2024 IL App (1st) 220674-U 

No. 1-22-0674 

Order filed June 13, 2024 

Fourth Division 

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 DISTRICT

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

 ) of Cook County. 

Plaintiff-Appellee, ) 

 ) 

vs. ) No. 19 CR 6473 

 ) 

THOMAS LINDSEY, ) Honorable 

 ) Vincent M. Gaughan, 

Defendant-Appellant. ) Judge, presiding. 

 

JUSTICE MARTIN delivered the judgment of the court. 

Justices Hoffman and Ocasio concurred in the judgment. 

ORDER

¶ 1 Held: The circuit court’s third-stage dismissal of Lindsey’s postconviction petition is 

affirmed where Lindsey failed to make a substantial showing that his constitutional 

right to effective assistance of counsel was violated. 

¶ 2 Defendant Thomas Lindsey appeals the third-stage dismissal of his petition filed pursuant 

to the Postconviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, 

Lindsey contends the circuit court erred in dismissing his petition where he made a substantial 
No. 1-22-0674 

- 2 - 

showing that his constitutional right to effective assistance of counsel was violated when his trial 

counsel failed to call his brother, Alonzo Lindsey1, to testify at trial. 

¶ 3 For the following reasons, we affirm the circuit court’s third-stage dismissal of Lindsey’s 

postconviction petition.

2 

¶ 4 I. BACKGROUND

¶ 5 We discuss only the facts necessary for our disposition of the issues in this appeal. For a 

more thorough discussion of the facts as they relate to pretrial matters, see Lindsey’s direct appeal. 

People v. Lindsey, 2021 IL App (1st) 192208-U. 

¶ 6 Lindsey was charged by indictment with multiple offenses following an April 23, 2019 

traffic stop. Lindsey filed a motion to suppress evidence, arguing that the officers lacked probable 

cause to believe his vehicle contained contraband, where the items seized were not in plain view 

and he did not consent to the search. The court held a hearing on the motion simultaneously with 

Lindsey’s bench trial. 

¶ 7 Police officers Nicholas Ardolino and Matthew Marano testified they pulled Lindsey’s 

vehicle over after observing him driving while using a cellular telephone. After smelling cannabis 

odor, the officers requested Lindsey exit the vehicle, but he refused. After calling family members 

and friends to the scene, Lindsey eventually exited the car, throwing the car keys to a bystander. 

Following a search, police officers recovered a semiautomatic handgun with an extended 

magazine, cannabis, and a “white-like substance” from the glove compartment of the car.

¶ 8 The State entered certified copies of Lindsey’s prior convictions for robbery and unlawful

use or possession of a weapon by a felon into evidence, and the defense entered stipulations that 

1To avoid confusion, we will refer to Alonzo Lindsey as “Alonzo.”

2In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 

appeal has been resolved without oral argument upon the entry of a separate written order.
No. 1-22-0674 

- 3 - 

ridge impressions on the magazine of the firearm “was not identified” to a copy of defendant’s 

fingerprint palm card standard.

¶ 9 The trial court denied Lindsey’s suppression motion and found him guilty of being an 

armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2018). On direct appeal, we affirmed 

Lindsey’s conviction, finding that the trial court did not err in denying his motion where the 

totality of the circumstances would justify a reasonable person to believe the vehicle contained 

evidence of criminal activity. Lindsey, 2021 IL App (1st) 192208-U. 

¶ 10 On January 19, 2021, Lindsey, through counsel, filed an initial postconviction petition 

pursuant to the Act. 725 ILCS 5/122-1 et seq (West 2020). Lindsey alleged that he received 

ineffective assistance of counsel when his trial attorney failed to call his brother Alonzo, who 

would testify that he owned the firearm that was found in the glove box of the car. Lindsey 

attached an affidavit from Alonzo, wherein he averred: (1) he was present in court during 

Lindsey’s August 2019 trial, (2) he spoke to Lindsey’s trial attorney prior to trial and informed 

him that he is the owner of the weapon Lindsey was found with, (3) he informed Lindsey’s 

attorney that he had a valid firearm owner’s identification (FOID) card and that the weapon was 

registered to him, (4) he was in possession of the purchase receipts which show he purchased the 

weapon, (5) he informed the attorney he had left the weapon in the locked glove compartment of 

the vehicle, (6) the vehicle was not registered to Lindsey and Lindsey did not regularly drive that 

vehicle, (7) he had never seen the weapon in his brother’s possession, (8) he never informed his 

brother that he had a weapon or kept said weapon in the vehicle, (9) he had no reason to believe 

Lindsey was aware the weapon was in the vehicle, and (10) he was willing and ready to testify at 

Lindsey’s trial.
No. 1-22-0674 

- 4 - 

¶ 11 The petition was advanced to the second stage in March 2021, and theState filed a response 

to the petition seven months later. On April 7, 2022, the court held a third stage hearing on 

Lindsey’s petition. Defense counsel proceeded to publish Alonzo’s affidavit to the court. Counsel 

did not present any further evidence. The State called attorney Josh Niewoehner to testify. 

Niewoehner has worked as a criminal attorney since he was licensed as an attorney in 2003. He 

has participated in criminal trials as lead counsel. In preparation for trial, Niewoehner investigates 

the purported testimony of any witnesses who might be called by the defense. Lindsey retained 

Niewoehner as his attorney in 2019. Prior to Lindsey’s trial, Niewoehner met with Alonzo twice 

at his office and once the morning of Lindsey’s trial. Niewoehner spoke with Alonzo about 

potentially testifying at his brother’s trial, prepared him to testify, and issued a subpoena for his 

presence. However, on the day of trial, Niewoehner did not call Alonzo to testify because he 

believed the State had failed to meet its burden of proving beyond a reasonable doubt that Lindsey 

knew the firearm was in the glove box the day he was arrested. 

¶ 12 When questioned whether there was anything about Alonzo’s potential testimony that 

played a role in Niewoehner’s decision to not call Alonzo as a witness, Niewoehner stated,

“One of the issues in the case was not only the presence of the gun in the glove box 

but also the presence of cannabis and suspect cocaine. [Lindsey] was not charged with the 

cannabis or suspect cocaine.

 One of the issues in the case was that [Lindsey], after he was stopped, did not get 

out of the car for several minutes and then threw the keys to the vehicle, which contained 

a key to the glove box, to family members on the scene. 

After preparing Alonzo Lindsey to testify, it would have been his testimony that 

when he placed the gun in the glove box, there were not drugs present. I thought that based 
No. 1-22-0674 

- 5 - 

on the State’s evidence, which came in through two police officers, the way that the 

evidence came in was good for the defense in that there may have been reasons such as the 

odor of cannabis or the presence of cannabis to show a reason why [Linsey] acted the way 

he did.

 Alonzo Lindsey’s testimony, while it would have helped in some regard to explain 

that he purchased the gun, he put the gun there, I did not necessarily think would help to 

that last matter in terms of why [Lindsey] threw the keys. In fact, it could have hurt *** if 

he were to testify that when he put the gun in the glove box, he did not see drugs.” 

¶ 13 On cross-examination, Niewoehner reviewed Alonzo’s affidavit and agreed that the 

affidavit appeared to be truthful, in that it reflected the information Alonzo had given Niewoehner 

prior to Lindsey’s trial. Niewoehner believed there was a significant chance that Alonzo would 

testify at Lindsey’s trial and prepared him thusly. He also agreed that he was given police reports 

containing alleged statements Lindsey made post arrest. Although the State did not reply to a 

motion Niewoehner filed to produce statements and confessions of the defendant, he assumed that 

the State would attempt to introduce Lindsey’s alleged statements at trial. Niewoehner made an 

objection to the State attempting to introduce said statements and the court sustained the objection. 

Consequently, the State was unable at trial to introduce the alleged oral statements contained in 

the police reports.3 This was one of the reasons why Niewoehner decided not to call Alonzo to 

testify. However, the main reason was because he believed the State had failed to meet their 

burden of proof at the conclusion of their case. Further, had Alonzo testified that there were no 

drugs present when he placed the gun in the glove box, then it would necessarily create the 

3There was much discussion between defense counsel and the court regarding the content of these 

alleged statements by Lindsey. The court repetitively insisted on hearing the content of the statements, so 

the court could know the totality of the circumstances. Counsel repeatedly answered that he was unaware 

of the contents of the statements and had no way to access such, so he would not elicit said content.
No. 1-22-0674 

- 6 - 

inference that Lindsey had placed the drugs there. Niewoehner conceded that Lindsey was not 

charged with drug possession. He did not object when the State elicited testimony regarding the 

drugs because it was a bench trial, and he thought the alleged odor of cannabis might help explain 

Lindsey’s behavior after the traffic stop. This was all part of Niewoehner’s trial strategy. 

¶ 14 In closing argument, defense counsel argued that Alonzo was an unimpeachable witness 

who should have been called, absent some articulable prejudice. Counsel claimed Niewoehner’s 

decision could not be classified as trial strategy because it was unsound to not call Alonzo to 

testify where no harm or prejudice could have resulted therefrom, as Alonzo would have testified 

that he had a FOID card, the firearm was his, and he locked the weapon in the glove compartment.

When discussing the drugs that were found during the arrest, defense counsel argued that 

Niewoehner should have filed a motion in limine to bar any mention of drugs, so it should not 

have been a concern regarding Alonzo’s potential testimony. 

¶ 15 The State argued that Niewoehner’s representation of Lindsey neither fell below an 

objective standard of reasonableness nor caused Lindsey any harm. Rather, Niewoehner’s choice 

not to call Alonzo was a reasonable, strategic decision because Alonzo would have been 

questioned regarding his expected testimony that there were no drugs present when he put the 

firearm in the glove box and locked it. Niewoehner’s concern regarding the negative inference 

that may have been raised, militating in favor of Lindsey’s guilt was both sound and reasonable. 

The State noted that there are a lot of facts Alonzo’s affidavit does not tell the court, leaving open 

issues such as how Lindsey came into possession of the vehicle, how long he had it, and when the 

firearm was placed in the glove box. The State further pointed to the speculative nature of some 

of Alonzo’s affidavit statements and argued that there was no evidence provided at the hearing 
No. 1-22-0674 

- 7 - 

that Alonzo was a credible witness or that his testimony would have made a difference at 

Lindsey’s trial.

¶ 16 Defense counsel countered that, if Niewoehner thought he was winning, there would be no 

harm in putting on a solid witness. Counsel argued that Niewoehner performed deficiently 

because there was no reason not to call Alonzo, and Lindsey was prejudiced because it was a close 

case and Alonzo’s testimony may have “tipped the scales” in favor of Lindsey. 

¶ 17 The circuit court issued an oral ruling, rejecting Lindsey’s claims of ineffective assistance

of counsel. The court found that there may be several strategic reasons why an attorney might not 

call Alonzo to testify, including: (1) Alonzo’s lack of a conceal carry license (CCL), which makes 

his testimony about putting the weapon in the glove compartment questionable; (2) proffered 

testimony that the gun was loaded and accessible; (3) the theory that Lindsey knew nothing about 

what was in the glove compartment would have led to Alonzo being questioned about the 

recovered cocaine and marijuana; (4) Alonzo could have been indicted on possession of 

contraband or charged with aggravated unlawful possession of a firearm; and (5) Alonzo’s 

suspected testimony that he did not know about the presence of the contraband might lead to a 

finding that he was an incredible witness. Ultimately, the court determined Niewoehner had not 

rendered ineffective assistance. On May 4, 2022, Lindsey filed a timely notice of appeal.

¶ 18 II. ANALYSIS

¶ 19 On appeal, Lindsey contends that the circuit court erred in dismissing his postconviction 

petition where he made a substantial showing that his constitutional right to effective assistance 

of counsel was violated. 

¶ 20 The Act (725 ILCS 5/122-1 et seq. (West 2012)) enables a criminal defendant to challenge 

their conviction based on alleged constitutional violations that occurred during their trial or at 
No. 1-22-0674 

- 8 - 

sentencing. People v. Dupree, 2018 IL 122307, ¶ 28. Proceedings under the Act are divided into

three stages of review. People v. Domagala, 2013 IL 113688, ¶ 32. At the first stage, a petitioner 

need only assert enough facts to set forth the gist of a constitutional claim. People v. Hodges, 234 

Ill. 2d 1, 9 (2009). The circuit court has 90 days to review a petition at the first stage. 725 ILCS 

5/122-2.1(a)(2) (West 2012). Issues decided on direct appeal are barred by res judicata and issues 

that could have been raised, but were not, are forfeited. People v. Blair, 215 Ill. 2d 427, 442 

(2005). If the circuit court—after a threshold evaluation of the allegations—finds that the petition 

has made an arguable constitutional claim, the petition then advances to the second stage and 

petitioner may be appointed counsel. People v. Tate, 2012 IL 112214, ¶ 10. Alternatively, if the 

court finds that the petition is frivolous or patently without merit, the court may dismiss the 

petition. Id. If the petition is not dismissed within the proscribed 90-day period, it must be 

docketed for further consideration. 725 ILCS 5/122-2.1(b) (West 2012). 

¶ 21 At the second stage, appointed counsel is required to perform three specific tasks, pursuant 

to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), to ensure a petitioner receives a 

reasonable level of assistance. People v. Smith, 2020 IL App (1st) 181220, ¶ 15. After counsel has 

made any necessary amendments to the petition, the State enters the proceedings and shall file an 

answer or motion to dismiss the petition. 725 ILCS 5/122-5 (West 2012). “During the second 

stage, the petitioner bears the burden of making a substantial showing of a constitutional 

violation.” Domagala, 2013 IL 113688, ¶ 35. A substantial showing means the allegations, if 

proven at an evidentiary hearing, would entitle the petitioner to relief. Id. The court does not

resolve evidentiary questions, nor does it engage in any fact-finding or credibility determinations. 

Id. Instead, all well-pled factual allegations are taken as true unless positively rebutted by the trial 

record. Id. A petition is advanced to the third stage—an evidentiary hearing—only when the 
No. 1-22-0674 

- 9 - 

allegations, supported by “affidavits, records, or other evidence” (725 ILCS 5/122-2 (West 

2012)), make a substantial showing of a constitutional deprivation. Dupree, 2018 IL 122307, ¶ 28. 

¶ 22 “A substantial showing is a showing that is real and weighty as opposed to illusory and 

trivial.” (Internal quotation marks omitted.) People v. Carballido, 2015 IL App (2d) 140760, ¶ 65. 

“[A]t a third-stage evidentiary hearing, the trial court acts as factfinder, determining witness 

credibility and the weight to be given particular testimony and evidence and resolving any 

evidentiary conflicts.” People v. Jackson, 2020 IL App (1st) 143025-B, ¶ 29 (citing People v. 

Domagala, 2013 IL 113688, ¶ 34). We will not reverse unless the trial court’s findings concerning 

credibility determinations or fact finding are manifestly erroneous. People v. House, 2023 IL App 

(4th) 220891, ¶ 78. Manifest error is clearly evident, plain, and indisputable. Id. “This deferential 

standard of review reflects the understanding that the trial court is in the best position to observe 

and weigh the credibility of the witnesses.” Id. Contrary to Lindsey’s argument, we do not review 

a third stage dismissal de novo unless no fact-finding or credibility determinations were necessary 

at the evidentiary hearing, i.e., there was no new evidence presented and the issues were all purely 

questions of law. People v. English, 406 Ill. App. 3d 943, 952 (2010). 

¶ 23 Lindsey claims his postconviction petition was improperly dismissed where he made a 

substantial showing that his constitutional right to effective assistance of counsel was violated. 

He alleges that his attorney was objectively unreasonable for failing to call his brother Alonzo at 

trial to testify as to ownership of the recovered firearm. The State counters that defense counsel’s 

testimony at the third-stage evidentiary hearing indicates that counsel’s decision not to call 

Alonzo was sound trial strategy. Further, the State argues that Lindsey is mistaken that the trial 

was “devoid of all meaningful adversarial testing,” where defense counsel was prepared for trial 

and cross-examined the State’s witnesses in great detail. 
No. 1-22-0674 

- 10 - 

¶ 24 Ineffective assistance of counsel claims are resolved pursuant to the standard set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate ineffective assistance, a defendant 

must establish both “that counsel’s performance was deficient and that the deficient performance 

prejudiced the defendant.” People v. Cathey, 2012 IL 111746, ¶ 23. Specifically, a defendant must 

show that “counsel’s performance was objectively unreasonable under prevailing professional 

norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694).

If a defendant cannot establish prejudice, their ineffective assistance claim necessarily fails. See 

People v. Cherry, 2016 IL 118728, ¶ 31 (failure to establish either prong precludes a finding of 

ineffectiveness). A reviewing court must be highly deferential in its scrutiny of counsel's 

performance. Strickland, 466 U.S. at 689. As the Supreme Court noted in Strickland, 

 “A fair assessment of attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's 

challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 

Because of the difficulties inherent in making the evaluation, a court must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action ‘might be considered sound trial strategy’.” Id. 

¶ 25 Whether to pursue a particular theory of defense is a decision made by trial counsel, and 

this choice constitutes a matter of trial strategy. People v. Little, 2021 IL App (1st) 181984, ¶ 52. 

“A decision that involves a matter of trial strategy typically will not sustain a claim of ineffective 

representation.” (Internal quotation marks omitted.) People v. Sanchez, 2014 IL App (1st) 120514, 

¶ 30 (quoting People v. Redmond, 357 Ill. App. 3d 256, 260 (2005)). If defense counsel is aware 
No. 1-22-0674 

- 11 - 

of exculpatory evidence, but does not present it, counsel’s performance may be deemed 

ineffective. People v. Bass, 2022 IL App (1st) 210249, ¶ 30. Indeed, counsel’s “failure to call 

witnesses who would have contradicted the State’s evidence and supported the defense can 

indicate deficient performance.” Id. However, counsel’s decision regarding which witnesses to 

call is one of trial strategy and is therefore generally immune from claims of ineffective assistance. 

Id.; See People v. Wilborn, 2011 IL App (1st) 09802, ¶ 79; People v. Chapman, 194 Ill. 2d 186, 

230 (2000); People v. Gibson, 244 Ill. App. 3d 700, 703-04 (1993). Moreover, “[i]n any 

ineffectiveness case, a particular decision not to investigate [or call someone as a witness] must 

be directly assessed for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel's judgments.” (Internal quotations omitted.) People v. Dupree, 2018 IL 

122307, ¶ 35 (quoting People v. Thompkins, 161 Ill. 2d 148, 161 (1994)). 

¶ 26 We agree with the trial court that Lindsey is unable to overcome the presumption that 

counsel’s decision was the product of sound trial strategy. Here, the record as developed reflects 

Niewoehner’s strategic reason for failing to call Alonzo as a witness at Lindsey’s trial. Counsel 

made a thorough investigation into Alonzo’s purported testimony, meeting with him several times 

prior to Lindsey’s trial and subpoenaing him to testify on the day of trial. However, after the State 

closed its case, Niewoehner believed they had failed to meet their burden. The State was unable 

at trial to introduce Lindsey’s alleged oral statements contained in the police reports and this, 

combined with Niewoehner’s concerns regarding Alonzo’s proposed testimony, led Niewoehner 

to decide not to call Alonzo. Niewoehner testified that his strategy was to rely on the State’s 

inability to prove Lindsey guilty. This is a reasonable trial strategy. See Sanchez, 2014 IL App 

(1st) 120514, ¶ 30. 
No. 1-22-0674 

- 12 - 

¶ 27 While many statements in Alonzo’s affidavit appear exculpatory, there are certain 

statements that indicate the possibility that Alonzo’s testimony could be damaging to Lindsey. As 

Niewoehner explained, if Alonzo had testified that there were no drugs present when he locked 

his gun inside the glove compartment of the vehicle, the inference could have been raised that 

Lindsey thereafter had unlocked the glove compartment and placed the contraband inside. Even 

if the gun was not his, Lindsey would have seen the weapon and been aware that he possessed 

control over it. The inference would necessarily be raised that Lindsey knew about the gun, which 

was counter to Lindsey’s argument. After Niewoehner testified that he did not call Alonzo as a 

matter of trial strategy, the parties inquired as to the reasonableness of counsel’s strategy, and the 

court found that Niewoehner’s performance did not constitute ineffective assistance. We agree. 

Particularly in light of the circumstantial evidence of Lindsey’s guilt that was offered at trial—

his evasive and furtive actions, his refusal to comply with the police commands, making several 

phone calls, refusing to leave the vehicle, throwing his car keys to another individual—we cannot 

say that counsel’s choice of strategy was so irrational or unreasonable that no reasonably effective 

defense attorney, facing similar circumstances, would pursue such a strategy. People v. King, 316 

Ill. App. 3d 901, 916 (2000). Further, we find the record does not demonstrate that Niewoehner’s

failure to present the testimony of Alonzo caused the trial to be devoid of meaningful adversarial 

testing. 

¶ 28 In conclusion, the trial court's denial of Lindsey’s postconviction claim of ineffective 

assistance of counsel was not manifestly erroneous. 

¶ 29 III. CONCLUSION

¶ 30 Based on the foregoing, we affirm the circuit court’s judgment dismissing Lindsey’s 

third-stage postconviction petition. 
No. 1-22-0674 

- 13 - 

¶ 31 Affirmed.