2024 IL App (2d) 230336-U 

No. 2-23-0336 

Order filed May 14, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Lake County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 19-CF-1915 

) 

KYAI GIBSON, ) Honorable 

) D. Christopher Lombardo, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court.

Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶ 1 Held: We agree with appellate counsel that there is no potentially meritorious basis for 

appeal. Therefore, we grant counsel's motion to withdraw, and we affirm the trial 

court. 

¶ 2 Defendant, Kyai Gibson, appeals from the summary dismissal of his pro se petition under 

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) for relief from his 

conviction of violating an order of protection (720 ILCS 5/12-3.4(a)(2) (West 2016)). The Office 

of the State Appellate Defender (OSAD), appointed to represent him on appeal, has moved to 
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withdraw. For the reasons below, we grant the motion and affirm the summary dismissal of 

defendant’s petition. 

¶ 3 I. BACKGROUND

¶ 4 Defendant was found guilty after a jury trial. Evidence presented at trial established that 

on August 31, 2017, defendant’s wife, Yashira Gonzalez, obtained a plenary order of protection, 

which would expire on August 31, 2019. The order of protection, which was served on defendant 

by a Lake County deputy sheriff on September 1, 2017, required defendant to stay at least 500 feet 

from Gonzalez and her child and to refrain from having contact with them in any way, including 

telephone, e-mail, or text. On August 26, 2019, defendant texted Gonzalez, asking whether he 

could walk her child to school. Gonzalez saw the texts while driving her child to school and denied 

defendant’s request. When Gonzalez arrived at her child’s school, defendant’s car was there. She 

told him to leave and said she was calling the police. Defendant then left. Zion police officer 

Leticia Thornton testified for the defense that on August 26, 2019, she was dispatched to locate 

defendant. Thornton spoke with defendant, who told her he thought the order of protection had 

expired on August 10, 2019.

¶ 5 Defendant appealed from his conviction. He argued, inter alia, that (1) the State failed to 

prove beyond a reasonable doubt that he was aware the order of protection was still in force on 

August 26, 2019, and (2) remarks by the State during closing argument deprived him of a fair trial. 

People v. Gibson, 2021 IL App (2d) 200355-U, ¶ 2 (Gibson I). Defendant argued that the State’s 

remarks were, among other things, in violation of the trial court’s pretrial ruling that barred the 

State from mentioning that, at the time of the incident, defendant’s probation for a prior offense 

prohibited him from having any contact with Gonzalez. Id. ¶¶ 9, 30. We rejected defendant’s 

contentions and affirmed his conviction. Id. ¶ 2. 
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¶ 6 On August 2, 2023, defendant filed a petition for relief under the Act, alleging, in pertinent 

part, that he “was notified by the *** [c]ircuit [c]lerk prior to [his] [a]rrest, that there was no valid 

order of protection in the system.” He further alleged that (1) “[d]uring closing arguments, the 

[p]rosecutor [d]isclosed information to the [j]ury[ ] that prejudiced the [d]efendant and ultimately 

deprived him of a [f]air [t]rial” and (2) “the words of the [p]rosecutor[ ] were [f]orbidden by the 

[j]udge before the [t]rial, specifically so that the [d]efendant would recieve [sic] [a] [f]air [t]rial.” 

Defendant did not specify the allegedly improper comment by the prosecutor. On August 25, 

2023, the trial court entered a written order summarily dismissing the petition. See 725 ILCS 

5/122-2.1(a)(2) (West 2022). Defendant filed a notice of appeal, and OSAD was appointed to 

represent him.

¶ 7 II. ANALYSIS

¶ 8 Counsel moves to withdraw per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People 

v. Lee, 251 Ill. App. 3d 63 (1993). In his motion, counsel states that he read the record and found 

no issue of arguable merit. Counsel further states that he advised defendant of his opinion. 

Counsel supports his motion with a memorandum of law providing a statement of facts, a list of 

potential issues, and arguments as to why those issues lack arguable merit. We advised defendant 

that he had 30 days to respond to the motion. Defendant did not respond.

¶ 9 Counsel suggests two potential issues: (1) whether the trial court followed the proper 

procedure in summarily dismissing defendant’s petition and (2) whether the trial court erred on 

the merits in summarily dismissing the petition. Counsel concludes that neither issue is arguably 

meritorious. We agree.

¶ 10 The Act provides a mechanism for a criminal defendant to obtain relief from a conviction 

that resulted from a substantial denial of his or her constitutional rights. 725 ILCS 5/122-1(a)(1) 
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(West 2022). Within 90 days after the petition is filed and docketed, the trial court reviews the 

petition without input from the State (People v. Gaultney, 174 Ill. 2d 410, 418 (1996)) and enters 

a written order summarily dismissing the petition if it is frivolous or patently without merit. See 

725 ILCS 5/122-2.1(a)(2) (West 2022). The written order shall include the trial court’s findings 

of fact and conclusions of law. Id. Here, the trial court adhered to these requirements. 

Accordingly, there is no arguably meritorious basis for a procedural challenge to the summary 

dismissal of defendant’s petition.

¶ 11 We likewise agree with counsel that there is no arguably meritorious basis for challenging 

the trial court’s determination that the petition was subject to summary dismissal. We first address 

defendant’s claim that the State made improper comments during closing argument. As noted, 

summary dismissal is proper when a petition is frivolous or patently without merit. See id. “[T]he 

phrase ‘frivolous or patently without merit’ encompasses the common-law doctrines of 

res judicata and forfeiture such that claims that were, or could have been, raised and adjudicated 

[on direct appeal] are barred and are subject to summary dismissal at the first stage.” People v. 

Kane, 2013 IL App (2d) 110594, ¶ 26. Defendant’s claim that the State disclosed forbidden 

information (which defendant does not specify) to the jury is reminiscent of his argument on direct 

appeal that the State told the jury, in violation of a pretrial ruling, that defendant was on probation 

at the time of the incident. Gibson I, 2021 IL App (2d) 200355-U, ¶¶ 9, 30. We rejected this 

argument. Id. ¶ 30. Moreover, even if defendant intended in his petition to challenge a different 

remark by the State, such a claim would also be barred because it could have been raised on direct 

appeal along with defendant’s other challenges to the State’s remarks. See Kane, 2013 IL App 

(2d) 110594, ¶ 26. Therefore, as counsel concludes, defendant’s claim of improper conduct by the
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State is barred under res judicata and so is devoid of merit. Accordingly, it would be frivolous to 

challenge the summary dismissal of this claim.

¶ 12 Counsel argues that the same reasoning applies to defendant’s claim that he was notified 

by the circuit clerk before his arrest that there was no valid order of protection in the system. 

Although defendant challenged on direct appeal the sufficiency of the evidence to establish that 

he was aware that there was a valid order of protection in effect, it does not appear that the 

challenge was based on information allegedly received from the circuit clerk. See Gibson I, 2021 

IL App (2d) 200355-U, ¶¶ 20-23. Arguably, defendant’s postconviction claim could be 

characterized not as a challenge to the sufficiency of the evidence (which, apart from 

considerations of res judicata, simply is not cognizable in a postconviction proceeding (see People 

v. Dixon, 2022 IL App (1st) 200162, ¶ 45)), but as an “actual innocence” claim.

¶ 13 However, summary dismissal was proper even if the claim is characterized as an actual 

innocence claim. A claim of actual innocence must be supported by evidence that is newly 

discovered, material, noncumulative, and “ ‘of such conclusive character that it would probably 

change the result on retrial.’ ” People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (quoting People v. 

Morgan, 212 Ill. 2d 148, 154 (2004)). We fail to see how defendant’s allegation that he was told 

by the circuit clerk before his arrest that no valid order of protection was in effect could possibly 

be considered newly discovered evidence. Thus, from the standpoint of an “actual innocence” 

theory, defendant’s claim is frivolous and patently without merit, and there is no arguably 

meritorious basis for an appeal from the summary dismissal of that claim.

¶ 14 After examining the record, the motion to withdraw, and the memorandum of law, we agree 

with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to 

withdraw, and we affirm the judgment of the circuit court of Lake County. 
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¶ 15 III. CONCLUSION

¶ 16 For the reasons stated, we affirm the judgment of the circuit court of Lake County. 

¶ 17 Affirmed.