2020 IL App (1st) 171098-U 

 THIRD DIVISION

 December 23, 2020 

No. 1-17-1098 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

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

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of 

 Respondent-Appellee, ) Cook County 

 ) 

 v. ) 07 CR 24440 (01) 

) 

JAMES HALE, ) Honorable 

) Allen F. Murphy, 

Petitioner-Appellant. ) Judge Presiding 

_____________________________________________________________________________ 

JUSTICE ELLIS delivered the judgment of the court. 

Justices McBride and Burke concurred in the judgment. 

ORDER

¶ 1 Held: Reversed and remanded. Petitioner stated gist of claim for ineffective 

assistance of counsel at first stage of postconviction proceedings.

¶ 2 Petitioner, James Hale, pleaded guilty to one count of first-degree murder. In 2017, he 

filed a postconviction petition claiming actual innocence, ineffective assistance of counsel, and

“suppression of evidence.” At first-stage review, the circuit court dismissed the petition as 

frivolous and patently without merit. On appeal, petitioner argues that his claim of ineffective 

assistance of counsel was sufficient to survive first-stage review. 

¶ 3 We agree. Though not a model of draftsmanship, taken as true, the postconviction 

petition stated the gist of a claim of ineffective assistance of counsel—specifically, that 
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petitioner’s trial counsel failed to investigate an alibi witness whose testimony would have 

exonerated petitioner, despite petitioner having given counsel the name of the alibi witness and 

his contact information, and thus petitioner’s guilty plea was not voluntarily and intelligently 

made. We reverse the trial court’s judgment and remand for second-stage proceedings. 

¶ 4 BACKGROUND

¶ 5 The underlying crime involves the November 3, 2005 murder of Shantiel Clark. Shantiel 

was killed by gunshots fired into a Chevy Lumina in which she was a passenger—shots that were 

fired by multiple individuals from an SUV that pulled up alongside the Lumina on south Pulaski 

Avenue in Chicago, at around 10:00 to 10:30 pm. 

¶ 6 Because petitioner’s prosecution ended in a pretrial plea, we have no trial transcript from 

which to draw the facts. We have the prosecution’s factual basis for the plea, of course, which, in 

fairness to the State, hits only the highlights of the State’s proof. Fortunately, we have more 

information from other sources.

¶ 7 First, petitioner attached to his postconviction petition an unpublished order of this Court 

in the matter of People v. Garrett, 405 Ill. App. 3d 1197 (Table), No. 1-08-2309 (unpublished 

order under Supreme Court Rule 23) (December 15, 2010). That decision involved the 

prosecution of another person likewise convicted of Shantiel’s murder, Tony Garrett. It is worth 

noting at the outset that this court reversed Tony Garrett’s conviction and remanded for a new 

trial, based on trial errors in a case where we deemed the evidence “closely balanced” in part 

“[b]ecause of the unreliability of the State’s witnesses.” Id. at 16. (As we will see, those same 

witnesses were part of the State’s factual basis for the guilty plea in petitioner’s case.)
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¶ 8 Second, we source another appellate opinion, this one involving petitioner’s case, where 

the State took a pretrial, interlocutory appeal after the trial court ruled that certain other-crimes 

evidence was inadmissible at petitioner’s trial. See People v. Hale, 2012 IL App (1st) 103537.1

¶ 9 I. Background Leading to Petitioner’s Charge

¶ 10 That said, we start by restating the basic facts: Shantiel was in the back seat of a Chevy 

Lumina, one of three occupants in that vehicle, headed south on Pulaski Avenue on November 3, 

2005, when an SUV pulled up alongside the Lumina, and several occupants of the SUV opened 

fire. Shantiel, who was pregnant at the time, was struck and died from the gunshot wounds.

¶ 11 Over the next two years, several people were charged with the murder. 

¶ 12 The driver of the Lumina, William Jackson, initially identified three men as the shooters: 

Tony Garrett as the driver, and two occupants, Donyall Garrett and Myron Orr. Tony and 

Donyall Garrett were arrested and charged the next day. But Orr was never charged because he 

had an airtight alibi: “he was in jail in Iowa at the time of the shooting.” Garrett, No. 1-08-2309, 

at 2. And prosecutors later dropped the charges against Donyall Garrett. Id. at 3, 15. 

¶ 13 William Jackson later recanted his identification of Tony Garrett in two different 

affidavits and in a statement he made to Tony’s then-lawyer. Nevertheless, Jackson testified at 

Tony Garrett’s trial that Tony was the driver of the SUV involved in the shooting. Id. at 3. He 

testified that, while he initially identified the other two individuals, “later he realized Donyall 

was not there, just as he later realized he had mistakenly identified Orr.” Id.

1 Our opinion in Hale, 2012 IL App (1st) 103537, ¶ 3, refers to the murder of Shantiel as occurring 

on November 11, 2005, but it is clear from the indictment in this case, the State’s factual basis for 

petitioner’s guilty plea, and our unpublished order in Garrett, that the crime actually happened on 

November 3, 2005. This is important to keep in mind because the alibi affidavits we will discuss later are 

based on the date of November 3.
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¶ 14 The third passenger in the Lumina was Michael Smith. At Garrett’s trial, Smith “testified 

that he, too, saw Tony [Garrett] driving the SUV, and Smith also saw Donyall [Garrett] in the 

SUV.” Id. at 4. As we later noted, however, Smith “had a very limited opportunity to see the 

shooter before he ducked in the car.” Id. at 16.

¶ 15 But Michael Smith is relevant for another reason, too—there was an attempt on his life 

because he implicated Tony Garrett in Shantiel’s murder. In fact, the State also charged Tony 

Garrett, in that same trial, with attempting to murder Smith. (And as we will see, in its factual 

basis for petitioner’s guilty plea in our matter, the State claimed that petitioner was part of that 

plot, too.)

¶ 16 The third primary witness against Tony Garrett was an individual named Keyonte 

McDowell, an informant who “came forward and provided more details about Shantiel’s 

shooting.” Hale, 2012 IL App (1st) 103537, ¶ 5. (As we will see, Keyonte McDowell was the 

first and only eyewitness to implicate petitioner, along with another man named Randy Rice, in 

Shantiel’s murder.) 

¶ 17 We described McDowell’s testimony, as it related to Shantiel’s murder, as follows:

“Keyonte McDowell testified that after 11 p.m. on November 3, 2005, about an 

hour after the murder, he saw Tony [Garrett], Donyall [Garrett], [petitioner] and another 

man get out of a white Cadillac. The four men went to [petitioner]’s home. McDowell 

went over to [petitioner’s] home to find out what happened. He saw Tony sitting with a 

.40 caliber gun in his lap. A .9 millimeter gun and a third gun lay on a table. Tony said, 

‘damn, *** she was messed up.’ Tony added that he ‘ain't know it was a girl,’ and he 

‘thought it was Mario inside the car.’ Tony said that once he saw [William] Jackson in 

the car, he told everyone to stop shooting.” Garrett, No. 1-08-2309, at 2. 
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¶ 18 McDowell also testified that he was part of a group, with petitioner and Donyall Garrett, 

that later tried to murder Michael Smith for implicating Tony in Shantiel’s murder. Id. at 2-3.

¶ 19 McDowell testified pursuant to a plea agreement that we described as follows:

“Prosecutors agreed to reduce one attempted murder charge against McDowell to 

aggravated battery, and they recommended a sentence of two years’ probation in 

exchange for his guilty plea and his testimony against Tony. The State helped McDowell 

move by giving him rent money, and the State also gave McDowell money for food and 

clothing. The State’s payments to McDowell totaled about $800. Prosecutors also 

dropped a charge against McDowell for violating his probation, and they never charged 

him for his failed attempt to kill Smith.” Id. at 5.

¶ 20 In reviewing various trial errors for plain error, we concluded that the evidence against 

Tony Garrett was closely balanced. Id. at 16. We noted that, while both William Jackson and 

Michael Smith identified Garrett as the driver of the SUV and one of the shooters, the witnesses 

“gave the jurors some reason to doubt the identifications,” most notably Jackson’s varying and 

contradictory identifications and recantations. Id. at 15-16. We noted that McDowell’s testimony 

included an admission by Tony Garrett that he shot Shantiel, in a case of mistaken identity, but 

we also wrote that “jurors could doubt McDowell’s testimony because the State bought that 

testimony at such a high price.” Id. at 16. And “[t]he fact that the State charged neither 

McDowell nor Donyall with attempting to murder Smith could indicate to a juror that 

prosecutors, too, found McDowell’s testimony not entirely reliable.” In sum, we determined, 

“[b]ecause of the unreliability of the State’s witnesses, the lack of physical evidence, and the 

contradiction of most of the evidence by defense witnesses, we find the evidence in this case 

closely balanced.” Id.
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¶ 21 II. Charges Against Petitioner

¶ 22 Based on the information provided by Keyonte McDowell, petitioner, along with Randy 

Rice, was arrested for Shantiel’s murder. Hale, 2012 IL App (1st) 103537, ¶ 5. “[Petitioner] and 

Rice each gave a detailed confession.” Id.

¶ 23 Petitioner told the police that a man named Mario had previously robbed and attacked 

Tony Garrett. On the night of November 3, Tony gathered petitioner and Rice to seek retaliation 

against Mario. Id. “As they were driving southbound on Pulaski Road, they spotted William’s 

car, which they thought contained Mario. [Petitioner] stated that several people from Tony’s car 

began to shoot at William’s car, but his gun jammed. [Petitioner] stated that after the shooting, 

Tony drove away.” Id.

¶ 24 Before trial, petitioner moved to suppress that statement; the trial court denied that 

motion. The trial court also denied the State’s motion to admit other-crimes evidence, namely 

two alleged acts of petitioner: (1) attempted murder of another individual only an hour or so 

before Shantiel’s murder and (2) the attempted murder of Michael Smith for implicating Tony 

Garrett in Shantiel’s murder. The State took an interlocutory appeal of the trial court’s ruling, 

and we reversed in a 2-1 decision, holding that the other-crimes evidence should be admitted at 

petitioner’s trial. Id. ¶ 36. 

¶ 25 III. Petitioner’s Plea

¶ 26 After his failed motion to suppress and his defeat on appeal regarding the other-crimes 

evidence, petitioner pleaded guilty to one count of murder and received a sentence of 30 years in 

prison. His plea was entered on January 16, 2014.

¶ 27 The State recited the following factual basis for the plea: First, Michael Smith and 

William Jackson would have testified that they were driving in the Lumina with Shantiel on 
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November 3, 2005, when an SUV pulled up alongside their car and the occupants opened fire. 

Shantiel was hit with gunfire and died from her wounds.

¶ 28 Second, Keyonte McDowell would have testified that on the evening in question, he was 

at the house of one of petitioner’s relatives. Petitioner, Randy Rice, Tony Garrett, and other 

individuals were present. McDowell saw Rice and petitioner with guns and heard them mention 

a shooting that had occurred on Pulaski Avenue. 

¶ 29 Third, in terms of other-crimes evidence, McDowell would testify that Tony Garrett 

asked McDowell and Donyallto shoot Michael Smith. They agreed and got a gun. Petitioner 

drove McDowell and his brother to Chicago Heights to find Smith. McDowell and his brother 

approached Michael and produced a firearm, but when an officer drove by, everyone fled. 

¶ 30 Finally, Officer Fred Nowaczyk would have testified that, after being Mirandized, 

petitioner made statements implicating himself, Garrett, and Rice in the shooting of the car 

containing Shantiel.

¶ 31 IV. Postconviction Petition

¶ 32 Three years after his guilty plea, petitioner filed this postconviction petition. The petition 

raises three claims: actual innocence, “suppression of evidence,” and ineffective assistance of 

counsel. Though the petition was dismissed in its entirety, petitioner only challenges the 

dismissal of the ineffectiveness claim on appeal. We thus limit ourselves to a consideration of 

that claim.

¶ 33 In sum, the relevant portion of the postconviction petition alleges that petitioner did not 

shoot Shantiel, nor was he present for the shooting; he was asked to join the individuals who 

went out that night to shoot a rival gang member, but he refused to go; they threatened his life for 

refusing to go; he fled out of fear for his life; he and another individual hid at his house for the 
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remainder of that night; he gave his defense lawyer the name and contact information for his 

alibi witness; but his lawyer failed to investigate the alibi or contact the witness. As a result, the 

petition alleges, petitioner pleaded guilty to a crime he did not commit.

¶ 34 More specifically, the postconviction petition contained five affidavits, two from 

petitioner. In the first of those two, petitioner merely swore to the truth of the statements made in 

the petition itself. There were four substantive affidavits.

¶ 35 One affidavit came from Tony Garrett. He swore that, on November 3, 2005 around 7:30 

p.m., he and petitioner were held at gunpoint by Keyonte McDowell, James Cozzi, and Lavell 

Word. These individuals wanted petitioner and Garrett to go with them to shoot a member of a 

rival drug gang. When petitioner refused to go, McDowell told Word to take petitioner 

somewhere and kill him, after which they would blame the shooting on petitioner. Word took 

petitioner out of sight at gunpoint. Around 10:30 p.m., Garrett drove Cozzi, Word, and 

McDowell to 147th and Pulaski in Garrett’s car, all the while with McDowell holding a gun on 

him. Cozzi, McDowell, and Word fired the shots into William Jackson’s car that killed Shantiel. 

Afterward, McDowell told all of them to blame the incident on petitioner. 

¶ 36 Petitioner swore in his substantive affidavit that he was actually innocent of the shooting 

of Shantiel, and that he only made statements to the police, and later pleaded guilty, out of fear 

of gang retaliation. In November 2016, while they were both incarcerated, Tony Garrett confided 

in him that there was a plan by Keyonte McDowell to pin Shantiel’s murder on him petitioner. 

He stated that he could not have discovered this information sooner because of the fear of gang 

retaliation. 

¶ 37 Darryl Lipscomb’s affidavit stated that, on November 3, 2005 around 8:00 p.m., he saw 

petitioner run out the front door of a home at 13920 S. Grace in Robbins, IL. Petitioner crossed 
No. 1-17-1098 

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the street and asked Lipscomb to hide him because there were men trying to kill him. Lipscomb 

saw that petitioner was frightened and took petitioner back to petitioner’s house at 21820 S. 

Peterson Ave in Sauk Village. Lipscomb and petitioner stayed there until 11:00 p.m. (Recall that 

Shantiel was shot somewhere around 10:00 to 10:30 pm.) 

¶ 38 The final affidavit attached to the post-conviction petition was from a paralegal 

investigator named Eugene Horton, who stated that he investigated the case from September 

2016 to January 2017, that he had discovered new evidence, and that the other affiants had been 

afraid to come forward due to a threat of gang retaliation.

¶ 39 Those are the affidavits. In the petition itself, handwritten in all caps, petitioner made 

several claims regarding ineffective assistance of counsel. On appeal, he focuses on this one: 

“Defense counsel failed to investigate his alibi defense, despite defendant informing defense 

counsel of the alibi witness address, name and phone number.” The ineffectiveness portion of the 

petition concludes: 

“But for counsel’s failure, the factual statement of the guilty plea was insufficient, 

misleading and false; a defense worthy of a judge or jury consideration was concealed; 

the plea was involuntary because of wrongful inducement by the state; and, a different 

result at trial would have occured [sic].”

¶ 40 During first-stage review, the circuit court dismissed the petition. It found that “[i]n his 

application for post-conviction relief [petitioner] alleges a claim of actual innocence but his 

affidavit does not support that claim. It it [sic] is an alibi. Furthermore, it is a plea of guilty. For 

those reasons I find that the petition is frivolous and without merit.” The court did not address 

the ineffectiveness claim (or the “suppression of evidence” claim) and dismissed the petition.

¶ 41 Petitioner timely appeals.
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¶ 42 ANALYSIS

¶ 43 On appeal, petitioner argues the circuit erred when it dismissed his petition at the first 

stage because he has sufficiently alleged a claim for ineffective assistance of counsel. He does 

not make arguments with respect to the other two claims. We review the summary dismissal of a 

postconviction petition de novo. People v. Tate, 2012 IL 112214, ¶ 10.

¶ 44 The Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. (Act) provides a process for 

criminal defendants to challenge their convictions due to a substantial denial of their 

constitutional rights. People v. Hodges, 234 Ill. 2d 1, 9 (2009). This process is separated into 

three distinct stages. People v. Clark, 2011 IL App (2d) 100188, ¶ 15. During the first stage, the 

circuit court reviews the petition to determine whether it is frivolous or patently without merit. 

Id.; 725 ILCS 5/122-2.1(a)(2) (West 2016).

¶ 45 A petition is frivolous or patently without merit “only if the petition has no arguable basis 

either in law or in fact.” Hodges, 234 Ill. 2d at 16. A petition lacks an arguable basis in law or 

fact if it is based on “an indisputably meritless legal theory or a fanciful factual allegation.” Id.

“Meritless legal theories include ones completely contradicted by the record, while fanciful 

factual allegations may be ‘fantastic or delusional.’ ” People v. Allen, 2015 IL 113135, ¶ 25. At 

the first stage, the court must accept the factual allegations of the petition as true and construe 

them liberally, drawing all reasonable inferences in favor of the petitioner. Id. 

¶ 46 A postconviction claim of ineffective assistance of counsel is governed by the principles 

established in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Brown, 2017 IL 

121681, ¶ 25. A defendant must establish that his counsel’s performance fell below an objective 

standard of reasonableness and that he was prejudiced by counsel’s deficient performance. Id. As 

with other first-stage petitions, one claiming ineffective assistance is judged by the lower first-
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stage pleading standard. Tate, 2012 IL 112214, ¶ 20. An ineffective assistance petition may not 

be dismissed “ ‘if (i) it arguable that counsel’s performance fell below an objective standard of 

reasonableness and (ii) it is arguable that the defendant was prejudiced.’ ” (Emphasis in 

original.) Id. ¶ 19 (quoting Hodges, 234 Ill. 2d at 17).

¶ 47 We begin with the claim of deficient performance. In the context of a guilty plea, an 

attorney’s conduct is deficient if the attorney fails to ensure that the defendant’s guilty plea was 

voluntary and intelligent. People v. Hall, 217 Ill. 2d 324, 335 (2005); People v. Rissley, 206 Ill. 

2d 403, 457 (2003). As a general rule, an attorney’s decisions to call witnesses are trial strategy 

and do not support a claim of ineffective assistance. See Clark, 2011 IL App (2d) 100188, ¶ 25. 

¶ 48 But “[t]rial counsel has a professional duty to conduct ‘reasonable investigations or to 

make a reasonable decision that makes particular investigations unnecessary.’ ” People v. 

Domagala, 2013 IL 113688, ¶ 38 (quoting Strickland, 466 U.S. at 691). And when “counsel had 

reason to know, from an objective standpoint, that a possible defense *** was available, failure 

to investigate fully can constitute ineffective assistance of counsel.” (Internal quotation marks 

omitted.) Id. “In particular, ‘the failure to interview witnesses may indicate incompetence when 

trial counsel knows of the witness and their testimony may be exonerating.’ ” Clark, 2011 IL 

App (2d) 100188, ¶ 26 (quoting People v. Bell, 152 Ill. App. 3d 1007, 1012 (1987)).

¶ 49 Here, the petition includes an affidavit of Lipscomb, an alibi witness. Lipscomb swore 

that he saw petitioner running from a home, in fear of his life, and that Lipscomb and petitioner 

hid at petitioner’s house until a time of the evening that would have made it impossible for 

petitioner to have been part of the shooting that killed Shantiel. And petitioner swore that he 

gave the contact information of Lipscomb to his attorney before trial, but his attorney failed to 
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follow up on that lead. Taken as true, as it must be at this stage, these allegations easily show the 

gist of a claim of deficient performance.

¶ 50 Petitioner cites People v. Clark, 2011 IL App (2d) 100188, ¶ 5, where Clark pleaded 

guilty to attempted murder for stabbing his girlfriend multiple times. He filed a postconviction 

petition claiming, among other things, “that his counsel was ineffective because she coerced him 

to plead guilty under the false impression that there were no witnesses available to testify on his 

behalf” regarding the possible defense of insanity. Id. ¶ 8. In fact, his girlfriend had been willing 

to testify to his diminished capacity and even tried unsuccessfully to contact the petitioner’s 

defense attorney. Id. ¶ 9. The defense attorney “had Clark plead guilty under the belief that no 

witnesses were available, which was ‘false and misleading information to rely on in making his 

decision to plead guilty.’” Id. The trial court dismissed the petition at the second stage. Id. ¶ 10.

¶ 51 We found these allegations sufficient to satisfy the higher second-stage standard for 

alleging deficient performance. That is, “Clark made a substantial showing that his counsel failed 

to investigate a witness who could have provided evidence that, as a result of mental disease, 

Clark lacked substantial capacity to appreciate the criminality of his conduct” and thus that 

“counsel was deficient in failing to investigate [Clark’s girlfriend] as a witness who could 

support an insanity defense.” Id. ¶ 28.

¶ 52 Our case is different in ways that both help and hurt petitioner’s claim. The allegations in 

Clark were a bit more on the nose, as the petition there alleged not only that counsel failed to 

investigate a helpful witness, but also that defense counsel pressured the petitioner to plead 

guilty on the false assumption that Clark had no witnesses to support an insanity defense. Here, 

the failure to investigate is plainly alleged, but petitioner does not come out and state that his 

lawyer did anything in particular to coerce his plea or cause him to plead guilty. 
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¶ 53 On the other hand, we found the petition in Clark at the second stage of proceedings, 

where the petitioner has the benefit of counsel and the correspondingly higher burden of 

“mak[ing] a substantial showing of a constitutional violation.” Hall, 217 Ill. 2d at 334. Here, in 

contrast, at the first stage, petitioner need only show the “gist” of a claim—that his claims have 

an arguable basis in law and fact, claims that are neither meritless nor delusional. Hodges, 234 

Ill. 2d at 16; Allen, 2015 IL 113135, ¶ 25. 

¶ 54 Whatever we may say about this petition drafted by a pro se prisoner, we cannot say that 

its allegations of deficient performance are meritless or delusional, or that they lack any basis in 

law or fact. The petition, to be sure, does not dot every “i” and cross every “t.” The allegations 

are almost sufficient on their own to state a claim for deficient performance, but not quite. 

¶ 55 That is to say, the petition more than sufficiently alleges (1) the existence of an alibi 

witness; (2) that petitioner told his lawyer about that witness, down to his name and contact 

information; and (3) that his lawyer never followed up on the matter. What the petition does not

allege is how counsel’s failure led to petitioner not voluntarily and intelligently entering his plea 

of guilty—which as we have said, ultimately is the point of a Strickland claim in the context of a 

guilty plea. See Hall, 217 Ill. 2d at 335 (“An attorney’s conduct is deficient if the attorney failed 

to ensure that the defendant's guilty plea was entered voluntarily and intelligently.”).

¶ 56 For example, did the lawyer tell petitioner that the alibi defense was a non-starter? Did 

the lawyer tell petitioner that he wouldn’t investigate that lead? Was there something else about 

counsel’s failure that led petitioner to lose hope and plead guilty to a crime he did not commit? 

We typically require some such allegation before advancing a petition, at least beyond the 

second stage. See, e.g., Clark, 2011 IL App (2d) 100188, ¶ 8 (allegation that defense counsel 

coerced petitioner to plead guilty, claiming incorrectly that petitioner had no supporting 
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witnesses, stated claim for deficient performance at second stage); Hall, 217 Ill. 2d at 335 

(counsel’s erroneous legal advice, that petitioner had no defense based on lack of knowledge and 

thus should plead guilty, when in fact petitioner had valid defense of lack of knowledge, 

“establishe[d] a substantial showing that his attorney’s advice was objectively unreasonable” at 

second-stage postconviction proceedings). 

¶ 57 The most we have here is the petition’s allegation that “[b]ut for counsel’s failure, *** a 

defense worthy of a judge or jury consideration was concealed ***.” That may get in the 

ballpark, but it is not enough. Ultimately, petitioner would have to make some allegation tying 

his attorney’s deficiency to a claim that he did not voluntarily and intelligently plead guilty. 

¶ 58 Still, that is not a basis for dismissal at the first stage. The first stage is set up in 

recognition that most petitions are drafted by prisoners without legal training, and thus the 

standard is necessarily low. See Allen, 2015 IL 113135, ¶ 24 (“Most postconviction petitions are 

drafted by pro se defendants, and accordingly, the threshold for a petition to survive the first 

stage of review is low.”); accord Hodges, 234 Ill. 2d at 9. The first stage is to weed out claims 

that have no chance—that are frivolous or obviously meritless. This petition’s claims of deficient 

performance are not perfect, but they are clearly not frivolous.

¶ 59 The State challenges the sufficiency of the allegations of an alibi, not because the 

Lipscomb affidavit was insufficient but because petitioner’s affidavit did not corroborate it: 

“[D]efendant, himself, has failed to specify what his alibi actually is. Nowhere in his postconviction petition, or in his own affidavit, does defendant provide any specific details about his 

whereabouts before, during or after the instant offense. Thus, it is not clear if Lipscomb’s 

potential testimony was consistent with defendant’s own version of events.” 
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¶ 60 We reject that argument. If the allegations in the Lipscomb affidavit are taken as true, as 

they must be, petitioner had a valid alibi defense. We are aware of no requirement in the law that 

petitioner’s affidavit repeat or corroborate those allegations, and the State cites to none. We 

would add, though it is not required, that the petition, itself, states that petitioner told his lawyer 

about an alibi witness and cited to Lipscomb’s affidavit, and statements in the petition were

verified by a separate affidavit signed by petitioner. So even if petitioner did not himself spell 

out the details of the alibi, he incorporated them by reference. That is more than what is required. 

¶ 61 Beyond that argument, the State takes a different tack, claiming that the allegations are 

contradicted by the record. It is true, as we mentioned above, that a legal theory may be deemed 

without merit at the first stage if the record positively rebuts the claim. See Allen, 2015 IL 

113135, ¶ 25 (“Meritless legal theories include ones completely contradicted by the record”). In 

several ways, says the State, the record contradicts petitioner’s claim of deficient performance.

¶ 62 For one, the State points to the portion of the record where petitioner pleaded guilty and 

confirmed that he was doing so without any threats or coercion:

“THE COURT: Has anyone threatened you or promised you anything other than this 

agreement to get you to plea guilty today? 

MR. HALE: No.

THE COURT: Are you pleading guilty of your own free will? 

MR. HALE: Yes.”

¶ 63 It is true that petitioner was properly admonished and indicated that he was not coerced 

or threatened. That was also true in Clark, 2011 IL App (2d) 100188, ¶ 6, where the court asked, 

and defendant affirmed, three times that his plea was voluntary. It was also true in Hall, 217 Ill. 

2d at 327-28, where the petitioner twice told the court he was pleading guilty of his own free 
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will. In each of those cases, the court nevertheless reversed the dismissal and ordered the cause 

advanced to a third-stage hearing. Nor, for that matter, do we think it automatically follows that 

petitioner, having made the decision to plead guilty, would not accept responsibility for that 

decision and state that he was making it of his own free will—even if the reason he did so was 

that his lawyer gave him faulty or discouraging legal advice regarding the alibi defense. The 

colloquy above and the allegations of deficient performance are not necessarily antithetical. 

¶ 64 The State likewise notes that petitioner never complained to the trial court that his lawyer 

was failing to do his job properly. Also true; the record reveals no such complaint. That would be 

a fine response to petitioner at a third-stage hearing, where issues of credibility may be raised, 

but by no means is petitioner’s silence in front of the judge a complete rebuttal of his current 

claim, which we take as true, that his lawyer fell down on the job, nor has the State cited any 

case law for that proposition. 

¶ 65 Finally, the State blames petitioner for his lawyer’s failure to investigate the alibi witness: 

The record, says the State, “indicates that defendant did not want his case to be continued any 

longer. To the contrary, defendant requested to ‘get it done today as opposed to delaying this any 

further.’ Thus, having explicitly expressed his desire to plead guilty ‘today’ without any further 

delay, defendant should not be allowed to come back to court several years later and claim that 

trial counsel was ineffective for failing to adequately investigate Lipscomb.”

¶ 66 In other words, though the petition alleges that petitioner pleaded guilty because counsel 

didn’t investigate his alibi, the State is saying that counsel didn’t investigate his alibi because 

petitioner pleaded guilty. But the State can’t possibly know that from a single remark by counsel 

(not petitioner). Petitioner had obviously made the weighty, consequential decision to plead 

guilty, to spend the next thirty years in prison. The mere fact that, once he had made that 
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decision, he wanted to get the hearing over with, is not nearly enough information for us to leap 

to the conclusion the State wishes. And that is to say nothing of the fact that the case, by the time 

of the guilty plea, had lingered for quite some time, including a substantial delay for 

interlocutory appellate review of the trial court’s ruling on the admissibility of other-crimes 

evidence. To ask us to conclude, from this record, that petitioner put such a rush on his lawyer 

that he didn’t have the chance to investigate the alibi defense, is not asking us to liberally 

construe this petition but to read it as strictly as possible against petitioner. 

¶ 67 Finally, the State asks us to consider the circumstances surrounding the guilty plea. For 

one, things had gone badly for petitioner up to that point: his motion to suppress his inculpatory 

statement to the police had been denied, and the appellate court had ruled that other-crimes 

evidence could be used against him. For another, in the State’s view, petitioner got a pretty good 

plea deal, as the minimum sentence for first-degree murder involving the use of a firearm is 

forty-five years in prison, but the State amended the charge to remove any reference to a firearm, 

thereby avoiding the mandatory 25-year enhancement, so the plea could be for thirty years.

¶ 68 The State has correctly laid out the factual circumstances and sentencing ranges 

surrounding petitioner’s guilty plea. But none of that “completely contradict[s]” (Allen, 2015 IL 

113135, ¶ 25) petitioner’s claim here that his lawyer failed to follow up on a viable defense, and

that is why, or at least one of the reasons why, he pleaded guilty. We will not prejudge that 

credibility determination at the first stage of proceedings.

¶ 69 For these reasons, the petition adequately alleged deficient performance.

¶ 70 A petitioner claiming a Strickland violation must also allege prejudice. Brown, 2017 IL 

121681, ¶ 25. In the context of a guilty plea, he must allege that, absent counsel’s alleged failure 

to investigate, defendant would have demanded a trial. Hall, 217 Ill. 2d at 335; Brown, 2017 IL 
No. 1-17-1098 

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121681, ¶ 26. But a bald assertion that the petitioner would have insisted on a trial, absent 

counsel’s deficient performance, is not enough. People v. Hughes, 2012 IL 112817, ¶ 65. Rather, 

the petitioner must allege why it would have been “ ‘rational under the circumstances’ ” to reject 

the plea agreement he accepted. Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). The 

petitioner, in other words, must assert either a claim of actual innocence or a plausible defense he 

could have raised at trial. Id. ¶ 64; Hall, 217 Ill. 2d at 335-36; Rissley, 206 Ill. 2d at 458-59.

¶ 71 The petition here alleges both. Petitioner swears in his own affidavit, as do two others in 

their affidavits, that petitioner was not part of the shooting of Shantiel. The petition also alleges a 

viable defense by way of the alibi witness’s testimony. Taking the allegations as true, the petition 

easily establishes a rational reason to reject the plea offer and insist on going to trial.

¶ 72 The petition thus adequately alleged a claim of ineffective assistance, at least sufficient to 

survive a first-stage dismissal. The judgment of the circuit court is reversed.

¶ 73 Finally, we take note that petitioner did not appeal the dismissal of his actual-innocence 

claim. We make no comment on the merits of that claim. We do note that our supreme court just 

recently decided the question of whether a defendant who pleads guilty may raise an actualinnocence claim, a question that had divided our appellate courts. Compare People v. Reed, 2019 

IL App (4th) 170090, ¶ 26 (guilty plea forecloses postconviction petition for actual innocence) 

with People v. Shaw, 2019 IL App (1st) 152994, ¶ 44 (petitioner who pleaded guilty may later 

file actual-innocence petition). Our supreme court has recently clarified that “defendants who 

plead guilty may assert an actual innocence claim” under the Post-Conviction Hearing Act. 

People v. Reed, 2020 IL 124940, ¶ 41.
No. 1-17-1098 

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¶ 74 Here, the trial court suggested that the claim of actual innocence—the only one of the 

three claims it addressed—was faulty because of petitioner’s guilty plea. The supreme court’s 

recent decision has obviously shown that reasoning to be incorrect.

¶ 75 CONCLUSION

¶ 76 The judgment of the circuit court is reversed. This cause is remanded to advance the 

petition for second-stage proceedings.

¶ 77 Reversed and remanded.