims from his petition. Defendant also asserted that he mailed affidavits and 

supporting documents in support of his claims and there was newly discovered evidence 

regarding Wagenmaker’s testimony regarding the forensic evidence. In April 2018, the trial court 

denied defendant’s motion to reconsider, finding that the court lacked jurisdiction because the 

motion was filed more than 30 days after the dismissal order. The court further held that even if 

it had jurisdiction, the motion failed to establish a basis for relief.

¶ 23 This appeal follows.
No. 1-18-0564 

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¶ 24 The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 

through 122-8 (West 2016)) provides a tool by which those under criminal sentence in this state 

can assert that their convictions were the result of a substantial denial of their rights under the 

United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West 2016); 

People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to 

constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. “A 

proceeding brought under the [Post-Conviction Act] is not an appeal of a defendant’s underlying 

judgment. Rather, it is a collateral attack on the judgment.” People v. Evans, 186 Ill. 2d 83, 89 

(1999). “The purpose of [a postconviction] proceeding is to allow inquiry into constitutional 

issues relating to the conviction or sentence that were not, and could not have been, determined 

on direct appeal.” People v. Barrow, 195 Ill. 2d 506, 519 (2001). Thus, res judicata bars 

consideration of issues that were raised and decided on direct appeal, and issues that could have 

been presented on direct appeal, but were not, are considered forfeited. People v. English, 2013 

IL 112890, ¶ 22. 

¶ 25 At the first stage, the circuit court must independently review the postconviction petition 

within 90 days of its filing and determine whether “the petition is frivolous or is patently without 

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2016). “A postconviction petition is frivolous or 

patently without merit when its allegations, taken as true and liberally construed, fail to present 

the gist of a constitutional claim.” People v. Harris, 224 Ill. 2d 115, 126 (2007). A petition is 

frivolous or patently without merit only if it has no arguable basis in law or fact. People v. 

Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacks an arguable basis in law or fact if it is “based 

on an indisputably meritless legal theory,” such as one that is “completely contradicted by the 

record,” or “a fanciful factual allegation,” including “those which are fantastic or delusional.” 
No. 1-18-0564 

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Hodges, 234 Ill. 2d at 16-17. 

¶ 26 If the court determines that the petition is either frivolous or patently without merit, the 

court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2016). At the 

dismissal stage of a postconviction proceeding, the trial court is concerned merely with 

determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity 

that would necessitate relief under the Act. Coleman, 183 Ill. 2d at 380. At this stage, the circuit 

court is not permitted to engage in any fact-finding or credibility determinations, as all wellpleaded facts that are not positively rebutted by the original trial record are to be taken as true. 

Coleman, 183 Ill. 2d at 385.

¶ 27 On appeal, defendant argues that the trial court erred in dismissing his postconviction 

petition because he presented the gist of a meritorious claim of ineffective assistance of counsel 

for failing to file a motion to quash his arrest. Defendant has not challenged the other claims 

presented in his petition on appeal and has therefore forfeited those claims. People v. Munson, 206 

Ill. 2d 104, 113 (2002) (concluding that the petitioner abandoned several postconviction claims by 

failing to raise them on appeal).

¶ 28 The State first contends that defendant did not raise a claim of ineffective assistance of 

trial counsel for failing to file a motion to quash his arrest in his postconviction petition. In his 

petition, defendant alleged his attorney was ineffective for failing to call Wagenmaker to testify. 

In a separate claim, he alleged that he was unlawfully detained by the police because he did not 

fit the description of the offender. Defendant responds that defendant sufficiently alleged that his 

trial counsel was ineffective and that his arrest lacked probable cause because he did not fit the 

description of the offender. According to defendant, these allegations support the claim of 

ineffective assistance raised on appeal. 
No. 1-18-0564 

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¶ 29 Generally, Illinois courts have held that a claim not raised in the postconviction petition 

cannot be raised for the first time on appeal. See People v. Pendleton, 223 Ill. 2d 458, 475 

(2006); People v. Jones, 213 Ill. 2d 498, 505 (2004). Section 122-2 of the Post-Conviction Act 

specifically provides that “the petition shall *** clearly set forth the respect in which petitioner’s 

constitutional rights were violated,” and, section 122-3 provides that “[a]ny claim of substantial 

denial of constitutional rights not raised in the original or amended petition is waived” (725 

ILCS 5/122-2 (West 2016); 725 ILCS 5/122-3 (West 2016)). While our supreme court may relax 

the forfeiture rule by invoking its supervisory power, this court “is not free, *** to excuse, in the 

context of postconviction proceedings, an appellate waiver caused by the failure of a defendant 

to include issues in his or her postconviction petition.” Jones, 213 Ill. 2d at 508.

¶ 30 While we are to liberally construe defendant’s allegations at this stage of postconviction 

review, he did not allege ineffective assistance related to his arrest. Rather, defendant did raise 

the basic facts of this claim in his petition in separate claims. However, even if we determine 

under a liberal construction that defendant sufficiently set forth the gist of this claim, defendant’s 

claim fails for the following reasons. 

¶ 31 Defendant’s claim could have been raised on direct appeal, and thus, it has been forfeited. 

The State points out that the facts supporting defendant’s contention that he did not match the 

description of the offender are contained in the trial court record. As previously stated, 

postconviction issues that could have been, but were not, raised on direct appeal are forfeited. 

English, 2013 IL 112890, ¶ 22. 

¶ 32 Specifically, defendant relies in his brief on trial testimony contained in the report of 

proceedings as well as his arrest photograph which was included in the common law record. The 

testimony at trial indicated that T.B. described the offender as 5’10”, 180-pound black man with 
No. 1-18-0564 

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a medium complexion wearing a black skull cap, a black pea coat, and blue jeans. Officer 

Calderon testified that defendant matched the description “from head to toe.” T.B. testified that

she identified defendant at the scene as the offender. Further, Officer Calderon explained that 

defendant was not wearing the pea coat or skull cap in his arrest photo because hats and 

outerwear are not permitted to be worn for the booking photographs. In response, defendant 

asserts that the claim has not been forfeited because additional information to support the claim 

was only available in his petition and he could not have raised this claim on direct appeal. 

However, this additional information was defendant’s own allegation that at the time he was 

arrested, he was wearing a gray hooded sweatshirt “depicted in his arrest photo,” black pants, 

and no cap. 

¶ 33 We agree with the State that this issue could have been raised on direct appeal. While 

defendant contends that he could not have raised the claim earlier, the basis for this claim is 

based on facts contained in the trial court record. As he argues, the arrest photo depicted him 

wearing a gray hooded sweatshirt without a hat. Defendant’s own allegations are premised on 

this depiction of what he was wearing that was included in the trial record. Since this claim could 

have been raised on direct appeal, it has been forfeited. See English, 2013 IL 112890, ¶ 22.

¶ 34 Forfeiture aside, we further find that defendant’s claim lacks merit because defendant 

cannot establish an arguable claim of ineffective assistance for failing to file a motion to quash 

arrest. Claims of ineffective assistance of counsel are resolved under the standard set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court delineated a 

two-part test to use when evaluating whether a defendant was denied the effective assistance of 

counsel in violation of the sixth amendment. Under Strickland, a defendant must demonstrate 

that counsel’s performance was deficient and that such deficient performance substantially 
No. 1-18-0564 

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prejudiced defendant. Strickland, 466 U.S. at 687. To demonstrate performance deficiency, a 

defendant must establish that counsel’s performance fell below an objective standard of 

reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). “A defendant is entitled to 

reasonable, not perfect, representation, and mistakes in strategy or in judgment do not, of 

themselves, render the representation incompetent.” People v. Fuller, 205 Ill. 2d 308, 331 

(2002). “Counsel’s strategic choices are virtually unchallengeable. Thus, the fact that another 

attorney might have pursued a different strategy, or that the strategy chosen by counsel has 

ultimately proved unsuccessful, does not establish a denial of the effective assistance of 

counsel.” Id. 

¶ 35 In evaluating sufficient prejudice, “[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. If a case may be disposed of on the ground of lack of 

sufficient prejudice, that course should be taken, and the court need not ever consider the quality 

of the attorney’s performance. Strickland, 466 U.S. at 697. “Strickland requires actual prejudice 

be shown, not mere speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122, 135 (2008).

¶ 36 Further, the decision whether to file a motion to quash arrest and suppress evidence is 

generally a matter of trial strategy entitled to great deference, and a defendant shows ineffective 

assistance based on the failure to file such a motion if both (1) the unargued motion was 

meritorious and (2) a reasonable probability exists that the trial outcome would have been 

different had the evidence been suppressed. People v. Gayden, 2020 IL 123505, ¶ 28. The failure 

to file a motion to suppress does not establish incompetent representation when it turns out that 

the motion would have been futile. People v. Givens, 237 Ill. 2d 311, 331 (2010). At the first 
No. 1-18-0564 

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stage of postconviction proceedings, a petition alleging ineffective assistance of counsel may not 

be dismissed if: (1) counsel’s performance arguably fell below an objective standard of 

reasonableness; and (2) the petitioner was arguably prejudiced as a result. Hodges, 234 Ill. 2d at 

17. 

¶ 37 Here, defendant cannot show that a motion to quash his arrest was arguably meritorious.

Defendant argues that he was not wearing jeans, a pea coat, or a skull cap, but instead was 

wearing a gray hooded sweatshirt, black pants, and no hat. He also contends that at the time of 

his arrest, he had facial hair, but facial hair was not included in the description of the offender. 

We note that a failure to notice facial hair is not fatal to a positive and otherwise credible 

identification. People v. Slim, 127 Ill. 2d 302, 310 (1989). 

¶ 38 “Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of 

individuals to be free from unreasonable searches and seizures.” People v. Colyar, 2013 IL 

111835, ¶ 31 (citing U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6). “This court has 

explained that ‘[t]he “essential purpose” of the fourth amendment is to impose a standard of 

reasonableness upon the exercise of discretion by law enforcement officers to safeguard the 

privacy and security of individuals against arbitrary invasions.’ ” Id. (quoting People v. 

McDonough, 239 Ill. 2d 260, 266 (2010), quoting Delaware v. Prouse, 440 U.S. 648, 653-54 

(1979)). 

¶ 39 “Probable cause to arrest exists when the facts known to the officer at the time of the 

arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has 

committed a crime.” People v. Wear, 229 Ill. 2d 545, 563-64 (2008). “That is, the existence of 

probable cause depends upon the totality of the circumstances at the time of the arrest.” Id. at 

564. “ ‘ “The standard for determining whether probable cause is present is probability of 
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criminal activity, rather than proof beyond a reasonable doubt. [Citations.]” ’ ” Id. (quoting 

People v. Garvin, 219 Ill. 2d 104, 115 (2006), quoting People v. Lee, 214 Ill. 2d 476, 485 

(2005)). Further, “probable cause does not even demand a showing that the belief that the 

suspect has committed a crime be more likely true than false.” Id. 

¶ 40 Here, the record establishes that the police had probable cause to arrest defendant and 

belies defendant’s contention that he did not match the description of the offender. Immediately 

after the assault, T.B. called 911 and described her attacker as a black man with a medium 

complexion wearing a pea coat and a black skull cap. When Officer Loughney arrived at the 

scene, T.B. described the offender as a “male black medium complexion, five-foot-ten,180 

pounds, wearing a black skullcap, black pea coat, and blue jeans.” The officer then broadcast that 

description over the police radio. 

¶ 41 Officer Calderon received a flash message over police radio about the sexual assault with 

the following description: “Male, black 5'10, 180 wearing a black skull cap, pea coat, blue 

jeans.” He and his partner then began to canvass the area for the offender. When the officer was 

near 85th and Racine, “roughly a quarter mile” from the location of the sexual assault, he 

observed an individual who fit the description “from head to toe.” Officer Calderon and his 

partner approached defendant and immediately took him to the scene of the assault for a showup. T.B. there and then identified defendant as her attacker. She further testified that during the 

show-up, defendant was wearing a pea coat and a hat. 

¶ 42 Officer Calderon then placed defendant under arrest and transported to the police station. 

During processing, defendant’s pea coat and skull cap were removed for the arrest photo. Officer 

Calderon explained that when individuals are being processed, they are not allowed to wear 

“hats, outer garments that may be covering or obstructing.” Officer Calderon believed that he 
No. 1-18-0564 

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inventoried the pea coat and hat. The officer confirmed that defendant was wearing the pea coat 

and skull cap at the time of the show-up. 

¶ 43 Defendant offers no discussion regarding the lack of probable cause other than the 

assertion that he did not fit the description and the record belies defendant’s contention. Further, 

defendant fails to argue at what point in the encounter was he considered to be under arrest. 

Nevertheless, the totality of the circumstances established that probable cause existed at the time 

of defendant’s arrest based on both T.B.’s description and subsequent identification of defendant 

as well as Officer Calderon’s testimony regarding his stop of defendant because defendant 

matched the description and was observed a quarter of a mile from the scene of the attack. Given 

these facts, a motion to quash his arrest would not have been successful. Thus, defendant’s claim 

of ineffective assistance of counsel fails and his postconviction petition was properly dismissed 

as frivolous and patently without merit.

¶ 44 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook 

County. 

¶ 45 Affirmed.