## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Colem an , 2012 IL App (4th) 110463

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CASS IAN T. COL EMAN, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-11-0463

Filed Dec ember 24, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The summary dismiss al of defe ndant’s postconviction petition as “fr ivolous and patently without merit” was reve rsed an d t h e cause was

rema nded, since the petition raised arguable claims of ineffe ctiv e assi s t an ce of counsel and a violation of due proce ss under Brady based

on the State’s failure to disclose that the contents of 15 bag s of suspected

coca ine seized from defe ndant wer e commingle d into one bag until afte r defe ndant’s counsel stipulated that the commingle d bag con t ained

coca ine.

Dec ision Under
Review Appea l from the Circuit C o u rt of Macon County
, No. 06-CF- 448; the Hon. Kathe rine M. McCar thy , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J. Pelletier
, Kar en Munoz, and Allen H. Andre ws, all of Offic e of State Appe llate Def

ender , of Spring field, for

appellant.

J ack Ahola, S t at e’s Attorney
, of Dec atur (Patrick Delfino, Robert Bide rman, and J ohn E. Tee fey
, all of State’s At t o rney s Appellate Prosecutor’ s Offic e, of c ounsel) for the People.

Panel J USTI CE APPL ETON delivere d the judgme nt of the court, with opinion. Presiding J ustice Steigmann and J ustice Pope concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Cassian T. Coleman, who is serving a sentenc e of 25 year s’ imprisonment for unlawful delivery of a controlled substance (720 I L CS 570/4 0 1 (a) (2)( D) (West 2006)),
appea ls from the summary dismiss al of his petition for postconviction relief

. See 725 I L CS 5/122-2.1(a) (2) (West 2010)

. In our de novo revie w ( People v. Brown
, 236 I ll. 2d 175, 184 (2010))
, we do not find the petition to b e b ased entirely on “indisputably meritless leg al theor[ies] or *** fanc iful fac tual alleg ation[s] ” ( People v. Hodges
, 234 I ll. 2d 1, 16 (2009))

. There fore
, we reve rse the trial court’s judgme nt and rema nd this case for further pro c e e dings.

¶ 2 I . BA CKGROUND ¶ 3 A. The Tr ial and the Sentenc e ¶ 4 In the jury trial in September 2007, the State ad du ced the following evidenc e. Z undra Cotton live d i n Dec atur with Gena ro Hendrix
, a coca ine deale r. On Marc h 22, 2006, the police raide d their house. De fenda nt was standingon the steps of the f ront porch, and they

arr ested him. They

sear ched his pe rson and f ound that he had a key to the front door of the house. ¶ 5 Cotton’s purse wa s o n t h e k i t ch en t able, and inside her purse wer e 15 bag s of white powder

. Also, two black plastic bag s were crumpled up on the table, beside the purse, and inside these bag s was a clea r plastic wr apper. Such materia ls commonly wer e used to packa g e kilog rams of c ocaine

. ¶ 6 Def

endant’ s fing erpri n t s we re o n t h e two black plastic bag s beside the purse. Cotton testified that defe ndant was Hendr ix ’s supplier and that, ear lier in the morning on the day of the raid, defe ndant brought over a packa g e of coca ine and that she helped him brea k it up and put it in t he 15 bag s that the police subseque ntly found in her pur se.

-2-¶ 7 The pa rties enter ed into the followingstipulation: “(1) That Dan Ashenfe lter is a Police Offic er for the City of Dec atur and is assig ned as Evidenc e Of

fice r for the depa rtment. That on Marc h 30th, 2006, he retrie ved People’s Ex hibit[ ] [No.] *** 2 *** from the evidenc e locker at the Decatur Pol ice Depar tment. That m ember s of the publi c are not allowed acc ess to the evidenc e locker

. *** People’s Ex hibit [No.] *** 2 *** [was] then in a sea led condition.
That on that date[,] Dan Ashenfe lter transporte d and delivere d Peo p le ’ s E x hibit [No.] *** 2 *** to the I llinois State Police Crime L ab in Springf ield, I llinois

. *** Ashenfe lter made no chang es or alterations to the exhibi t[ ] and did not tamper with the contents of the exhibit [ ] in any

way

. *** People’s E x h i b i t [ ] [No.] *** 2 *** [i s] now in the same or substantially the

same c ondition as [ it was] on March 30th, 2006.
* * * (4) That Michae l Cravens was employ ed as a For ensic Scientist with the I llinois State Police Crime L ab in Springf ield ***. [He] is qual ified as an expert witness in the identification of c ontrolled substance s. That on Marc h 3 0 th, 2006, he rec eived People’s Ex hibit [No.] 2 *** from Dan Ashenfe lter at the C rime L ab. *** Peop l e’s Ex hibit [No.] 2 *** [was] then i n a sealed condition[ ,] and the exhibi t[ ] [i s] now in the s ame or substantially the s ame condition as whe n he re ceive d [i t]

. That he subsequently perf ormed tests on People’s Ex hibit [No.] 2 ***. *** [B] ased
upon t h e tests he performed [and] his expe rtise[,] Michae l Cravens was able to determine [,] to a reasonable degree of scientific certainty[,] that the white powder in People’ s Exhibit [No.] 2 was 926.0 grams of cocaine .” (Empha sis added.) ¶ 8 Immed i at ely afte r rea ding that stipulation to the jury
, the State called David Dailey , a detec tive with the Dec atur police. Dailey testified that on Marc h 22, 2006, he helped execute the s ear ch warra

nt at the house whe re Cotton and He ndrix lived. At the s cene , he weighe d the 15 bag s from the purse. Nine of the bag s weig hed 63 g rams apiec e, and the other six bag s weig hed 64 grams apiec e. He field-tes t ed o n l y 1 o f the 15 bag s: it tested positively for

coca ine. Then he emptied the 15 bag s into a larg er evidenc e bag
, P eo p l e’ s ex hibit No. 2; seale d it; and took it t o the evidenc e vault. ¶ 9 After Dailey ’s testimony
, the State rested, and outside the p re s en ce o f t h e j u ry , the
prosec utor, J ay Scott, offe red exhibi ts in evidenc e. Def ense counsel, Scott Rueter, objected to the proposed a dmission of P eople’ s exhi bit No. 2, and at the same ti me, he moved f or a direc ted verdic t. Rueter arg ued that beca

use Dailey commingle d the contents of the 15 bag s at the scene and beca

use the crime laboratory conseque ntly could not have tested the contents of eac h b ag separ ately for the prese nce of coca ine, the State had failed to “esta blish[ ] a prima fac ie case with respe ct to the 962 grams of coca ine.” Rueter argued: “We haven’ t had
any testimony that, and I know the lab can do this, we haven’ t had any testimony that’s [ sic ] it’s 95 perc ent pure coca ine, or if it’s, you know, 12 perc ent pure coca ine. Ther e’s nothing

-3-to show that what the off icer did didn’t compromise the amount of we ight involved he re.” ¶ 10 S co t t o ffe red a twofold response

. First, he sug g ested that Ru et er ’s ar gu m en t wa s implausible, considering the “empty kilo wra pper” that police office rs found on the kitchen table and Cotton’s testimony that she had helped defe ndant brea k up the “kilo” (1,000 g rams) into the 15 bag s, which, in fac t, cumulatively weig hed almost a kilogr am (926 g rams). Scott
argued: “I think it’s kind of throwing common sense out the window to think that their [ sic ] weig hing, bag g ing up some other substance.” Second, Scott reminded the trial court of the stipulation. He said: “We have a stipulat i o n t h at this is 926 g rams of coca ine and now to turnaround [ sic ] at t he end and say it’s not 926 g rams of coca ine I don’t think that’s really beingfair in this ca se by

the def ense.” ¶ 11 Rueter replied: “You know at trials we try and prepa re for and do our best and sometimes the ev i d en ce co mes in differ ent than we expect. *** I think based upon the evidenc e as it now stands we ha

ve compr omised evidenc e.” ¶ 12 After hear ing these arguments and counterar guments, the t rial co u rt overr uled def ense counsel’s obje ction to People’s exhibitNo. 2 and a dmitted the exhi bit in evidence. ¶ 13 The jury returne d, and the defe nse prese nted its case , followed by rebuttal evidenc e from the State. Then it wa s time to make closingarguments to the jury

. ¶ 14 Be fore closing arguments, outside the jury ’s prese nce, Scott made an oral motion to ba r the defe nse fr om sugg estingto the jury that People’s exhibit No. 2 was “not nece ssar[ily ]” 926 grams of coca ine. Scott explained to the trial court that, befor e trial, he and Ru et er ag ree d to stipul ate that People’ s exhi bit No. 2 w as 926 g rams of c ocaine and that the State had relied on that stipulation in the prese ntation of its case

. Scott “under st[ oo]d how things

come up,” but he believed it would be unfair to the State t o al l o w t h e defe nse now to contra dict t h e stipulation. At this late stag e of the trial, he would be “kind of hamstrung ” beca use, in the trial, he relied on the stipulation and did not “have the witness come into [ sic ] testify .” ¶ 15 Rueter insisted, “I ’m still sticking with the stipula t i o n ”–but he never theless wanted to
argue to the jury that there was rea sonable doubt as to the weig ht of the coca ine. He told the trial court: “B ut Ithink in all fairness too, g iven how the evidenc e has come in to e stablish

as we have that the office r was the one who mix ed the individual bag s and we don’t know–I
mean, it’s the same as if the office r had taken a bag of talcum powder and a bag of coca ine[ ] that weig hs 10 g rams and mix ed it toge ther.” I t was impossibl e to tell if the one bag had been

coca ine (or a substance containing coca ine) and the other 14 bag s had been mere ly a cutting
ag ent. ¶ 16 The trial court decide d: “B ased on [t he] s t i p u l at i o n, I will not allow this defe ndant to
argue that People’ s Ex hibit [ No.] 2 is any thing less than 926 grams of c ocaine .” ¶ 17 Rueter replied: “I ’m not g onna argu e t h at E x h ibit Number 2 is less than 926 g rams of

coca ine. But I do intend to a rgue about the possibili ty that the office rs[ ] are the one[s] that made it that weig ht by combining those items.” One of the bag s, Rueter admitted, “proba bly [was] coca ine beca

use of the field test,” but the weig ht of that individual bag was 64 g rams at the most. Dailey did not field test the other 14 bag s befor e dumping the contents of all the bag s into a single container
, and those 14 bag s “could have been inositol or baking powder .”

-4-Dailey “ra ised that amount to over 900 g rams by commingli n g those amounts without

keepingthem separ ate f

or identification and without perfor ming a field test.” ¶ 18 In response , Scott pointed out, first of all, that “a field test [was] not evidenc e proving what a substance [was] ”; a field test was mere ly “pre liminary .” Any way , more to the point, if, instead of enteri n g i nto the stipulation, the defe nse had taken the position, from the beg inning, that the separ ate contents of eac h of the bag s wer e unproved by chemica l analy sis, the State then could have called a witness to testify whether “ther e was a very small amount of cocaine.” Instead of calling such a witness, the State had re lied on the s tipulation. Scott said: “I mean that would have been something we could have g one through with[ ] a chemist
to show that this wasn’t, y ou know, it wasn’t 1/15th coca ine and the re s t o f i t wa s talcum powder .” ¶ 19 The trial court ag ain agr eed with the S tate and forba de th e d efense to argue to the jury that People’s exhibit No. 2 mi g ht not be 926 g rams of c ocaine

. ¶ 20 Counsel made their closing arguments. The jury found defe ndant guilty

. The trial court sentenc ed him to 25 y ear s’ imprisonment. He took a dire ct appe al.

¶ 21 B. The Direc t Appeal ¶ 22 In his direc t appea l, defe ndant argued the trial co u rt had err ed by admitting People’ s exhibi t No. 2 into evidenc e, beca use, acc ording to the evidenc e, Dailey had tampere d with,

or altere d, this exhibi t by dumping the contents of all 15 bag s i n t o a s ingle container and
conseque ntly the crime laboratory had been unable to separ ately test the contents of eac h bag

. People v. Coleman
, 391 I ll. App. 3d 963, 970 (2009). Defe ndant arg ued that the State had failed to re but this evidence of tampering , makingthe cha in of custody insufficient. Id. ¶ 23 We acknow ledg ed that beca use the punishment for possession of a controlled substanc e depende d on how much of a s u bstance containing a controlled substance the defe ndant possessed, commingling a controlled substance with a leg al substance could have signific ant penal implications. Id. at 972-73. (Ac tually
, defe ndant was convicte d of delivering a controlled substa

n c e , b ut th is distinction makes no differ ence .) We conclude d, howeve r, that, for purposes of the trial, the stipulation had eliminated the possibili ty that the substances in
any of the untes ted bag s wer e entirely leg al substances, such as baking powder

. We explained: “[W ]hether Dailey ‘tamper ed with,’ or ‘alter ed,’ the evidenc e depends on whether all 15 bag s contained coca ine befor e he emptied them into one evidenc e bag

. Initially
, there

wer e 15 phy sically separ ate substances. W ere all 15 substances coca ine or a subst ance containing coca ine? Def

ense counsel stipulated as follows: ‘[B]ased upon the tes t s he perf ormed [and] his expertise[,] Michae l Cravens was able to deter mine[,] to a

rea sonable deg ree of s cientific cer tainty [,] that the white powder in People’s [e] x hibit [No.] 2 was 926.0 g rams of coca ine.’ L ike the trial court, we take that stipulation at fac e value. ***
*** [D] efe ndant failed to car ry his burden of producing evidenc e of actua l ta mpering
, alteration, or subs tituti on. Mix ing the 15 quantities of cocaine toge ther di d n ot chang e the s ubstance so as to incre ase criminal liability : it alway s was, and rema ined, cocaine

-5-[according to the stipulation]

. There fore
, we find a s u ff i ci ent chain of custody .” Id. at 973-74. ¶ 24 On direc t appea l, defe ndant made another argument as an alternative to his challeng e to the chain of custody : he argued that his tria l c ounsel had rende red ineffe ctive assistance by
st i p u lating that, “ ‘base d on the tests he perf ormed ***[,] Michae l Cravens was able to d eter mine[,] to a rea sonable deg ree of scientific cer tainty [,] that the white powder in People’s exhibi t [No.] 2 was 926.0 g rams of coca ine.’ ” Id. at 974. We declined to consider the merits of that cl ai m of ineffe ctive assistance
, beca use we thought a postconviction proce eding would be the best forum in which to addr es s that claim. Id. at 975. So, we aff irmed the conviction. Id. at 985. The supreme court denied leave to appea l. People v. Coleman
, 234 I ll. 2d 530 (2009).

¶ 25 C. The Postconviction Proceedingin Trial Court ¶ 26 On August 20, 2010, an attorney , J ames Dedman, filed a p o s t co n v i ct i o n petition on defe ndant’s behalf

. The petition asser

ted three constitutional violations: (1) Rueter rende red ineffe ctive assistanc e by enter ing into the s tipulation reg arding People’s ex hibit No. 2; (2) Rueter rende red ine ffe ctive assistanc e by failingto call Gena

ro He ndrix and Ji mmy

L ester to testify for the defe nse; and (3) the State failed to make a pretria l disclosure of information favor able to the defe nse, namely
, Dailey ’s mix ing the substances from the 15 bag s toge ther without having the substances in e ach of the bag s tested sepa

rate ly

. ¶ 27 In support of the postconvictio n p eti tion, Dedman submitt ed a copy of our opinion on direc t appea l as well as an aff idavit by defe ndant. In his aff idavit, defe ndant aver

red as follows:
“3. Prior to my jury trial ***[,] I advised my counsel that there we re two defe nse witnesses I

wished to ca ll: Genero H endrix and J immy L ester. 4. These w itnesses wer e not ca lled [by ] m y attorney

. 5. Gene ro Hendr ix would have testified that the drug s in question wer e all his and not mine.
6. J immy L ester would have testified that he did not b ri n g t h e d rug s to Dec atur on Marc h 22, 2006, or any o t h er time, for me and that he observed my arr ival on the date in que stion at the home of Z unden [ sic ] Cotton wher e he did not see me bring any thing into the house or the kitche n.

***
8. At the trial David Dailey
, a Dec atur Police Detec tive testified that he found 15 bag s of materia l a

nd that he tested only one bag for coca ine befor e he emptied them all into one larg e evidenc e bag which beca me People’s Ex hibit [No.] 2. This in fo rmation had been withheld fr o m t h e defe nse and was not known by the defe nse at the time of trial. There was no repor

t in the Pre-Tr ial Discover y disclosing what he had done, mix ing the bag s.” ¶ 28 On October 8, 20 1 0
, t h e t ri al co u rt en t er ed an o rd er s ummarily dismiss ing the postconviction petition as “fr ivolous and patently without mer i t .” See 725 I L CS 5/122-

-6-2

. 1 (a )( 2 ) (West 2010). As for defe ndant’s claim that Rueter had rende red ineffe ctiv e

assistance by entering into the stipulation reg arding People’ s ex h i b it No. 2, the court observe d that, apar

t from the question of whether enter ing into thi s stipulation was substandard perf

ormanc e on Rueter’ s part, defe ndant had to show resulting “pre judice.” See Strickland v. W

ashington
, 466 U.S. 668, 687 (1984). In the court’s view, defe ndant had failed to make this showing of

“pre judice.” T he cour

t rea soned: “Clear ly
, the purpose of the stipulation was to make it unnece ssary for Cravens to testify

as to his opinion that the white powder in People’s exhibi t [No.] 2 was 92 6 gra m s o f

coca ine. The Def

endant does not prese nt any evidenc e or sug g estion that he could have adduce d evidenc e that is outside the rec ord indicating either that Cravens would not have testified at the trial or that his testimon y would have been any differ ent from the stipulation. There fore
, the Court finds that the Def endant has failed to make the requisite showing that there is a rea sonable proba bility that, but for counse l’s alleg ed errors, the result of the pr ocee ding w ould have be en diffe rent.” Thus, in the court’s opinion, defe ndant could establish “p rejudice” within the meaning of Strickland o n l y b y p re senting evidenc e that, if Rueter had declined to enter into the stipulation, (1) Cravens would not have testified at t ri al o r (2) if Cravens had testified, he would not have testified that People’s exhibit No. 2 was 926 grams of c ocaine

. ¶ 29 As for failing to call Hendr ix and L ester as wit n es s es , t h e t rial court reg arde d that decision as “cle arly within the rea lm of trial counsel’s strateg ic decisions.” Be s i des, defe ndant’s ave rment as to what these two witnesses would have said on the stand was, in the cour t’s view, insuffic ient to warr ant an e videntiary hear ing. ¶ 30 I t does not appea r that, i n i t s d i s m issal order
, the trial court expli citly addre ssed the

rema ining claim in defe ndant’s postconviction petition, namely
, the claim that the State had violated Brady v. Maryland
, 373 U.S. 83 (1963), by failing to disclose to the defe nse, ahea d of trial, that Dailey had commingle d the substances by dumping the contents of the 15 bag s i n t o a single container and that, as a conseque nce, the crime laboratory never had an opportunity

to analy ze the 15 substances se parately

.

¶ 31 D. The Motion for a n Ex tension of Time ¶ 32 On No v em b er 9
, 2010, 32 day s afte r the trial cour t s u m m ar i l y d i s m i s s ed t h e postc o n v i ct i o n p etition, Dedman filed a “Motion To Ex tend Time To File a Motion To Reconsider .” This actua lly seems to be a motion to file a motion for rec ons i d er ation instanter
, beca

use th e proposed motion for rec onsideration, handwr itten by defe ndant but unsigne d, is attache d to Dedman’ s motion. Dedman writes: “The Def endant has draf

ted a Motion to Reconsider
, a copy of which is attache d here to, but beca use he is incar cer ated he cannot mail this motion t o the cler k and other

parties until November

9, 2010, or later .” ¶ 33 On November 12, 2010, defe ndant fil ed a ty pewr itten version of his p r o s e motion for

rec onsideration, which bor e his own sig nature

. ¶ 34 We note t hat t he defense failed to o b t ai n an ex t ension of t ime within 30 day s afte r the
summary dismiss al. This would seem to pose a jurisdictional problem. Be cause the trial c o u r t g rante d no extension within the 30-day period, the notice of a ppeal, f iled on J une 2, 2011,

-7-would seem to be untimely

. See Andersen v. Resource Economics Corp.
, 133 I ll. 2d 342, 348

(1 9 9 0); People v. Hansen
, 2011 I L App (2d) 081226, ¶ 10; People v. Dominguez
, 3 6 6 I l l

. App. 3d 468, 472 (2006). ¶ 35 As i t t u rn s out, though, we need not consider the timeliness of t his appea l, beca use on Se ptember 15, 2011, the supreme court issued a supervisory order direc ting us to reg ard defe ndant’s J une 2, 2011
, n o t i ce o f appea l “as a validly filed notice of appea l.” People v. Coleman
, No. 112857 (Sept. 15, 2011) (nonpre cede ntial supervisory order). I t would seem, t h en , that we should reg ard the motion for an extension of time, the motio n fo r

rec onsideration
, and the denial of the motion for rec onsideration as valid, too, since they
prec eded the “validly

filed” notice of appe al. ¶ 36 We mere ly did not want to appea r t o be overlooking, or gl o ssing over, what otherwise migh t h av e b een a jurisdictional problem. See People v. Smith
, 228 I ll. 2d 95, 106 (2008) (“We take this opportunity to remind our appellate court of the importance of asc erta ining whether it has jurisdiction in an appea l. *** Indeed, the asce rtainment of its own jurisdiction is one of the two most important tasks of an appellate court panel when beg inning the revie w of a c ase.” ).

¶ 37 E. The Pro Se Motion for Reconsider ation ¶ 38 On Marc h 4, 2011, Dedman filed a motion to withdraw fr o m repr esentingdefe ndant, beca use defe ndant wished to proce ed pro se

. (De fenda nt filed a rathe r extensive response to Dedman’ s motion to withdraw, rec apitulating for the trial court all his corr espondenc e with Dedman. We need not discuss these interac tions betwee n Dedman a n d d e fenda

nt.) On Marc h 30, 2011, the trial court g rante d Dedman’ s m o tion to withdraw. Dedman’ s withdrawa l enable d the court to consider defe ndant’s previously filed pro se motion for rec onsideration. ¶ 39 In his motion, defe ndant argued that, if no t fo r Ru et er’s “er roneous stipulation” as to People’s exhibi t No. 2, the State would have had to call Cravens to testify and, as defe ndant’s investigation reve aled, Cravens would have admitted he had perf ormed no purity test on the exhibi t. In the course of the postconviction proce eding
, defe ndant hired Bill C l u t t er Investig ations, and an investigator, Vane ssa Nelson-Knox, spoke with Cravens. Attache d to the motion fo r rec onsideration was an unsworn letter, dated November 13, 2009, from Nelson-Knox to defe ndant stating: “As y ou alre ady know, Mr. Cravens stated that he did not perf orm a purity

test on the evidenc e.” ¶ 40 In addition, defe ndant argued in his motion for rec onsideration that the State had violated Brady by failing to m ak e a t i m ely pretria l disclosure of information that was materia lly favor able to the defe nse, namely : ( 1) the comminglingof the c ontents of the 15 bag s at the crime scen e an d (2) the failure to test People’s exhibi t No. 2 for purity

. Def endant complained: “An indic t m en t wa s enter ed ag ainst the defe ndant for a felony that was enhanc ed beca

use o[f] the am o u

nt of g rams involved minus any true indication the controlled substance[s] were in fa ct 926 g rams total.” ¶ 41 On Marc h 30, 2011, defe ndant followed up by filing an aff idavit by Nelson-Knox. In her aff idavit, Nelson-Knox aver red that she was a private investigator employ ed by Bill Clutt er Investig ations in Springf

ield; that she was assig ned to do investigation work in defe ndant’s

-8-postconviction case ; and that on Dec ember 21, 2009, she interviewe d Cravens by telephone.

Specifica lly , her a ffidavit re ads as f ollows:
“3. On Dec ember 21, 2009, I interviewe d by phone, reti re d I l linois State Police For ensic Scientist, Michae l E. Cravens, reg arding the evidenc e of 926.0 g rams of chunky white powder, and <.1 g rams of a chunky white mater ial, that he tested in the June 22, 2006 I llinois State Police labora tory repor t # S06-002598.
4. Mr. Cravens stated to repor ting ag ent that he did not p er fo rm a quantative [ sic ] analy sis on this evidenc e to che ck for purity of coc aine.
5. Mr. Cravens stated to repor ting ag ent that he does not support how the collection of evide nce w as per formed in this ca se, re fer ringto it as ‘bad evide nce g ather ing.’
6. Mr. Crave ns was thanked for his time and conf irmed that he ha d all of re porting
ag ent’s conta ct information.
7. Attempts w ere made by phone in 2010 to inter view Mr. Cravens ag ain to further clar ify the ac tual tests that were perf ormed by him in thi s case

. 8. Mr. C ra v en s did not responde d [ sic ] to any of Reporting ag ent’s reque sts for another interview.” ¶ 42 On May 25, 2011, the trial court denied defe ndant’s motion for rec onsi d er at i on. The court made the followingdocket e ntry : “AS TO DEF ENDAN T’S MOTI ON TO RECONSI DER–Cause remove d from advisement. The c ourt has re viewed the common law record as well as the D efe ndant’s Motion
to Reconsider and finds as follows: The court enter ed an Orde r deny ing Def endant’ s P et ition for Post-Convi ction Relief on October 8, 2010. The Court finds t h at t h e Def endant raises the same issues in his Motion for Reconsider ation as was previously set forth in the orig inal Petition for Post-Convi ction Relief. There fore
, the Court has previously ruled on these issues and DENI ES the Def endant’ s Motion to Reconsider the Petition for Post -Conviction Relief.” ¶ 43 This appea l followed.

¶ 44 I I . ANALYSI S ¶ 45 A. The Standa rd for Summary

Dismissal ¶ 46 The State as s er t s t h at “[ t ] h e t rial court proper ly denied defe ndant’s postconviction petition as it failed to st ate the g ist of a constitutional claim.” For purposes of a summary dismiss al, howeve r, the question is not whether the petition “state[s] the g ist of a constitutional claim.” Rather, the quest i o n i s wh ether the petition is “fr ivolous or *** patently without merit”– that is the standard the statute lay s down for the summary dismiss al of a postconviction petition. 725 I L CS 5/122-2.1(a) (2) (West 2010). The supreme court has said: “[O]ur use of the term ‘g ist’ de scribes what the defe ndant must alleg e at the first stag e; it is not the leg al standard used by the circ uit court to evaluate the petition, under section

-9-122-2.1 of the Act, which deals with summary dismiss als. Under that section, the ‘g ist’ of the constitutional claim alleg ed by the defe ndant is to be viewed within the framework of the ‘f rivolous or *** patently

without merit’ test.” Hodges , 234 I ll. 2d at 11. ¶ 47 Section 122 -2

. 1(a) of the Post-Convi ction Hea ring Act (725 I L CS 5/122-2.1(a) (West 2010)) sa y s that, within 90 day s after the filingand docke ting of a postconviction petition, the trial court shall examine the petition and shall enter an order pursuant to section 122-2.1 (72 5 I L CS 5/122-2.1 (West 2010)). Subsection (a) (2) (725 I L CS 5/122-2.1(a) (2) (West 2010)) say s that, if the defe ndant h as been sentenc ed to imprisonment and if the court deter mines that h i s o r her petition is “fr ivolous or *** patently without merit,” the court “shall dismiss the petition in a written order
, specify ing the finding s of fac t and conclusions of law it made in rea ching its decision.” This first stag e in the po s t conviction proce eding “allows the c ircuit court to act strictly in an administrative ca pacity by scre eningout those petitions which are with o u t l egal substance or are obviously without merit.” (Interna l quotation marks omitted.) People v. Tate
, 20 1 2 I L 1 1 2 2 1 4
, ¶ 9. I f the court does not summarily dismiss the petition a s “fr ivolous or *** patently without mer it” within 90 day s afte r the filing and docketing of the petition, “the court shall order the petition to be dockete d for further consideration in acc ordanc e with Sections 122-4 th ro u gh 1 2 2 -6” (725 I L CS 5/122-4 to 122-6 (W es t 2 0 1 0 )) : that is, the petition advanc es to the second stag e of the postconviction proce eding . 725 I L CS 5/ 122-2.1(b) (West 2010). ¶ 48 The Post-Convi ction Hea ring Act does not define the term s “frivolous” and “patently without merit,” but the supreme court ha s expl ained: “[A] pro se petition seeking postconviction relief under the Ac t m ay be summarily dismiss ed as ‘fr ivolous or *** patently without merit’ pursuant to section 122-2.1(a )(2) only if the petition ha s no arguable basis either in law or in fac t. A petition whic h lacks

an ar gu ab l e basis either in law or in fac t is one which is based on an indisputabl y meritless leg al theory or fanc iful fac tual alleg ation. An exa m p le of an indisputably meritless leg al theory is one which is completely contra dicted by the rec ord. [C itation.] Fa nciful fac tual alleg ations include those which ar e fanta stic or delusional.” Hodges
, 234 I ll. 2d at 16-17.
T h e unlikelihood of a fac tual proposition does not make that proposition “fa ntast i c o r delusional,” for

the unlikely

can tur n out to be true. (I

nterna l quotation mar

ks omitted.) Id. at 13 & n.5. ¶ 49 Thus, a trial court should not summarily dismiss a postconviction petition unless its lack of leg al and fac tual merit is cer tain and indisputable. For example, if the petition claims ineffe ctive assistance of cou n s el
, the question, at the first stag e of the postconviction
proce eding
, is not whether the defe ndant has “ ‘demonstrat e[ d]’ or ‘prove [d] ’ ineffe ctive assistance by ‘showing ’ that counsel’s perf ormanc e was defic ient and that it prejudice d the defe ns e. ” T

a t e , 2 0 1 2 I L 112214, ¶ 19. That is the burden the defe ndant must car ry in the second stag e, in which he or she must “make a substantial showing of a const i t u t i o nal violation.” (I

nte r n a l q u otation marks omitted.) Id. In the first stag e, by contra st, “[a] differ ent,

more lenient formulation applies” ( id. ): we apply not the Strickland test but the “ ‘ar guable’ St r i ckland test,” and that qualifier “ar guable” is cruc ial–it is not sy nony mous wi t h

-10-“ultimately corr ect” ( id. ¶ 20). “A t t h e first stag e of postconviction proce eding s under the

Act, a petition alleg ing ineffe ctive assistance may not be summarily dismis s ed i f (i ) i t is arguable that counsel’s perf ormanc e fell below an objective standard of rea sonablene ss and (ii) it is arguable that the defe ndant was prejudice d.” (I nterna l quotation marks omitted and emphase s in origina l.) Id. ¶ 19. ¶ 50 As we have said, we decide de novo whether t h e p et i t i o n d es erve s to be summarily dismiss ed as leg ally and fac tually inarguable. Hodges , 234 I ll. 2d at 9. “[A] petition which is sufficie nt to avoid summary dismiss al i s s i m p l y one which is not frivolous or patently without merit.” (Emphasis in orig inal.) Id. at 11.

¶ 51 B. O mitti ngTo Call Hendrix and L ester a s Wi tnesses for the Def ense ¶ 52 In support of his a lleg ation that Rueter rende red ineffe ctive assistance by failing to call Hendr ix and L ester as witnesses for the defe nse, defe ndant submitt ed his own aff idavit

aver ring that Hendr ix and L ester “would have testified” t o cer tain fac tual propositions. Def endant did not explain, in his postconviction petition, why aff idavits from Hendrix and L ester the mselves wer e unava ilable. ¶ 53 Section 122-2 of the Post-Convi ction Hea ring Act (725 I L CS 5/122-2 (West 2010)) say s: “The petition shall have attache d there to aff idavits, rec ords, or other evidenc e supporting its alleg ations or shall state why the same are not attache d.” Other than saying that the aff idavits
must support the alleg ations in the postconviction petition, section 122-2 say s nothing about the require d contents of the aff idavits. Be cause the aff

idavits are supposed to “esta blish that

a petition’s alleg ations are capa ble of objective or independe nt corr oboration” ( Hodges
, 234 I ll. 2d at 10), there by demons trating that an evidentiar y hear ing would be worthwhile ( People v. Harris , 91 I ll. App. 3d 376, 379 (1980)), the aff idavits should “be made on the persona l knowl ed ge o f the aff

iants” and should “af

firmatively show that the aff iant, if sworn as a witness, [could] testify

competently

there to” (I ll. S. C t. R. 191(a) (e ff. July 1, 2002)). ¶ 54 Gra

nted, the rule we are qu o t i n g, Ru l e 1 9 1 (a ), d oes not apply
, by its terms, to proce eding s for postconviction relief

. Id. Neve rtheless, the supreme court has applied Rule 191(a) to a

nother ty pe of collate ral proc eeding , a proc eeding pursuant to se ction 2-1401 of the Code of Civil Procedur e (I ll. Rev. Stat. 1983, ch. 110, ¶ 2-1401) for relief from judgme nt. People v. Sanchez
, 115 I ll. 2d 238, 285 (1986). Given the purpose that an aff idavit attache d
to a postconviction petit i o n i s s up p osed to serve , we conclude that this aff idavit likewise should consist of fac tual propositions to which the af fi an t co u ld testify in an evidentiar y hear ing. ¶ 55 I f ca lled to the witness stand, defe ndant could not testify to what Hendr ix an d L es t er would say if th ey we re ca l l ed to the wit ness s tand. S ee People v. Gray
, 2011 I L App (1st) 091689, ¶ 16 (“[T]he content of the ‘af fidavit’ is no more than hear say , which, as a g ener al rule, is insufficient to sup p ort a [post conviction] claim.”)

. His testimony as to what they would say wo u l d be objectionable on the g rounds of speculation and hear say

. In his postconviction petition, defenda nt did not expl ain why

aff idavits from Hendr ix and L ester

wer e unavailable

. See 725 I L CS 5/122-2 (West 2010) (“or shall state why the same are not attache d”). Be cause defe ndant’s alleg ations of ineffe ctive assistance with respe ct to the

-11-failure to call Hendr ix and L ester at trial wer e unsupported by “af fidavits, rec ords, or other evid en ce , ” t h ose alleg ations by themselves did not merit further proce eding s, as the trial
court c orre ctly

held. Id. ¶ 56 The pe tition, however, c ontains other alleg ations.

¶ 57 C. Ineff ective A ssistance B y

Entering into the Sti pulation ¶ 58 1. The Threshold Question of W hich Materials in the Rec ord
W e Should Consider W

hen Re viewing This C laim ¶ 59 The State say s that, “[i] n appe al i n g t h e t ri al co urt’s dismiss al of his postconviction petition, defe ndant relies almost entirely on his arguments and aff i d av i t s contained in his motion to rec onsider” and in his “re sponse to his post-conviction attorney ’s m o t i on to withdraw.” The State then cites two pag es of defe ndant’s bri ef

. I n t h ose cited pag es, d ef endant ref

ers to Nelson-Knox’s unsworn letter as well as to her subseq u en t aff idavit–materials that defe n d an t d i d indeed submit in support of his motion for

rec onsideration. ¶ 60 Ne l s o n -Knox’s letter, beca use it was unsworn, did not war rant further

postconvictio n p ro ce eding s. See People v. Enis
, 194 I ll. 2d 361, 379-80 (2000). Affidavits, howeve r, ar e valid supporting evidenc e (725 I L CS 5/122-2 (West 2010)), and defe ndant additionally filed

an aff idavi t b y Nelson-Knox. I t is true that, in her aff idavit, Nelson-Knox repor ts what Cravens told he r and that the rec ord conta ins no affidavit by Cravens himself. But NelsonKnox’s aff

idavit explains the lack of an aff idavit from Cravens himself: he never responde d
to her reque sts for a further interview. See id. (“T he petition shall have attache d there to aff idavits *** or shall state why the same are not attached. ” (Empha sis added.))

. ¶ 61 To be sure, as the S t at e p o i n ts out, Nelson-Knox’s aff idavit was not “attac hed” to the postconviction p et i t i o n ( id. ), but, instead, defe ndant filed her aff idavit in support of his motion for rec onsideration, after the summary dismiss al of his petition. The St a te a r g ues that, by submitt ing Nelson-Knox’s aff idavit afte r the sum mary dismiss al of the petit ion instead of moving to am en d the petition befor e the summary dismiss al by adding Nelson-Knox’s aff idavit to it, defe ndant is trying to evade the “wa iver,” or more acc urate ly
, forf eiture, i.e.
, the proce dural defa

ult, mandated by section 1 2 2 -3 (725 I L CS 5/122-3 (West 2010)). That section provides: “Any claim of substantial denial of constitutional rig hts not raised in the

o ri gi n al or an amende d petition is waived.” (Emphasis added.) Id. The claim
, howeve r, alre ady was in the postconviction p etition that Dedman filed: a claim that Rueter had rende red ineffe ctive assistance by enter ing into the stipulation. Nelson-Knox’s aff idavit was not a new claim; rathe r, it was additional evidenc e in support of the pree x i s t i n g cl ai m. Def endant reque sted the trial court to rec onsider the summary dismiss al of that claim in the light of a dditional evidence

. ¶ 62 A defendant may file a motion to “re consider,” or t o vacate, t he sum mary dismiss al of

a postconviction petition (735 I L CS 5/2-1203(a) (West 2010); Dominguez
, 366 I ll. App. 3d at 472), and one of t he purposes of a motion for reconsider at i o n i s “t o bring to the court’s attention newly discovere d evidenc e” ( Martinez v. River Park Place, LLC
, 2012 I L App (1st) 111478, ¶ 23). I f the motion for rec onsideration prese nts new evidenc e, it lies within the trial

-12-court’s dis cr et ion whether to consider the new evidenc e. River Village I, LLC v. Central

Insurance Cos.
, 396 I ll. App. 3d 480, 492 -9 3 (2 009); Soderlund Brothers, Inc. v. Carrier Co rp. , 278 I ll. App. 3d 606, 617 (1995). I f, in its discretion, the trial court in t h i s ca s e decide d to disreg ard Nelson-Knox’s aff idavit on the g round of lack of diligenc e, one might expect that the court would have said so. The court did not say so. Instead, the court mere ly said that the motion for rec onsideration “ra ise[d ] the same issues” as the postconviction petition and that the cour t “ha[d] previously

ruled on these issues.” ¶ 63 So, it ap p ea rs that, in the t rial court’s view, the problem wit h Nelson-Knox’s aff idavit

was not its lateness but its leg al insignifica nce. The court did not decline t o co n s i d er her af fi davit. Rather, the court said it had “re viewed the common law rec ord,” wh i ch
, b y definition, would include “any documentar y exhibi ts offe red and filed by any party .” I ll. S. Ct. R. 321 (ef

f. Fe b. 1, 1994). L ike the trial court, then, we will consider Nelson-Knox’s aff idavit–which, as we will ex plain, was ove rkill any way

. ¶ 64 Even if Nelson-Knox’s aff idavit w ere disreg arde d, the absenc e of aff idavits is not fatal
to a postconviction petition if the petition finds sup p o rt i n the rec ord. 725 I L CS 5/122-2 (West 2010) (“a ffidavits, rec ords, or other evidenc e”)

. As we will discuss, the rec ord alone makes de fenda

nt’s rema ining two c laims arguable, namely , the claim that Rueter r ender ed ineffe ctive assistance b y enter ing into the stipulation and the claim that the State violated Bradyby failingto make a pr etrial disclosure of the c omminglingof the substanc es.

¶ 65 2. The Eleme nts of Stri ckland ¶ 66 T h e p o s t co n v i ct i o n petition alleg es that Rueter rende red ineffe ctive ass i s t an ce b y stipulating that People’s exhibi t No. 2 was 926 g rams of coca ine, a stipulation that defe ndant critici z es as unwar

rante d and ill-advised, considering that Dailey had commingle d the
conten t s of the 15 bag s into 1 bag befor e sending it to the crime labora tory for chemica l analy sis, makingsepar ate a naly ses of e ach of

the 15 substances imposs ible. In response to that allegation, the trial court observe d: “The Def endant does not prese nt any evidenc e or sug g estion that he could have adduc ed evide nce tha t is outsi de the recor d indicatingeither
t h at C ra v en s would not have testified at trial or that his testimony would have been any differ ent from the stipulation.” ¶ 67 But is that the evidence defenda nt had to addu ce t o arguably show “pre judice” w ithin the meaning of Strickland? Acc ording to Strickland
, “[t] he defe ndant must show that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result o f t h e proce edingwould have been dif fer ent.” Strickland , 466 U.S. at 694. “[T] his standard doe s not require a defenda

nt to demonstrate that counsel’s conduct m ore likely than n o t altere d the outcome in the case .” People v. Patterson
, 192 I ll. 2d 93, 122 (2000) (citing Strickland
, 466 U.S. at 693). “Instead, a rea sonable probability ‘is a probability sufficie nt to undermine confide nce in the outcome.’ ” Patterson
, 192 I ll. 2d at 122 (quoting Strickland
, 466 U.S. at 694). The question, for purposes of “pre jud i ce , ” i s n o t whether the outcome “ would have been differ ent” (empha sis in orig inal) ( Patterson
, 192 I ll. 2d at 123); rathe r, the question is whether the defic ient perf ormanc e was “so serious as to deprive the defe ndant of a fair trial, a trial whose result is reliable.” Strickland , 466 U.S. at 687.

-13-¶ 68 Under this standard of what constitutes “pre judice,” defe ndant would not have to pr ove that, had Rueter ref

used t o enter into the s tipulation and h ad t he S tate consequently called Cravens to the stand, Cravens actua lly would have g iven testimony less favor able to the State than the stipulat i o n

– alt hough, arguably
, defe ndant has adduce d such evidenc e throug h Nelson-Knox’s aff

idavit, in which she aver s that Cravens told he r he never tested People’s exhibi t No. 2 for purity

. (Ag ain, Nelson-Knox explained the lack of an aff idavit from Cravens himself by stating t h at h e never responded to her requests for a further int ervie w. See 725 I L CS 5/ 122-2 (West 2010) (“ or shall state why the same a

re not attached” ).) ¶ 69 Apar

t from Nelson-Kno x ’s af fi d av i t , t h e rec ord alone sug g ests that the stipulation

resc ued the State from a potentially serious problem, considering that, first, the weig ht of the substance c ontaining a controlled subst ance was a n element the State ha d to prove be y ond

a rea sonable doubt ( Coleman
, 391 I ll. App. 3d at 971; People v. Coleman
, 301 I ll. App. 3d 37, 44 (1 9 9 8 )) and, second, acc ording to case law, it is nece ssary to subject eac h bag of powder to chemica l an aly sis in order to prove, beyond a rea sonable doubt, that eac h bag contains a controlled substance. I f there are sever al bag s of powder
, chemica lly analy zing the contents of only

one bagdoes not prove, be y ond a re asonable doubt, that eac h of the other bag s contains a controlled substance. People v. Jones
, 174 I ll. 2d 427, 429-30 (1996); People

v. Y oung , 220 I ll. App. 3d 488, 497-98 (1991); People v. Hill
, 169 I ll. App. 3d 901, 911 (1988); People v . Ayala , 96 I ll. App. 3d 880, 882-83 (1981). Obviously , it is i mpossible to
separ ately analy

ze the contents of eac h bag afte r the contents of the bag s have b ee n commingle d. At that juncture, a mere positive result would shed no light on the question of which of the bag s had conta ined coc aine. ¶ 70 May

be, howeve r, at trial, t h e t ri al co u rt wo u l d have g rante d the State a rec ess long
enoug h that Cravens could take People’s exhibi t No. 2 back to the laboratory and test it f or purity

. And may

be this additional tes t i n g wo u l d have reve aled such a high perc entag e of purity that Cravens could ex t ra p o l at e backw ard and opine that it was mathematica lly impossibl e for any of the 15 bag s to lack coca ine. (F or example, if the commingle d substance, 926 g rams, wer e 100% pure, all 1 5 b ags h ad t o contain coca ine beca use of the absenc e of any impurity

. I f the 926 g rams wer e 90% pure, they would include 92.6 g rams of

a substance that was not coca ine, and there fore it would be possible that one of the 63- or 64-
g ram bag s lacke d coca ine. I f the 926 g rams wer e 80% pure, they would include 185.2 g rams of a substance that was not c ocaine
, and there fore it would be possible that two of the bag s lacke d coca ine–and so forth.) And may be the jury would have been convince d by this

unscrambling of eg g s. “May be” does not make a “re liable” trial ( Strickland
, 466 U.S. at 687) or inspire “ confide nce” in its out come ( id. at 694). ¶ 71 An err oneous stipulation by defe nse counsel can amount to ineffe ctive assist an ce

. For example, in Coleman
, 301 I ll. App. 3d at 41 (a differ ent Coleman than defe ndant in the
prese nt case ), t rial counsel stipulated that the contents of the bag s that police office rs had seized from the de fenda

nt had tested “ ‘positive for he roin in the amount of 70.2 g rams.’ ” In actua lity
, howeve r, a laboratory repor t “indicate d a positive test for slightly more than 15
g rams of he roin.” Id. at 44. B eca use trial counse l “stipulated to a n amount more than what

was actua lly tested” and beca use, in the bench trial, the trial court relied on that stipulation
to find the defe ndant guilty of possessing more than 15 g rams of heroin, the appellate court

-14-found both elements of Strickland to be proved, defic ient perf ormanc e as well as prejudice

. Id. at 47. ¶ 72 We need not, an d s h o u l d n o t , d ef i nitively resolve the question of whether Rueter rende red ineffe ctive assistance

. See Tate
, 2012 I L 112214, ¶ 2 6

. Suffice it to say that defe ndant’s claim of ineffe ctive assistance is “ar guable” (see id. ¶ 20; Hodges
, 234 I ll. 2d at 12-13); it is not “fr ivolous” or “pate ntly without merit.” 725 I L CS 5/122-2.1(a) (2) (West 2010).

¶ 73 D. The BradyClaim ¶ 74 Under Brady , due proc ess re quires the State to disc lose evidenc e that is both favora ble
to the acc used and “mater ial” to either guilt or punishment. People v. Harris
, 206 I ll. 2d 293, 311 (2002). The standard of “mater iality ” for purposes of Brady is identical to the standard of “pre judice” for purposes of ineffe ctive assistance : “[e]vidence is m aterial if there is a

rea sonable probability that, had the evidenc e been disclosed to the defe nse, the result of the
proce eding would have been differ ent.” Id. “Disclosure by the g overnme nt [of Brady evidenc e] must be made at such a time as to allow the defe nse to use the favor able materia l eff ectively in the prepa

ration and prese ntation of its case ***.” United States v. Pollack
, 534 F.2d 964, 973 ( D.C. Cir. 1976). ¶ 75 That Dailey commingle d the contents of the 15 bag s i n t o 1 b ag b ef o re s en d ing the
contents to the crime laboratory for an al y sis is, arguably
, evidenc e materia l to guilt or punishment, for the rea sons we have discussed. Acc ording to defe ndant’s aff idavit, the State

never informed the defe nse of this c ommingling befor e Rueter enter ed into the stipulation. The rec ord does not appea r to contra dict defe ndant in this respe ct; indeed, in the trial
transcr ipt, both attorney s seem to speak of the commingling as a surprise to the defe nse. Our discussion of “pre

judice” in connec tion with i n ef fective assistance applies equally to the Brady claim. There fore
, the postconviction petition raises an arguable violation of due
proce ss alongwith the arguable c laim of ineff ective a ssistance.

¶ 76 I I I . CONCLUSI ON ¶ 77 For the fore g oing rea sons, we reve rse the trial court’s judgme nt and rema nd this case for further postconviction proce eding s.

¶ 78 Reverse d and re manded.

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