1 

Rule 23 order filed 2015 IL App (5th) 130189 

April 3, 2015; 

Motion to publish granted NO. 5-13-0189 

April 20, 2015. 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

 FIFTH DISTRICT 

________________________________________________________________________ 

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

 ) Circuit Court of 

 Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 05-CF-1784 

 ) 

GARY WINGATE, ) Honorable 

 ) Michael N. Cook, 

 Defendant-Appellant. ) Judge, presiding. 

________________________________________________________________________ 

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

 Presiding Justice Cates and Justice Stewart concurred in the judgment and opinion. 

 

 OPINION 

¶ 1 The defendant, Gary Wingate, appeals the dismissal, by the circuit court of St. 

Clair County and at the second stage of proceedings, of his petition for postconviction 

relief. For the following reasons, we affirm. 

¶ 2 FACTS 

¶ 3 The facts necessary to our disposition of this appeal follow. They are derived 

from this court's review of the record on appeal, as well as from our earlier disposition in 

this case, in which, on direct appeal, we affirmed the defendant's convictions and his 

sentence. People v. Wingate, No. 5-09-0267 (2010) (unpublished order under Supreme 
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Court Rule 23). As we explained therein, the defendant was charged with first-degree 

murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon, all 

in connection with the shooting death of Darlene Russell on November 1, 2005. The trial 

court granted the defendant's motion to sever the aggravated-unlawful-use-of-a-weapon 

charge, and the State elected to proceed on the remaining counts. 

¶ 4 Andre Garrett testified at the defendant's jury trial as follows. On November 1, 

2005, he was living with his wife, Darlene Russell, at 5204 Caseyville Avenue in 

Washington Park, Illinois. Garrett saw the defendant, who lived nearby, walking down 

52nd Street. Garrett approached the defendant, whom he had known for more than 20 

years, to speak with the defendant about some money the defendant owed Russell. As 

Garrett approached, the defendant raised his fists and began to talk "crazy." Fearing that 

the defendant would strike him, Garrett punched the defendant, knocking him down. 

Garrett testified that he was a former amateur boxing champion and that he "never owned 

a gun, never carried a gun." After knocking down the defendant, Garrett went back into 

his house. Russell then went to speak with the defendant. Garrett followed her, telling 

her to come back inside. Garrett saw the defendant in a nearby yard and saw a person he 

knew as "Torre" (Torrian Hopkins), who had been with the defendant when Garrett 

punched him, across the street, walking across a field. Garrett urged Hopkins to stop and 

talk with him, but Hopkins continued walking and said, "I ain't got nothing to do with it." 

¶ 5 Garrett then heard a sound he described as "du-du-du-du-du." He turned and saw 

the defendant on his knees and firing a weapon in Garrett's direction. At first, Garrett 

thought the defendant was firing blanks, but when he heard gunfire strike his house, he 
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and Russell ran to the house. As Russell was standing on the porch reaching for the door, 

she was struck and killed by gunfire. The shooting stopped, and when Garrett arrived at 

the porch, he saw blood on it. Garrett turned and saw the defendant fleeing through an 

alley carrying "a big rifle." 

¶ 6 Keith McNeal testified that on November 1, 2005, he was at the home of his 

cousin, Bryan Turner, at 1542 North 52nd Street, helping Turner repair an automobile. 

Just to the south of Turner's house was the house where the defendant stayed. McNeal 

saw Garrett and the defendant and heard them arguing about money. McNeal went inside 

to get some tools, and when he came out, he saw the defendant lying on the ground. The 

defendant got up and said that he was "going to get" Garrett. Turner then sent McNeal to 

a nearby liquor store to purchase some soft drinks. As McNeal was walking back to 

Turner's house, he heard the sound of gunfire. As he reached Turner's house, he saw 

"somebody" walk down the alleyway and turn left onto 49th Street. McNeal could not 

positively identify the man he saw in the alley, but his height and build were similar to 

the defendant's. 

¶ 7 Bryan Turner testified that he saw Garrett strike the defendant and knock him to 

the ground. After Garrett left, the defendant got up and walked away. Douglas Scott 

testified that on November 1, 2005, he was at Turner's house helping Turner and McNeal 

work on a car. The defendant was outside the house next door. Garrett walked up and 

the two men began arguing about money. Garrett struck the defendant, knocking him to 

the ground. Garrett walked away. After about 10 or 15 minutes, the defendant got up 

and went into his house. Russell came over to Garrett and tried to calm him down. The 
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defendant came out of his house carrying an "AK-47" and went towards the alley. The 

defendant then began shooting at Garrett. The defendant knelt as he fired. He stood up, 

walked toward Garrett's house, knelt, and then fired some more. Garrett was running 

from the defendant, toward his house. Scott saw Russell "laying [sic] there." The 

defendant then ran away, still holding the rifle. 

¶ 8 Willie T. Lee testified that on November 1, 2005, he was outside his automobile 

repair business when he heard the sound of gunfire. Shortly thereafter, Lee saw "[a] 

black guy" with a rifle coming up the alley towards him. The man turned down a street, 

walked up three houses, and went into an abandoned building. Lee did not see the man's 

face clearly but described him as being short, with a stocky build. Dennis Janis, a crime 

scene investigator with the Illinois State Police, testified that on November 1, 2005, he 

was directed to the vicinity of Caseyville Avenue and 52nd Street in Washington Park, 

Illinois. Garrett's house had sustained damage that was "consistent with gunshot 

damage." Janis recovered "a projectile" from the side door of the house and "a bullet 

jacket" from a "porch post." Two vehicles near the house had also been damaged by 

gunfire. Janis recovered "a projectile and a fragment" from one of the vehicles. Janis 

searched the vicinity around Garrett's house and found a number of "discharged 7.62 

cartridge cases." Janis also searched an abandoned house nearby, where he found an 

"assault rifle" under a mattress. The following day Janis attended Russell's autopsy. The 

pathologist removed a "jacket and fragment" from Russell's body, which Janis collected 

and preserved. After the autopsy, Janis returned to the Garrett residence, where he found 

further gunshot damage inside the kitchen. He also found several bullets and bullet 
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fragments inside the residence. 

¶ 9 Benjamin Koch, a crime scene investigator with the Illinois State Police, testified 

that when he arrived at the crime scene, a detective asked him to help search an 

abandoned house nearby. In the living room, Koch lifted a mattress off the floor and 

found an "assault rifle." Koch contacted Janis, who took possession of the rifle. James

Hall, a forensic scientist specializing in firearms and tool mark identification, testified 

that his testing demonstrated that the cartridge cases and the bullet and bullet fragments 

found at the scene, as well as the bullet fragments recovered from Russell's body, all 

came from the rifle. 

¶ 10 The defendant testified as well, stating that on November 1, 2005, he and his 

nephew, Torrian Hopkins, were standing outside his house when they were approached 

by Andre Garrett. The defendant had borrowed money from Russell and was late paying 

it back. When Garrett asked the defendant if he had Russell's money, the defendant 

replied that his check had not arrived and that the defendant would pay him as soon as it 

did. When the defendant looked away briefly, Garrett struck him twice, knocking him 

down. When he regained consciousness, he got up off the ground. Hopkins was gone 

and no one else was around. The defendant then walked a few feet to the fence in his 

yard and grabbed his "assault rifle." The defendant claimed that he retrieved his rifle 

because Garrett was "a drug dealer" and "a loan shark" who was "known for carrying 

guns," and the defendant assumed that Garrett "had gone home to get a gun." The 

defendant had been in Garrett's house before and had seen guns there. As the defendant 

stood by his fence holding the rifle, he saw Garrett emerge from his house and begin to 
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walk in the defendant's direction. The defendant stepped out into the street to show 

Garrett that he was armed, but Garrett continued walking toward him. Although the 

defendant did not see a weapon in Garrett's possession, he began firing at Garrett in order 

to frighten him. He was not trying to hit Garrett. When the defendant started shooting, 

Garrett stopped. The defendant then stopped shooting. He saw Garrett "reach[ ] down 

his side like he was going in his pocket." Suspecting that Garrett was reaching for a 

weapon and not wanting to wait until Garrett had the weapon in hand, the defendant 

began firing again. Garrett turned and ran towards his house but stopped and knelt 

between two vehicles in his driveway. Believing that Garrett was going to start shooting 

at him, the defendant continued to fire in the direction of the vehicles. At that point, the 

defendant was trying to hit Garrett but was acting out of fear for his own safety and a 

desire to defend himself. The defendant did not see Russell at any point during the entire 

episode. After he stopped shooting, the defendant ran down the alley and to a nearby 

abandoned house, where he left the assault rifle. He then went to a friend's house in East 

St. Louis, where police arrested him the following day. 

¶ 11 At the conclusion of the trial, the jury was instructed on both self-defense and 

second-degree murder, under both the serious-provocation prong and the unreasonablebelief prong, as well as first-degree murder and aggravated discharge of a firearm, the 

two charged offenses. The jury found the defendant guilty of first-degree murder and 

aggravated discharge of a firearm. 

¶ 12 On November 26, 2006, the defendant filed a posttrial motion for a new trial, 

arguing, inter alia, that the State failed to prove him guilty beyond a reasonable doubt of 
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the charges. On April 13, 2007, he filed an amended posttrial motion arguing that trial 

counsel, Karen Craig, had rendered ineffective assistance of counsel for failing to call 

Torrian Hopkins as a witness because Hopkins could have testified that Garrett was 

armed with a firearm when he approached the defendant. On March 7, 2008, the 

defendant filed a second amended posttrial motion, adding an allegation that Craig had 

rendered ineffective assistance by failing to argue that the defendant was unfit to stand 

trial. The defendant also filed a petition pursuant to section 104-11 of the Code of 

Criminal Procedure of 1963 (725 ILCS 5/104-11 (West 2006)) requesting the trial court 

to appoint an expert to examine the defendant and to determine whether the defendant 

had been fit to stand trial. The trial court appointed Dr. Daniel Cuneo to examine the 

defendant. 

¶ 13 On November 12, 2008, a hearing was held on the defendant's fitness petition and 

on the ineffective-assistance allegations of his posttrial motion. The defendant testified 

that he had told Craig that Hopkins had witnessed the incident but that she failed to 

contact him. The defendant also testified that at the time of the trial he was "hearing 

voices" and "seeing things" and that he did not understand the nature and purpose of the 

proceedings against him. The defendant testified that he had asked Craig to request a 

fitness hearing but that she had not done so. The defendant introduced into evidence the 

August 31, 2003, reports of Drs. Patel and Bermani, which indicate that the defendant 

suffers from major depression, and the July 8, 2004, and September 14, 2004, reports of 

Dr. Katzman, which indicate that the defendant suffers from schizoaffective disorder. 

¶ 14 Dr. Cuneo testified that he is a clinical psychologist and has performed between 
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4,000 and 5,000 fitness examinations. Dr. Cuneo examined the defendant's medical 

records and interviewed him on several occasions. It was Dr. Cuneo's opinion that the 

defendant was feigning his reported psychiatric symptoms to avoid prosecution. Dr. 

Cuneo opined that at the time of his trial the defendant had been able to understand the 

nature and purpose of the proceedings against him and was able to assist in his own 

defense. 

¶ 15 Defense counsel Karen Craig testified that when she first spoke with the 

defendant, he had indicated that a person he knew as "Tori" (Torrian Hopkins) had been 

present during his argument with Garrett but that he did not know "Tori's" last name or 

address. The defendant also told Craig that Hopkins had already left the scene when the 

defendant regained consciousness and went to retrieve his rifle. Shortly before trial Craig 

again spoke with the defendant regarding Hopkins, but the defendant still could not 

provide her with any more information regarding him. Craig explained that because the 

defense strategy of self-defense turned on what happened after the defendant had 

retrieved his rifle and was approached by Garrett the second time, any testimony Hopkins 

could provide would be of limited value because he had already left the scene by then. 

Craig further testified that at no time did she observe anything regarding the defendant's 

demeanor that would lead her to suspect that there was a bona fide doubt regarding his 

fitness to stand trial. 

¶ 16 The trial court denied the petition for a fitness determination, finding that the 

defendant had been fit to stand trial. The trial court also denied the defendant's second 

amended posttrial motion with respect to the allegations of ineffective assistance of 
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counsel, finding that Craig had not been ineffective for having failed to pursue the 

Hopkins matter further, given the defendant's inability to demonstrate that Hopkins could 

have provided any pertinent information. 

¶ 17 On February 19, 2009, the defendant filed a third amended posttrial motion, 

arguing, inter alia, that subsequent to his trial and to the filing of his original posttrial 

motion, he learned of "newly discovered evidence" which would support his claim of 

self-defense. Specifically, the defendant alleged that Torrian Hopkins would testify that 

the defendant saw Garrett with a gun prior to shooting at him. Attached to the motion 

was an affidavit from Hopkins wherein Hopkins averred that after Garrett knocked the 

defendant to the ground, he went into his house and came back out with a gun in his 

hand. It was after the defendant saw the gun that he went and got his own rifle and began 

shooting at Garrett. 

¶ 18 A hearing on the defendant's third amended posttrial motion was held on March 

12, 2009. Torrian Hopkins testified that on November 1, 2005, he was talking to the 

defendant when Garrett approached and asked the defendant for the money he owed 

Russell. The defendant said he did not have it because his check had not arrived. Garrett 

became angry and told the defendant that he then owed double the amount. When the 

defendant stated that he would not pay double, Garrett punched him, knocking him down. 

As Hopkins helped the defendant up, Garrett walked away and went into his house. 

Hopkins then started walking towards the middle of the street. He saw Garrett coming 

back out of his house carrying something that appeared to be a gun. As Hopkins 

continued walking, he heard some gunshots. He then "struck off" across the street. On 
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cross-examination, however, Hopkins stated that he had not seen a gun but had 

"assumed" that Garrett had a gun and that other people had said that Garrett had a gun. 

The trial court denied the defendant's third amended posttrial motion, finding that 

Hopkins's testimony would not lead to a different verdict on a retrial and that the 

remaining claims did not warrant a new trial. 

¶ 19 A sentencing hearing was held on April 20, 2009. The defendant was sentenced to 

50 years' imprisonment. The defendant subsequently filed a motion to reconsider his 

sentence, arguing that for a 46-year-old man, a 50-year sentence was tantamount to a life 

sentence. The trial court denied the motion, finding that while the possibility of 

rehabilitation was an important consideration, a 50-year sentence was appropriate given 

the defendant's criminal history. 

¶ 20 After this court affirmed the defendant's convictions and sentence on direct appeal, 

the defendant, on October 20, 2011, filed pro se a petition for postconviction relief. 

Therein, the defendant claimed that, based upon "newly discovered evidence," he was 

"actually innocent" of the crimes of which he was convicted. Attached to the petition 

was the affidavit of one Jeff Mosley, dated April 29, 2011, who averred that he too 

witnessed the events of November 1, 2005. Mosley averred that he had been conversing 

with Garrett, that he watched the first encounter between Garrett and the defendant from 

"about 25 feet away," and that Garrett twice struck the defendant in the face with a silver 

handgun, knocking the defendant down. Mosley averred that Garrett then walked past 

Mosley and into Garrett's home. Mosley averred that Mosley "stayed standing there and 

waiting on him to come back out," and that when Garrett did come back outside, "[a]bout 
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two minutes" later, Garrett did so "with his gun in his hand." Mosley averred that he 

observed the defendant "grab a big gun *** and point it in [Garrett's] direction," and 

that because both men now had guns, Mosley "took cover and continued to watch." He 

averred that during this second encounter with the defendant, Garrett raised "his gun in 

the direction of" the defendant, and that when the defendant then opened fire, Garrett 

"took off running back towards his house and when he got there he ducked in between his 

trucks in the driveway." Mosley did not describe what happened next, nor did he 

describe the killing of Russell by the defendant. Mosley further averred that he waited 

several years to come forward because he was a "close friend" of Garrett and Russell and 

had "mixed emotions about coming forward." He also averred, "During all the 

commotion between [the defendant] and [Garrett] it was impossible for [the defendant] to 

know I was out there or I had witness [sic] what [Garrett] did and attempted to do to [the 

defendant]." 

¶ 21 Counsel was appointed for the defendant and an amended petition for 

postconviction relief was filed on September 28, 2012. A second amended petition for 

postconviction relief was filed by counsel on December 21, 2012 (the petition). It alleged 

ineffective assistance of trial counsel, including on the basis of the failure of counsel to 

locate witness Jeff Mosley prior to trial, and it alleged actual innocence on the basis of 

Mosley's affidavit, which was again attached to the petition as an exhibit. The State 

moved to dismiss the petition, and a hearing was held on the State's motion on March 20, 

2013. At the conclusion of the hearing, the trial court dismissed the petition, and this 
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timely appeal followed. 

¶ 22 ANALYSIS 

¶ 23 On appeal, the defendant contends the petition should have advanced to a thirdstage evidentiary hearing because the petition "made a substantial showing that [the 

defendant] was actually innocent based on Jeff Mosley's affidavit." He claims "Mosley's 

affidavit constitute[s] newly discovered evidence because neither [the defendant], nor his 

attorney, could have discovered that Mosley" was a witness to the events of November 1, 

2005. He also claims that had the jury heard Mosley's version of events, "the result of the 

trial would have likely been different." The State counters that the defendant's claim, as 

supported by Mosley's affidavit: (1) is positively rebutted by the record; (2) does not 

establish that the defendant is actually innocent; (3) cannot be construed to be newly 

discovered evidence; and (4) would not probably change the outcome of a new trial. 

¶ 24 We begin by noting our standard of review. When a trial court dismisses a 

petition for postconviction relief at the second stage of proceedings, we review that 

dismissal de novo, taking as true all well-pleaded facts that are not positively rebutted by 

the trial record. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). To be entitled to a 

third-stage evidentiary hearing, a petition for postconviction relief must make "a 

substantial showing of a violation of constitutional rights." People v. Coleman, 183 Ill. 

2d 366, 381 (1998). In Illinois, petitioners may "assert a freestanding claim of actual 

innocence based on newly discovered evidence." People v. Ortiz, 235 Ill. 2d 319, 333 

(2009). The evidence that supports such a claim "must be newly discovered; material and 

not merely cumulative; and 'of such conclusive character that it would probably change 
13 

the result on retrial.' " Id. (quoting People v. Morgan, 212 Ill. 2d 148, 154 (2004)). 

"Newly discovered" evidence is "evidence that has been discovered since the trial and 

that the defendant could not have discovered sooner through due diligence." Id. at 334. 

"The focus of a freestanding claim of actual innocence is on the new evidence itself and 

whether it would totally vindicate or exonerate the defendant." People v. Flowers, 2015 

IL App (1st) 113259, ¶ 33. Where, as in the case before us, a claim of actual innocence is 

dismissed at the second stage of proceedings, "the relevant question is 'whether the 

petitioner has made a substantial showing of actual innocence such that an evidentiary 

hearing is warranted.' " Id. (quoting People v. Lofton, 2011 IL App (1st) 100118, ¶ 34). 

Moreover, "newly discovered evidence 'which merely impeaches a witness' will typically 

not be of such conclusive character as to justify postconviction relief." People v. 

Barnslater, 373 Ill. App. 3d 512, 523 (2007) (quoting People v. Chew, 160 Ill. App. 3d 

1082, 1086 (1987)); see also People v. Harris, 154 Ill. App. 3d 308, 319 (1987) ("Newly 

discovered evidence which merely has the effect of impeaching, discrediting, or 

contradicting a witness does not afford a basis for a new trial.").

¶ 25 For the reasons that follow, we affirm the ruling of the trial court. The first reason 

we affirm is that with regard to the requirement that the newly discovered evidence be of 

such conclusive character that it would probably change the result on retrial (see People 

v. Ortiz, 235 Ill. 2d 319, 333 (2009)), we agree with the reasoning of the Barnslater and 

Harris courts, and conclude that any evidence Mosley might offer, which we take as true 

for purposes of this appeal, would merely impeach Garrett's testimony that he "never 

owned a gun, never carried a gun," and thus would not justify postconviction relief. See 
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People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007) ("newly discovered evidence 

'which merely impeaches a witness' will typically not be of such conclusive character as 

to justify postconviction relief" (quoting People v. Chew, 160 Ill. App. 3d 1082, 1086 

(1987))); see also People v. Harris, 154 Ill. App. 3d 308, 319 (1987) ("Newly discovered 

evidence which merely has the effect of impeaching, discrediting, or contradicting a 

witness does not afford a basis for a new trial."). Therefore, we decline to conclude that 

Mosley's proffered impeachment testimony is of such conclusive character that it would 

probably change the result on retrial. It simply is not. 

¶ 26 A second, and independent, reason that we affirm the ruling of the trial court is 

that we do not agree with the defendant's claim that Mosley's affidavit meets the criteria 

to be construed as "newly discovered" evidence on the basis of the defendant's bald 

assertions, in his brief on appeal, that "[t]here was no reason to know of Mosley's 

presence at the scene *** before Mosley stepped forward several years later" and that 

"neither [the defendant], nor his attorney, could have discovered that Mosley" was a 

witness to the events of November 1, 2005. The appellate court has previously ruled that 

a defendant seeking relief on the basis of newly discovered evidence bears the burden of 

demonstrating "that there has been no lack of due diligence on his [or her] part." People 

v. Harris, 154 Ill. App. 3d 308, 318 (1987). The appellate court's ruling in Harris is 

consistent with the requirement, discussed above, that for purposes of seeking 

postconviction relief, "newly discovered" evidence must be "evidence that has been 

discovered since the trial and that the defendant could not have discovered sooner 

through due diligence." People v. Ortiz, 235 Ill. 2d 319, 334 (2009). In People v. 
15 

Barnslater, 373 Ill. App. 3d 512, 525-27 (2007), the appellate court held that a defendant 

was not entitled to an evidentiary hearing where his petition and accompanying 

documents, even when taken as true and liberally construed in the defendant's favor at the 

second stage of proceedings, failed to make a substantial showing that the defendant 

could not have discovered the purportedly "newly discovered" evidence sooner through 

due diligence on the defendant's part. 

¶ 27 In his affidavit, Mosley claims he waited several years to come forward because 

he was a "close friend" of Garrett and Russell and had "mixed emotions about coming 

forward." Even if this assertion is treated as a statement of fact, and therefore is taken at 

this point in the proceedings as true, it merely excuses Mosley's failure to come forward 

sooner on his own accord, and it does not address the question of the due diligence of the 

defendant in independently discovering Mosley as a witness. Mosley does not aver that 

he was unavailable at any time prior to coming forward, and makes no other averment 

that would allow us to conclude that he would not have offered his affidavit or testimony, 

if asked, prior to the defendant's trial. Nor does Mosley make any other averment that 

would allow us to conclude that he "essentially made himself unavailable as a witness," 

as did the witness in Ortiz. See 235 Ill. 2d at 334. Although Mosley speculates in his 

affidavit, "During all the commotion between [the defendant] and [Garrett] it was 

impossible for [the defendant] to know I was out there or I had witness [sic] what 

[Garrett] did and attempted to do to [the defendant]," such speculation does not amount to 

a statement of fact. To the contrary, it is a nonfactual and nonspecific assertion that 

amounts to a conclusion; therefore, this court need not treat it as a well-pleaded fact that 
16 

must be taken as true at this stage of the proceedings and that is sufficient to require an 

evidentiary hearing in this case. See, e.g., People v. Rissley, 206 Ill. 2d 403, 412 (2003). 

¶ 28 Indeed, unlike the affidavit in question in Ortiz, which demonstrated that the 

newly discovered witness was standing in a location "where he would not have been seen 

by [the] defendant" (235 Ill. 2d at 334), Mosley's affidavit contains no such statement of 

fact. To the contrary, the facts contained within Mosley's affidavit, taken as true, are that 

he and Garrett were conversing just prior to Garrett's first encounter with the defendant, 

which Mosley watched from "about 25 feet away." There are no facts in Mosley's 

narrative that suggest he was in a location where he could not be seen by the 

defendant−or for that matter by the other witnesses who were interviewed by police and 

who testified at the defendant's trial−before, during, or after the defendant's first 

encounter with Garrett, or during the early stages of the defendant's second encounter 

with Garrett. Moreover, there are no facts that suggest that even when Mosley "took 

cover and continued to watch" the escalation of the second encounter, he was in a 

location where he could not be seen by the defendant. Because Mosley's affidavit, even 

when taken as true and liberally construed in favor of the defendant, contains no 

statements of fact that would support the contention that the failure to discover Mosley as 

a witness prior to the defendant's previous trial was not due to a lack of due diligence on 

the part of the defendant−and therefore because it does not support the contention that its 

contents constitute newly discovered evidence that warrants an evidentiary hearing−the 

defendant's argument that the petition should have advanced to an evidentiary hearing 

because the petition "made a substantial showing that [the defendant] was actually 
17 

innocent based on Jeff Mosley's affidavit" necessarily fails. 

¶ 29 Nevertheless, in the interests of justice, we will consider if any other evidence was 

presented to the trial court that would demonstrate that the defendant had met his burden 

of demonstrating due diligence so that Mosley's affidavit could be construed as newly 

discovered evidence that would constitute a substantial showing of actual innocence 

sufficient to warrant an evidentiary hearing. The defendant, in his sworn verification of 

the petition, swore only that "the facts in this petition are true and correct in substance 

and in fact." However, the petition itself, although filed by counsel, contains no facts 

regarding the defendant's knowledge or lack of knowledge of Mosley's purported 

witnessing of the shooting, and contains no other facts related to due diligence on the part 

of the defendant to discover Mosley. It does not allege, for example, that the defendant 

did not see Mosley at the scene of the crime, or that for some reason he could not have 

seen Mosley at the scene of the crime, despite Mosley's averments as to his location as 

the events unfolded; it does not allege that the defendant did not in fact know that Mosley

was at the scene of the crime; it does not allege that none of the other witnesses who were 

interviewed by police failed to tell the police that Mosley was also at the scene of the 

crime, and that therefore he could not have learned of Mosley's existence from those 

witnesses or the police; it does not allege that the defendant did not learn of Mosley's 

alleged witnessing of the shooting until Mosley came forward with his affidavit. 

¶ 30 This is not to imply that all of the foregoing would be necessary to make a

substantial showing that the defendant's failure to discover Mosley prior to the 

defendant's previous trial was not due to a lack of due diligence on the defendant's part. 
18 

The problem is that neither the petition nor its verification contains any facts that would, 

if taken as true, validate the proposition that the defendant exercised due diligence in this 

case with regard to discovering Mosley. On the basis of the record before us, we 

conclude that this is not a case wherein well-pleaded facts, taken as true, merit the 

proving ground of an evidentiary hearing; to the contrary, this is a case in which there are 

no facts alleged that, even if true, would entitle the defendant to the relief he seeks. 

Clearly, even the most liberal construction of an affidavit, petition, or sworn verification 

cannot create from whole cloth facts that in no way exist therein. Accordingly, we hold 

that the defendant has not met his burden of demonstrating that Mosley's affidavit is 

newly discovered evidence that could not have been discovered earlier through due 

diligence on the part of the defendant; therefore, the defendant did not make a substantial 

showing of actual innocence sufficient to warrant an evidentiary hearing in this case. 

¶ 31 A third, and again independent, reason that we affirm the ruling of the trial court is 

that to the extent it could potentially reduce the defendant's liability from first-degree 

murder to second-degree murder, the defendant's proffered evidence does not 

demonstrate his actual innocence. At oral argument, we asked the parties to thereafter 

provide supplemental argument and support therefor with regard to the question of 

whether an actual innocence claim can encompass a situation in which the newly 

discovered evidence might make the defendant guilty of a lesser offense, but not make 

the defendant guilty of no crime at all. We have now received the supplemental materials 

of the parties. The defendant reiterates that it is his position that on retrial, the newly 

discovered evidence could lead to his complete acquittal, on the basis of self-defense, or 
19 

to his conviction for the lesser offense of second-degree murder. The defendant posits 

that with regard to the latter situation, the relevant inquiry is whether a conviction for a 

lesser offense is a "different outcome" than that of the first trial, and proposes to us that it 

is. However, we conclude that the relevant inquiry with regard to the latter situation is 

found within People v. Barnslater, 373 Ill. App. 3d 512 (2007). 

¶ 32 Like the present case, Barnslater involves the dismissal of a defendant's petition 

for postconviction relief at the second stage of proceedings. Id. at 513. In Barnslater, 

our colleagues in the First District discussed claims of actual innocence based on newly 

discovered evidence. They pointed out that previous decisions of the appellate court 

make it clear that "actual innocence" refers not to whether a defendant has been proven 

guilty beyond a reasonable doubt, but instead means "total vindication, or exoneration." 

(Internal quotation marks omitted.) Id. at 520. Accordingly, "actual innocence requires 

that a defendant be free of liability not only for the crime of conviction, but also of any 

related offenses." Id. at 521. 

¶ 33 After reviewing the materials submitted with the defendant's petition for 

postconviction relief, and construing those materials liberally in the defendant's favor, the 

Barnslater court held that because the purported newly discovered evidence in that case 

did not demonstrate that the defendant, "even if 'not guilty' of aggravated criminal sexual 

assault predicated on aggravated kidnaping, is 'actually innocent' of any crime against 

Y.B., including lesser included offenses of aggravated criminal sexual assault such as 

simple criminal sexual assault or criminal sexual abuse," the defendant was not entitled to 

postconviction relief. Id. at 526-27. In the case at bar, the defendant argues that 
20 

Mosley's testimony, if consistent with his affidavit, "would support the claim of selfdefense and would also assist the jury in resolving whether [the defendant] should be 

found guilty of second degree murder."

¶ 34 To the extent Mosley's proffered testimony could potentially reduce the 

defendant's liability from first-degree murder to second-degree murder, we conclude that

pursuant to Barnslater, even if it did so, it would not support a claim of actual innocence. 

See id. at 521 ("actual innocence requires that a defendant be free of liability not only for 

the crime of conviction, but also of any related offenses"). Accordingly, the defendant 

has not made a substantial showing of actual innocence on this basis. 

¶ 35 To the extent Mosley's proffered testimony could potentially lead to the 

defendant's complete acquittal, on the basis of self-defense, we conclude that even if we

assume, arguendo, that the testimony would under those circumstances be exonerating to 

the extent it could support a claim of actual innocence, that would not assist the defendant 

in overcoming the infirmities that justify us in affirming the trial court's ruling for the two 

other independent reasons discussed above. 

¶ 36 CONCLUSION 

¶ 37 For the foregoing reasons, we affirm the dismissal of the defendant's petition for 

postconviction relief. 

¶ 38 Affirmed.
 2015 IL App (5th) 130189 

 

 NO. 5-13-0189 

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

_____________________________________________________________________________________ 

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

 ) Circuit Court of

Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 05-CF-1784 

 ) 

GARY WINGATE, ) Honorable 

 ) Michael N. Cook, 

Defendant-Appellant. ) Judge, presiding.

_____________________________________________________________________________________ 

Rule 23 Order Filed: April 3, 2015 

Motion to Publish Granted: April 20, 2015 

Opinion Filed: April 20, 2015 

_____________________________________________________________________________________ 

Justices: Honorable James R. Moore, J.

 Honorable Judy L. Cates, P.J., and 

 Honorable Bruce D. Stewart, J.,

 Concur 

_____________________________________________________________________________________ 

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, 

for Dan W. Evers, Assistant Appellate Defender, Fifth Judicial District, 909

Appellant Water Tower Circle, Mt. Vernon, IL 62864 

_____________________________________________________________________________________ 

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square,

for Belleville, IL 62220; Patrick Delfino, Director, Stephen E. Norris, Deputy 

Appellee Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys

 Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 

 2, P.O. Box 2249, Mt. Vernon, IL 62864 

_____________________________________________________________________________________