THIRD DIVISION

									December 24, 2002

No. 1-01-2961

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

								)	Circuit Court of

			Plaintiff-Appellee,	 	)	Cook County.

								)	

	v.							)	

								)

JABARI BROWN,						)	Honorable

								)	Clayton Jay Crane

								)		and 

								)	Michael B. Bolan,

			Defendant-Appellant.	)	Judges Presiding.

	PRESIDING JUSTICE SOUTH delivered the opinion of the court:

	This appeal arises from a dismissal of a petition for post-

conviction relief.  

	Subsequent to a bench trial, petitioner, Jabari Brown, was

convicted of one count of first degree murder involving a drive-

by shooting and sentenced to 45 years in the Illinois Department

Corrections.  The conviction and sentence were affirmed by this

court in an unpublished order on April 20, 2000.  People v. Brown, No. 1-98-4501 (2000) (unpublished order under Supreme Court Rule 23).  Petitioner then filed a petition for leave to

appeal to the Illinois Supreme Court, which was denied on October

4, 2000. 

	On April 4, 2002, petitioner, pro se, filed a petition for post-conviction relief pursuant to section 122-1 of the Post-

Conviction Act (Act) (725 ILCS 5/122-1 et seq. (West 2000), a motion to sue or defend as a poor person and a motion for appointment of counsel. 

	The petition for post-conviction relief alleged:

		"(A) Counsel was ineffective for their failure to

object to prior consistent statements elicited by the

prosecution;

				(B) Counsel was ineffective for their failure to object 

to gang-related evidence;

		(C) Counsel was ineffective for their failure to

object to evidence of threats;

		(D) Counsel was ineffective for their failure to

call several defense witnesses;

		(E) Counsel was ineffective for their failure to

perfect impeachment;

		(F) Counsel was ineffective for not allowing the	   

petitioner to testify; and

		(G) Counsel was ineffective for their failure to

object to prior consistent identification."

	Additionally, the petition alleged that petitioner was

denied a fair trial due to the admission of hearsay testimony,

the knowing use of perjured testimony, the introduction of

"improper and irrelevant" evidence and a denial of the sixth

amendment right to the effective assistance of counsel on direct

appeal.

     The petition requested that petitioner be permitted to file

his "Memorandum of Law and Finding of Facts" in support of his claims by no later than April 14, 2001.  Attached to the petition was petitioner's affidavit wherein he acknowledged that the

deadline for filing the petition was April 4, 2001, and that a

paralegal by the name of Frederick Lambert was working on his

"Memorandum of Law and Finding of Facts" and hoped to be finished

with it on or before April 14, 2001.  Also attached to the

petition was Lambert's affidavit stating that he was assisting

petitioner in the preparation of the petition but that, due to

his crowded calendar, he was unable to prepare a "Memorandum of

Law and Finding of Facts" and would file one by no later than

April 14, 2001.  In other words, the petition was filed for the

purpose of meeting the statute of limitations deadline and to

preserve petitioner's rights under the Act.

	On April 27, 2001, petitioner filed an "Amended Post

Conviction Petition/Memorandum of Law and Findings of Facts/

Affidavits."  Attached to the petition was his affidavit

acknowledging that he had filed a post-conviction petition on

March 26, 2001, and that the deadline for filing was April 4,

2001.

	PeitionerPetitioner further stated:

			"That after filing the first Petition

and after further research it has come to the

Petitioner's attention that certain issue's

[sic] presented in the initial Post

Conviction is [sic] without merits [sic] and the Petitioner would not want to waist [sic]

this Honorable Courts [sic] precious time on

frivilous [sic] claims.

			Likewise, the Petitioner has discovered

additional issue's [sic] cognizable under the

Post Conviction [Hearing] Act and to properly

present all of the claims Petitioner feel

[sic] that it would be best to Amend the

entire Post Conviction."							

	The amended petition raised a laundry list of allegations

regarding ineffective assistance of counsel, which included trial 

counsel's failure to call alibi witnesses; his not allowing

petitioner to testify at trial; his failure to call a "crucial"

defense witness; his failure to object to gang-related evidence;

the State's introduction into evidence of prior consistent

statements and hearsay testimony; the State's introduction of

"statements of nonidentification"; the State's introduction into

evidence of alleged threats "not connected to Petitioner"; the

State's elicitation of evidence "insinuating prior offenses by

the petitioner"; and the unconstitutionality of Public Act 83-942

(Pub. Act 83-942, eff. November 23, 1983), in that it violates

the single subject rule of the Illinois Constitution.  The

petition also alleged that petitioner was denied effective

assistance of his appellate counsel on direct appeal, a claim

that was raised in the original petition.

	The amended petition further alleged that petitioner had an

alibi and that there were three witnesses who were prepared to

testify that, on the date of the offense, which occurred in

Chicago, he was with these individuals at a family Labor Day

picnic in Decatur, Illinois; also, that petitioner provided his

attorney with a list of these people who would testify that he

was in Decatur attending this picnic, but that trial counsel told

him that he would not call any of these alibi witnesses because

the judge would not believe them since they were family members

and friends.  

	Attached to the amended petition were four affidavits.  The

affidavits of April Hendricks and Tamara Evans attested to the

fact that petitioner could not have committed the crime of which

he had been convicted because he was with them at a family Labor

Day picnic in Decatur, Illinois, on the date in question. 

Petitioner's affidavit stated that he informed his trial counsel

during their first interview that he was in Decatur at a family

picnic on the date of the murder and provided him with the names

of his alibi witnesses, but that his lawyer told him that the

judge would not believe these witnesses because they were family

members and friends.  Additionally, petitioner's affidavit stated

that he informed his lawyer during the trial of his desire to

testify, but that counsel told him that he did not know whether

his testimony would be needed and he would call him to testify

"if need be."   However, trial counsel, according to the affidavit, never called petitioner to testify.  Petitioner also

stated that he asked his attorney to interview the owner of the

vehicle that was involved in the drive-by shooting, but his

lawyer refused and told him "to trust his skills and let him

decide whats [sic] best."

	The fourth affidavit was that of Thado Stewart, who attested

that, on the date of the incident, he was the owner of a Gold

Lexus and never loaned it to petitioner or his son or any of his

friends and that, therefore, it was not possible that his car was

involved in the drive-by shooting on Labor Day.  

	In a written order the trial court dismissed the petition,

stating that it was frivolous and patently without merit.  The

court addressed each of petitioner's allegations in the original

petition but made no reference or mention of the allegations

contained in the amended petition.  

	The following issues have been raised for our review:

(1) whether the trial court erred in either failing to consider

the allegations of the amended petition for post-conviction

relief or in denying petitioner's request to amend the petition;

and (2) whether the trial court erred in summarily denying the

petition for post-conviction relief regarding the allegations of

ineffective assistance of counsel wherein petitioner argued that

his trial counsel refused to let him testify and to investigate

and call the three available alibi witnesses and the owner of the

vehicle used in the drive-by shooting.

	The Post-Conviction Hearing Act provides a mechanism 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 et seq. (West 2000); People v. Rivera, 198 Ill. 2d 364 (2001). Proceedings under the Act are commenced by the filing of a petition in the circuit

court in which the original proceeding took place.  The petition

must clearly set forth the respects in which the petitioner's

rights were violated.  People v. Coleman, 183 Ill. 2d 366, 379, 701 N.E.2d 1063 (1998).  Section 122-2 of the Act requires that

affidavits, records or other evidence supporting the petitioner's

allegations be attached to the petition.  725 ILCS 5/122-2 (West

2000).

	Under the Act, a post-conviction proceeding not involving

the death penalty consists of three stages.  People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442-44 (2001), citing People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996).  At the first stage, the circuit court must independently review the

post-conviction petition within 90 days of its filing and

determine whether the petition is frivolous or patently without

merit.  725 ILCS 5/122-2.1(a)(2) (West 2000).  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 2000).  A post-conviction petition is considered frivolous or patently without merit only

if the allegations in the petition, taken as true and liberally

construed, fail to present the "gist of a constitutional claim." 

Gaultney, 174 Ill. 2d at 418, citing People v. Porter, 122 Ill. 2d 64, 74, 521 N.E.2d 1158 (1988).  The "gist" standard is a "low

threshold."  Gaultney, 174 Ill. 2d at 418.  To set forth the "gist" of a constitutional claim, the post-conviction petition

need only present a limited amount of detail, and need not set

forth the claim in its entirety.  Further, the petition need not

include legal arguments or citations to legal authority. 

Gaultney, 174 Ill. 2d at 418; Edwards, 197 Ill. 2d at 244. At the first stage, the trial court does not rule on the merits of the

petition; rather, the trial court simply decides if the petition

on its face is frivolous or patently without merit.  People v. Oury, 259 Ill. App. 3d 663, 667 (1994). 

	The Act provides for a court, in its discretion, to allow

amendment of petitions "as shall be appropriate, just and

reasonable and as is generally provided in civil cases."  725

ILCS 5/122-5 (West 2000).  Generally, when a party asks to amend

a complaint, leave to do so is freely given.  A circuit court

abuses its discretion if it refuses to allow a plaintiff to amend

his complaint when a cause of action can be stated if the

complaint is amended.  People v. Scullark, 325 Ill. App. 3d 876, 880 (2001), citing Droen v. Wechsler, 271 Ill. App. 3d 332, 335, 648 N.E.2d 981, 984 (1995).  The trial court should exercise its discretion liberally in favor of allowing amendments if allowing

an amendment will further the ends of justice; the most important

question is whether amendment will be in furtherance of justice,

and amendment of defective pleadings should be permitted unless

it is clear that the defect cannot be cured thereby.  Any doubts

should be resolved in favor of allowing amendments.  Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1095, 520 N.E.2d 9, 11 (1993).  The general rule is that the allowance of material amendments

after the evidence has been closed rests largely in the

discretion of the trial court and its ruling will not be

disturbed on review except in cases of clear abuse.  Lawson v. Hill, 77 Ill. App. 3d 835 (1979).	

	Our review of the circuit court's summary dismissal of

defendant's post-conviction petition is de novo.  Due to the elimination of all factual issues at the dismissal stage of a

post-conviction proceeding, the question is, essentially, a legal

one, which requires the reviewing court to make its own

independent assessment of the allegations.  Thus, a court of

review is free to substitute its own judgment for that of the

circuit court in order to formulate the legally correct answer. 

Edwards, 197 Ill. 2d at 247, quoting People v. Coleman, 183 Ill. 2d 366, 388 (1998).

	The record is clear that petitioner never sought leave of

the court to amend his petition.  While he did, in fact, file the

amended petition, no formal motion was presented requesting leave to file the amended petition.  A movant has the responsibility to

obtain a ruling from the court on his motion in order to avoid

waiver on appeal.  People v. Schmitt, 131 Ill. 2d 128, 137 (1989).  	

	As to the original petition, it is uncontested that it was

not supported by accompanying affidavits.  A petition filed under

the Act shall have attached "affidavits, records, or other

evidence" as required by section 122-2 supporting its allegations

or "shall state why the same are not attached."  725 ILCS 5/122-2

(West 1998).  The petition did state that it was being filed in

order to meet the deadline under the Act.  Implicit in this

statement was petitioner's tacit acknowledgment that the

petition, which was being filed pro se, was insufficient as a matter of law and presumably would be amended on a future date in

order to comply with the mandates of the Act. Also attached was

the affidavit of a paralegal who assured the court that he was

assisting petitioner in the preparation of the document and that

the amended petition would be filed within the next two weeks.

When the amended petition was filed, it was supported by the

requisite affidavits. 

	The State concedes that it would appear from the record that

the court only addressed the allegations contained in the

original post-conviction petition but argues that the trial court

either implicitly denied petitioner's request to amend or never

addressed the amended petition because no formal motion was presented.  

	In examining the court's order, it appears that it only

addressed the original petition and not the amended petition.  

In his order dismissing the petition, the court stated that

"petitioner failed to submit any affidavits from the witnesses." 

Clearly, that was a direct reference to the original petition,

which lacked accompanying affidavits, and not the amended

petition, which was accompanied by affidavits. 

	Petitioner claimed in both the original petition and the

amended petition that his trial counsel was ineffective for

failing to call alibi witnesses of whom he was aware.  To

establish a claim for ineffective assistance of counsel,

defendant must show that counsel's representation fell below an

objective standard of reasonableness so as to deny him the right

to counsel guaranteed under the sixth amendment.  Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In assessing such a claim, the court must give deference

to counsel's conduct within the context of trial and without the

benefit of hindsight.   Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.  As such, a defendant must overcome

the strong presumption that the challenged action or inaction of

counsel was the product of sound trial strategy and not

incompetence.  People v. Coleman, 183 Ill. 2d 366, 397 (1998).  

	It is well settled that strategic choices made by defense

counsel after a thorough investigation of the law and facts relevant to the plausible options are virtually unchallengeable. 

People v. King, 316 Ill. App. 3d 901 (2000); People v. Towns, 182 Ill. 2d 491, 514 (1998); People v. Mitchell, 189 Ill. 2d 312, 347 (2000).  It is equally settled that trial counsel's decision

whether to present a particular witness is within the realm of

strategic choices that are generally not subject to attack on the

grounds of ineffectiveness of counsel.  People v. Tate, 305 Ill. App. 3d 607, 612 (1999).  However, along with these general

rules, our case law holds that counsel's tactical decisions may

be deemed ineffective when they result in counsel's failure to

present exculpatory evidence of which he is aware, including the

failure to call witnesses whose testimony would support an

otherwise uncorroborated defense.  King, 316 Ill. App. 3d at 913.

	 In the amended petition the names of the two alibi

witnesses, April Hendricks and Tamara Evans, were listed along

with their statements that petitioner was with them at a family

Labor Day picnic from September 1, 1995, through September 3,

1995, in Decatur, Illinois.

	Specifically, April Hendricks stated in her affidavit that

on September 1, 1995, she and petitioner, along with other

individuals, were at a Labor Day picnic in Decatur, Illinois, and

returned to Chicago on September 3, 1995.  When she heard that

petitioner had been charged with a murder that occurred on

September 2, 1995, she contacted his attorney and informed him

that petitioner could not have committed the murder because he was with her, and the attorney told her that he would send

someone out to talk to her before the trial. However, no one ever

contacted her, and she was never called to testify.

	Tamara Evans stated in her affidavit that she, petitioner

and petitioner's brother drove down to Decatur, Illinois, on

September 1, 1995, and returned on September 3, 1995.  She

attended one of petitioner's court hearings and spoke with his

attorney and informed him that petitioner was with her in Decatur

from September 1 to September 3 in Decatur, Illinois, and that, therefore, he could not have committed the offense.  According to

her affidavit, the attorney told her that he was "pretty sure

that the charges against Jabari was [sic] going to be dropped and

*** to be patient until the case began."  Ms. Evans further

attested that the attorney wrote down her phone number and

address and told her that if he needed her, he would give her a

call; however, she never heard from him, and she never contacted

him because she believed that he knew "what was best."

	Additionally, in petitioner's affidavit he stated that he

informed his attorney that he wanted to testify, to which his

lawyer responded that he did not know at that point whether his

testimony would be needed or not.  Petitioner, however, never

testified at his trial.

	Ultimately, the decision whether to testify belongs to the

defendant.  People v. Enis, 194 Ill. 2d 361, 399 (2000).  It is generally recognized that a defendant's prerogative to testify is a fundamental right, which only the defendant may waive; whether

to exercise that right is not one of those matters that is

considered a strategic or tactical decision best left to trial

counsel.  Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312 (1983).  

	In People v. Dredge, 148 Ill. App. 3d 911, 500 N.E.2d 445 (1986), the court observed that it is recognized that a criminal

defendant's prerogative to testify at his or her trial is a

fundamental right which only the defendant can waive.   In

Dredge, while the exact working of the petition is not set forth, the court stated that defendant alleged that his trial counsel

was ineffective because, inter alia, he "did not allow her to testify on her own behalf."  148 Ill. App. 3d at 912.  The Dredge court further observed:

			"In determining the particularity with

which a pro se petitioner for post-conviction relief must state alleged deprivations of

constitutional rights in her petition, we

note that such petitioners are often persons

of limited education. [Citations.] Therefore,

we conclude that in order to withstand

dismissal at the first stage of post-

conviction proceedings, a petition for post-

conviction relief need only contain a simple

statement which presents the gist of a claim for relief ***. Requiring pro se petitioners to state their claims in greater detail than

this would have the practical effect of

depriving many such persons of their right of

meaningful access to the courts. [Citation.]"

Dredge, 148 Ill. App.3d at 913.

	Acknowledging that the defendant's allegation of deprivation

of the right to testify was conclusory and unsworn, the Dredge court observed that the petition was verified and held that that

fact, coupled with the fact that defendant's allegation that she

was deprived of her right to testify at her trial, is

uncontradicted by anything appearing in the trial record, is

sufficient to require the circuit court to appoint counsel to

represent defendant (and to proceed in accord with the Act.)"

Dredge, 148 Ill. App.3d at 913.

	Similarly, in the case at bar, petitioner's affidavit was

verified, and that verification coupled with his allegation that

he informed his attorney he wanted to testify but was never

allowed to is uncontradicted by anything appearing in the trial

record.  Those facts are sufficient to require the circuit court

to appoint counsel to represent petitioner and to proceed in

accord with the Act.

	In light of the exculpatory nature of the statements in

Evans' and Hendricks' affidavits and defense counsel's failure to

call them as witnesses, as well as the allegation that petitioner informed his attorney that he wanted to testify but was prevented

from doing so, the amended petition, which was properly supported

by affidavits, sufficiently raised the gist of a constitutional

claim. We can think of no strategic reason why defense counsel

would refuse to present this exculpatory evidence of which he was

aware, or prevent petitioner from testifying in his own defense, 

especially in light of the fact that this case was one of an

uncorroborated defense.  The trial court made no allusion to this

exculpatory evidence  because the record is clear that it was

only considering the original petition, which was not accompanied

by supporting affidavits, and not the amended petition.   

	Given the rather unique circumstances of this case, we find

that petitioner sufficiently preserved his rights under the Act

when he filed the original petition with an explanation that he

was doing so in order to meet the deadline and that an amended

petition, which presumably was going to sufficiently raise the

gist of a constitutional claim, would be forthcoming.  Whether

the court implicitly denied the amended petition or simply

refused to address it, as the State argues on appeal, we are

unable to determine from the record.  Nonetheless, if the court,

in fact, implicitly denied petitioner's request to amend or

simply refused to address it, such denial or refusal was an abuse

of its discretion, particularly in light of the fact that the

amended petition raised the gist of a constitutional claim.

	In dismissing the petition as being frivolous and patently without merit, the trial court stated that the two eyewitnesses

at trial positively identified petitioner as the shooter. The

implication of that statement is that the State had a very strong

and solid case, so the testimony of petitioner or his alibi

witnesses would not have changed the outcome.  However, the

strength of the State's case at trial does not foreclose the

question of whether there has been a substantial deprivation of a

constitutional right.  It would be manifestly unfair to deny

petitioner the opportunity to proceed further on his petition

with respect to the claims that he was foreclosed by his attorney

from presenting a defense through his alibi witnesses.  

	We agree with the trial court's assessment that the

petitioner's remaining claims, such as the evidentiary violation,

are not cognizable under the Act.  The petition contains multiple

allegations - some of which are frivolous or patently without

merit and some of which are not. However, the  court does not

have the authority under the Act to dismiss summarily the

frivolous-or-patently-without-merit allegations and send whatever

allegations remain to the second stage.  People v. Rivera, 198 Ill. 2d 364 (2001).  

	In Rivera, defendant filed a pro se petition for post- conviction relief alleging several allegations.  The circuit

court dismissed two of the claims as frivolous or patently

without merit and found that the other two claims stated the gist

of a meritorious claim and appointed an attorney to represent defendant.  Our supreme court in Rivera held:

		"Clearly, the Act does not speak in terms of

dismissing individual claims that are either

frivolous or patently without merit; the

statute speaks solely in terms of the

petition itself being frivolous or patently

without merit, and the Act mandates that if

the petition is not dismissed under section

122-2.1, then the trial court shall order the

petition docketed. *** Under the plain

language of the Act, in cases such as this,

the circuit court must docket the entire

petition, appoint counsel, if the petitioner

is so entitled, and continue the matter for

further proceedings ***."  (Emphasis

omitted.)  198 Ill. 2d at 371.

	Upon remand, the circuit court is instructed to allow

petitioner to file his amended petition and order it docketed 

for further consideration in accordance with sections 122-4

through 122-6 of the Act.  725 ILCS 5/122-2.l(a)(b) (West 2000).

	With respect to the issue regarding the constitutionality of

Public Act 83-942, People v. Boclair, 202 Ill. 2d 89 (2002), has resolved that issue and held that the Act does not violate the

single subject rule.	

	Based upon the foregoing analysis, the judgment of the circuit court is reversed and remanded for proceedings consistent

with this opinion.

	Reversed and remanded with directions.

	HOFFMAN and WOLFSON, JJ., concur.