1 

2024 IL App (5th) 230348-U 

NO. 5-23-0348 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

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

 ) Circuit Court of

Plaintiff-Appellee, ) Vermilion County. 

 ) 

v. ) No. 12-CF-596 

 ) 

MELVIN TURNER, ) Honorable 

 ) Derek J. Girton, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________ 

PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.

Justices Cates and Moore concurred in the judgment.

 

 ORDER

¶ 1 Held: Where there is no arguable reason to reverse the circuit court’s finding that

 defendant failed to meet his burden of making a substantial showing of a

constitutional violation and order denying his postconviction petition after a thirdstage evidentiary hearing, we grant the defendant’s appointed appellate attorney

leave to withdraw as counsel and affirm the judgment of the circuit court. 

¶ 2 Defendant, Melvin Turner, is nearing completion of his concurrent 25-year prison 

sentences for home invasion and armed robbery. He now appeals from the circuit court’s order 

that denied his second amended postconviction petition following an evidentiary hearing.

Defendant’s appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), 

concluded this appeal does not present an issue of arguable merit, and on that basis, filed with this 

court a motion to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along 

with a memorandum of law in support thereof. This court gave defendant an opportunity to file a 

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).

NOTICE

Decision filed 06/05/24. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

pro se brief, memorandum, or other document explaining why OSAD should not be allowed to 

withdraw as counsel, or why this appeal has merit. Defendant has not taken advantage of that 

opportunity. This court has examined OSAD’s Finley motion and the accompanying memorandum 

of law, as well as the entire record on appeal, and agrees with OSAD that this appeal lacks merit. 

Accordingly, we grant OSAD leave to withdraw as counsel and affirm the judgment of the circuit 

court. 

¶ 3 I. BACKGROUND

¶ 4 Defendant was found guilty by a jury on three felony counts—home invasion (720 ILCS 

5/12-11(a)(2) (West 2010)), armed robbery (id. § 18-2(a)(2)), and criminal trespass to a residence

(id. § 19-4(a)(2)). The State’s evidence consisted of the testimonies of several witnesses, including 

the two victims, Bryson Newsome, and Evony Jackson.

¶ 5 Bryson Newsome testified that on Sunday evening, December 2, 2012, he was at his 

Danville, Illinois, residence that he shared with his girlfriend, Evony Jackson, and their three-yearold daughter. Newsome was playing video games in the living room, and Jackson and their 

daughter were in Jackson’s bedroom. Between 9 and 10 p.m., Newsome heard a knock at the back 

door and walked into the kitchen to answer it. When Newsome looked out the back door’s window, 

he saw two men. Newsome recognized one of the two men as defendant; he and Newsome had 

attended the same Danville schools for “years.” Newsome did not recognize the other man, who 

was “a dark man” facing away from the door and house. Because Newsome knew and recognized 

defendant, he unlocked and cracked open the door.

¶ 6 Newsome testified that defendant pushed open the door, and the defendant and the dark 

man stormed into the kitchen. The dark man struck Newsome in the left eye with a handgun. The 

two intruders took “$300 to $500” cash from Newsome’s pocket and “threw” him to the kitchen 
3 

floor. Newsome lay on his side, looking straight ahead. He could “see feet and hear voices,” but 

he could not see faces. At this time, Newsome saw three pairs of feet, not two. Newsome continued 

to lie on the floor, with the dark man pointing a gun at him. Newsome heard running through the 

house. Then, defendant walked back into the kitchen and said, “His girlfriend [sic] in the bedroom 

calling the police. Let’s go.” The three intruders departed through the back door. As they did, 

Newsome saw that the third intruder was “a light-skinned dude” whom he did not recognize. After 

the three intruders left, Newsome saw that a laptop computer and a PlayStation 3 were missing 

from the living room. According to Newsome, this entire incident lasted “two to three minutes, if 

that.” A minute later, the police arrived at the house. 

¶ 7 At that time, Newsome identified defendant as one of the robbers. According to Newsome,

he had bumped into defendant at a gas station in Danville, between 4 and 5 p.m. on the day of the 

robbery. Defendant asked Newsome for a ride, and Newsome provided it. Defendant and 

Newsome were together when Newsome bought some marijuana, and defendant surely saw the 

fairly large amount of cash that Newsome had in his possession at the time. Newsome, however, 

declined to give officers permission to search his car for defendant’s fingerprints. Newsome 

acknowledged that the police searched him at that time and found $2000 cash and cannabis in his 

pocket but stated that the $2000 was—at one point—in the bedroom with his girlfriend and 

daughter. Newsome also acknowledged that he had a 2007 conviction for possession of cannabis 

with intent to deliver.

¶ 8 On December 11, 2012, nine days after the robbery, Newsome met with police detective 

Dawn Hartshorn. She showed Newsome three different photo arrays, each consisting of photos of 

six different men, and he identified just one of the men—defendant—as one of the three robbers.

Newsome was sure that defendant was one of the robbers.
4 

¶ 9 Evony Jackson testified that on Sunday evening, December 2, 2012, she and her young 

daughter were at their Danville home. Newsome was also at the home. Jackson was in her 

bedroom, studying, as their daughter slept in the bed. Meanwhile, Newsome was in the living 

room, playing a video game. From her bedroom, Jackson heard a knock at the back door, and she 

saw Newsome stand up in the living room and walk toward the kitchen. Then, she heard someone 

say, “Get on the ground,” and heard Newsome say, “Take whatever you want.” Jackson quickly 

locked the door to her bedroom and immediately called 9-1-1. After a short while, she opened her 

bedroom door and saw “one person” walk into another bedroom of the house, turn on a light, and 

then walk away. Jackson saw the man’s face as he walked into the other bedroom, but she “wasn’t 

trying to look at extreme [sic] specific details.” Jackson also heard another person say, “Stay 

down,” and knew there was more than one intruder in the house. Still in her bedroom, Jackson 

heard one intruder say, in a loud voice, that the police had been called and that “they had to go.” 

The police arrived at the house. The robbers had taken Jackson’s new laptop computer and 

Newsome’s new PlayStation. 

¶ 10 That night, Jackson did not, and could not, identify any of the robbers. Jackson and 

Newsome decamped to Newsome’s grandmother’s house, due to Jackson’s fear that the robbers 

would return to her own house. That same night, Jackson and Newsome discussed the robbery. 

When Newsome told Jackson “who it was,” Jackson thought, “Oh, yeah, that’s him.” Jackson had 

attended school with defendant, starting in middle school and continuing through high school; they 

were not friends, but the schools in Danville were not large. A few years had passed since she had 

last seen defendant. In court, Jackson identified defendant as the intruder whom she saw walk into 

a bedroom near hers and turn on a light. She expressed complete confidence in her identification 

of the defendant. 
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¶ 11 On cross-examination, Jackson stated that she was also interviewed by Detective Hartshorn 

on December 11, 2012. Despite knowing defendant was involved based her conversation with 

Newsome, at that time Jackson told Detective Hartshorn that she was unable to identify any of the 

robbers. Jackson explained that she did not tell Detective Hartshorn that defendant was involved 

because she did not want any part of it and did not want to get in trouble at the nursing program

she attended. 

¶ 12 Prior to sentencing, defendant mailed the trial judge a hand-written letter that raised 

ineffective assistance of counsel claims. After a Krankel hearing, the court found that defendant 

failed to allege a credible claim that would have entitled him to the appointment of new counsel. 

The court then proceeded to a sentencing hearing. It found that the armed-robbery count and the 

criminal-trespass-to-residence count merged with the home-invasion count, and it sentenced 

defendant to 25 years in prison for home invasion.

¶ 13 Defendant appealed from the judgment of conviction. In his first direct appeal, the Illinois 

Fourth District Appellate Court reversed the trial court’s denial of defendant’s pro se ineffective

assistance of counsel claims and remanded with directions that the court (1) conduct an adequate 

Krankel hearing and (2) sentence defendant on his armed robbery conviction. People v. Turner, 

2015 IL App (4th) 130855-U, ¶ 43. 

¶ 14 On remand, the trial court appointed counsel to represent defendant at his second Krankel

hearing. At that hearing’s conclusion, the court found there was an insufficient basis to find that 

trial counsel provided ineffective assistance.

¶ 15 Thereafter, the court concluded that a new sentencing hearing was not required and

imposed a sentence of 25 years in prison for defendant’s armed robbery conviction and directed 

that it be served concurrently with his previously imposed 25-year sentence on home invasion. It 
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entered an amended sentencing order that, in addition to the sentences for home invasion and 

armed robbery convictions, also included a conviction and four-year concurrent sentence for 

criminal trespass to a residence.

¶ 16 Defendant again appealed to the Illinois Fourth District Appellate Court. The Fourth 

District affirmed the sentence for armed robbery, vacated the conviction for criminal trespass to 

residence, and directed that the sentencing order be modified to reflect 255 days of credit for time 

served. People v. Turner, 2016 IL App (4th) 160031-U, ¶ 27. 

¶ 17 On remand from the second direct appeal, the trial court entered a sentencing order that 

imposed a sentence of 25 years for home invasion and 25 years for armed robbery. It also reflected

255 days of credit for time served. 

¶ 18 In April 2017, defendant filed a pro se petition for postconviction relief. See 725 ILCS 

5/122-1 et seq. (West 2016). After more than 90 days elapsed without action from the circuit court, 

the court advanced the petition to the second stage of postconviction proceedings and appointed 

attorney Leon Parker as postconviction counsel for defendant. 

¶ 19 Many delays followed. In July 2020, postconviction counsel filed an amended petition. In 

July 2020, the State filed a motion to dismiss the amended petition. 

¶ 20 In November 2020, postconviction counsel filed a second amended petition. The second 

amended petition alleged (1) ineffective assistance of trial counsel, where counsel failed to 

investigate the defendant’s alibi, despite him providing her with the names of two alibi witnesses, 

Autumn Robinson and Chevron Smith, and that he had been the subject of a traffic stop by 

Indianapolis police on the day of the robbery; (2) deprivation of due process from the use of 

perjured testimony of Bryson Newsome who was “coerced” by trial prosecutor Charles Mockbee

into testifying that defendant was one of the intruders-robbers, even though Newsome had told 
7 

Mockbee that “he was not 100% sure” that defendant was involved; (3) ineffective assistance by 

appellate counsel who failed to raise the issue of ineffective assistance of trial counsel for failing 

to pursue defendant’s alibi defense; and (4) a claim of actual innocence, where witness Bryson 

Newsome was “coerced” by trial prosecutor Charles Mockbee into testifying that defendant was 

one of the intruders-robbers, even though Newsome had told Mockbee that “he was not 100% 

sure” that the defendant was involved and where witness Newsome convinced Jackson to testify 

against defendant. Attached to the second amended postconviction petition were, inter alia, sworn 

affidavits from Autumn Robinson and Bryson Newsome. Autumn Robinson, in her sworn 

affidavit, wrote that on December 18, 2012, Detective Hartshorn phoned her. Detective Hartshorn 

asked Robinson whether defendant had been in Indianapolis on December 2, 2012, and Robinson 

originally replied that she did not know whether he had been there or not because, at that time, she 

was not talking to defendant due to a domestic dispute. She also told Detective Hartshorn that it 

was possible that defendant was in Indianapolis with his cousin. After speaking with Detective 

Hartshorn, Robinson phoned defendant’s cousin in Indianapolis, Chevron Smith, and asked him 

whether defendant had been in Indianapolis around December 2. According to Robinson, Smith 

replied that defendant had been with him and other relatives, in Indianapolis, from November 29 

to December 4. When Robinson learned the seriousness of this whole matter, she tried to contact 

defendant’s attorney several times, and she instructed Smith to contact the attorney, but the 

attorney never responded to either one. Robinson expressed her understanding that she “should of 

[sic] been honest” with Detective Hartshorn from the start, “instead of being upset with [defendant] 

about our domestic dispute.”

¶ 21 Bryson Newsome, in his sworn affidavit, wrote that in July 2013, just prior to defendant’s 

trial for breaking into the house of Newsome’s then-girlfriend, Newsome spoke with the trial 
8 

prosecutor Mockbee. Newsome told Mockbee that although he told Detective Hartshorn that 

defendant was one of the three intruders-robbers, he was “not a [sic] 100% sure” due to his 

“smoking weed and drinking liquor all day even minutes before the knock on the door that led to 

[the] attack.” Nevertheless, prosecutor Mockbee “coerced” him into testifying against defendant, 

stating that he needed to convict defendant in order to “set an example for those who choose to 

live the street life” and explaining that convicting defendant would be “easy” because of his 

criminal background. “With that information,” Newsome agreed to testify against defendant and 

“even convinced [his] then girlfriend Evony Jackson to also testify against him.” Years after the 

trial, Newsome “felt that the truth needed to be known.” Therefore, Newsome “reached out” to 

defendant and his family, seeking forgiveness for his “false testimony” against defendant.

Newsome found out “later” that someone other than defendant had broken into and robbed his 

former girlfriend’s house. 

¶ 22 Postconviction counsel filed a certificate of compliance with Illinois Supreme Court Rule 

651(c) (eff. July 1, 2017). Counsel certified that he consulted with defendant, by telephone and by 

mail, in order “to ascertain his contentions” regarding postconviction relief; “reviewed the court 

file and transcripts of the trial and prior hearings”; and “made the necessary amendments” to the 

pro se petition for “an adequate presentation” of defendant’s contentions. 

¶ 23 The State, instead of filing a motion to dismiss the second amended petition, chose to rely 

on its previously filed motion to dismiss the amended petition, which it had filed in July 2020.

After a hearing on the State’s motion to dismiss, the court granted the State’s motion and dismissed 

the defendant’s second amended petition.

¶ 24 Defendant appealed, and OSAD was appointed to represent defendant. The Illinois Fourth 

District Appellate Court reversed the dismissal of the second amended postconviction petition, 
9 

finding defendant’s claim of actual innocence arguably meritorious. The Fourth District remanded 

for an evidentiary hearing. People v. Turner, 2022 IL App (4th) 200632-U, ¶ 47. 

¶ 25 On remand—in late January 2023—Judge Derek J. Girton discussed with the parties “a 

potential conflict [of interest]” involving the trial prosecutor, assistant State’s attorney Charles D. 

Mockbee IV. Mockbee was now a Vermilion County judge and had been subpoenaed in the case. 

According to Judge Girton, his own office was “literally next door” to Judge Mockbee’s office. 

Judge Girton raised the possibility of having a judge from outside the circuit preside at the 

evidentiary hearing. Thereafter, defendant waived the potential conflict after being thoroughly 

informed of the conflict and discussing it with postconviction counsel. 

¶ 26 On May 10, 2023, the court held an evidentiary hearing on defendant’s second amended 

postconviction petition. Defendant called three witnesses at the evidentiary hearing—Bryson 

Newsome, Autumn Robinson, and himself. Mockbee was not called as a witness at the evidentiary 

hearing. 

¶ 27 Bryson Newsome testified that although he remembered the robbery, he did not remember 

seeing defendant’s face during the robbery. On the night of the robbery, Newsome believed 

defendant was one of the three men who had robbed him. Newsome also remembered telling police 

officers, on the night of the robbery, that defendant was one of the robbers, and he had spent time 

with defendant earlier that day. However, his memory was hazy that night because he was a heavy 

drug abuser at the time and high on the night of the robbery. Newsome also acknowledged that he 

identified defendant in a photo array, shortly after the robbery. Newsome recalled that at 

defendant’s trial, he “believed it was [defendant]” who was among the three men who had entered 

his house. In other words, he believed that defendant was one of the three robbers. However, “years 

later,” he “found out it wasn’t him.” It was in 2016 or 2017 that Newsome learned from a woman 
10 

that he used to work with, Melina Smith, that defendant was not involved in the robbery. Newsome 

averred, “She said her brother was involved” in the robbery, and her brother was not defendant. 

¶ 28 On cross-examination, Newsome admitted that Melina’s brother’s involvement in the 

robbery did not exclude the possibility that defendant was also involved; her brother could have 

been one of the two robbers whom Newsome did not recognize. Newsome admitted to giving false 

testimony at defendant’s trial. He did not believe that it was defendant who came to his apartment 

on December 2, 2012, and robbed him. Newsome admitted writing in his affidavit that the 

prosecutor at defendant’s trial had “coerced” or “bribed” him into testifying that defendant was 

one of the robbers, but explained Mockabee convinced him that defendant was one of the robbers. 

He stated this happened shortly before the trial. Newsome then confirmed that on the night of the 

robbery, and at defendant’s trial, he had no doubt that the defendant was one of the robbers.

¶ 29 Autumn Robinson testified that she was defendant’s “significant other” in December 2012. 

Robinson and defendant lived with Robinson’s grandmother, at the grandmother’s house in 

Danville. She testified that she and defendant got into an argument a few days before Detective 

Hartshorn called her because defendant was going out of town to spend time with friends and 

family. Defendant left town either November 28 or 29 and returned around December 4. Robinson 

testified that defendant told her he went to Indianapolis. She knew that he was in Indiana on 

December 2, 2012, because she could hear him speaking with his cousin Chevron—who lived in 

Indianapolis—in the background when he was on the phone with her and—defendant would never 

lie to her about his whereabouts. However, when police detective Dawn Hartshorn phoned 

Robinson and asked her whether defendant was in Indianapolis on December 2, Robinson replied 

that she did not know because defendant was on parole, and she did not want him to get into trouble 

for being outside of Illinois. Robinson acknowledged that in her affidavit, she did not mention 
11 

parole as her reason for not being straightforward with Hartshorn. She averred that defendant left 

Danville in late November 2012 and returned on December 4, 2012. When Robinson became 

aware of defendant’s legal problems in this case, she “tried to” contact the defendant’s attorney, 

Gloria Morris, on “multiple” occasions in advance of defendant’s trial, but Morris never returned 

her phone calls. Robinson wanted to tell Morris that the only reason she did not inform Hartshorn 

about defendant’s presence in Indianapolis on the date of the crime was her fear that it would cause

problems for his parole. Robinson attended defendant’s trial and was available to testify.

¶ 30 Finally, defendant himself testified. According to the defendant, he was in Indianapolis 

with his cousin Chevron Smith and other relatives on December 2, 2012. He left Danville for 

Indiana shortly after Thanksgiving and returned on December 4 or 5, 2012. Defendant averred he 

was stopped by Indianapolis police, and issued a traffic citation at the time the crime in this case 

was committed. Defendant told his trial attorney about that traffic stop, and he gave her Smith’s 

name, but she did not investigate his alibi. 

¶ 31 The circuit court heard the arguments of counsel. Then, it discussed the evidence adduced 

at the evidentiary hearing. It determined that the evidence that defendant was in Indianapolis on 

the date of the crime “comes down to nothing other than [defendant’s] word that he was in 

Indianapolis.” There was, for example, no traffic citation from Indianapolis police and Robinson 

provided only a belief based on her phone calls with defendant during that time and speaking with 

Smith two weeks after the event occurred. It further found Newsome’s trial testimony was 

believable to the jury at the defendant’s trial but his testimony at the evidentiary hearing was not 

credible “at all.” The court further stated even if Melina Smith’s brother was involved in the home 

invasion, there is no reason to conclude that defendant was not involved in it, because the brother 

could have been one of the two intruders Newsome did not recognize. The court concluded that 
12 

defendant had failed to meet his burden at the evidentiary hearing, and his second amended 

postconviction petition was denied.

¶ 32 Defendant filed a notice of appeal from the denial. The court appointed OSAD as the 

defendant’s appellate attorney. 

¶ 33 II. ANALYSIS

¶ 34 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides 

a method by which any imprisoned person may assert that his conviction or sentence resulted from 

a substantial violation of his federal or state constitutional rights. Id. § 122-1(a)(1); People v. 

Pendleton, 223 Ill. 2d 458, 471 (2006). A proceeding under the Act is a collateral proceeding, not 

an appeal from the judgment of conviction. People v. English, 2013 IL 112890, ¶ 21.

Postconviction proceedings may consist of as many as three stages. Id. ¶ 23. 

¶ 35 A criminal defendant initiates proceedings under the Act by filing a petition in the circuit 

court. 725 ILCS 5/122-1(b) (West 2020). The Act requires the circuit court to examine a 

defendant’s postconviction petition, and enter an order thereon, within 90 days after the petition is 

filed and docketed. Id. § 122-2.1(a). If the court fails to rule on the petition within the 90-day 

timeframe—as was the situation here—the case must be docketed for further consideration at the 

second stage of postconviction proceedings. Id. § 122-2.1(b); Pendleton, 223 Ill. 2d at 472. At the 

second stage, counsel may be appointed for the defendant, if the defendant is indigent (725 ILCS 

5/122-4 (West 2020)), and postconviction counsel must consult with the defendant to ascertain his 

contentions of constitutional deprivation, must examine the record of the proceedings at the trial, 

and must make any amendments to the pro se petition that are necessary for an adequate 

presentation of the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The State may 

then move to dismiss the petition or the amended petition. 725 ILCS 5/122-5 (West 2020). If the 
13 

State is unsuccessful in moving to dismiss the petition at the second stage, the cause advances to 

the third stage of postconviction proceedings, where the circuit court conducts an evidentiary 

hearing, and the defendant may present evidence to establish the truth of his petition’s factual 

allegations. Pendleton, 223 Ill. 2d at 472-73. 

¶ 36 “Throughout the second and third stages of a postconviction proceeding, the defendant 

bears the burden of making a substantial showing of a constitutional violation.” Id. at 473. When 

a petition is advanced to a third-stage evidentiary hearing, the court engages in fact-finding, 

credibility determinations, the weighing of testimony and evidence, and it resolves evidentiary 

conflicts. People v. Domagala, 2013 IL 113688, ¶ 34; People v. Coleman, 183 Ill. 2d 366, 384 

(1998). The court’s decision will be reversed only if this court concludes that the decision was 

manifestly erroneous. Coleman, 183 Ill. 2d at 384. A decision is manifestly erroneous only if it is 

“arbitrary, unreasonable, and not based on the evidence.” People v. Wells, 182 Ill. 2d 471, 481 

(1998). 

¶ 37 As its first potential issue in this appeal, OSAD raises the question of whether the circuit 

court’s denial of relief to defendant, after an evidentiary hearing, was manifestly erroneous.

Defendant’s petition advanced to an evidentiary hearing on claims of (1) a due process violation 

based on the State’s knowing use of perjured testimony and (2) actual innocence. Turner, 2022 IL 

App (4th) 200632-U, ¶¶ 41-45. 

¶ 38 As for a due process violation based on the State’s knowing use of perjured testimony, 

defendant “must present clear, factual allegations of perjury and not mere conclusions or 

opinions.” (Internal quotation marks omitted.) People v. Moore, 2012 IL App (4th) 100939, ¶ 28. 

Moreover, perjury concerns false testimony, not testimony that is merely inconsistent. See People 

v. Laboy, 227 Ill. App. 3d 654, 662 (1992). In his postconviction petition, defendant alleged that 
14 

trial prosecutor Mockbee had “coerced” Newsome into identifying defendant at trial. While 

Newsome’s affidavit supported defendant’s allegation, the court found his testimony that he now 

believed defendant was not involved was not credible. Because the circuit court stands in the best 

position to weigh the credibility of the witnesses, we give deference to the circuit court’s credibility 

determinations. People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 31. Moreover, although 

Newsome testified that he gave false testimony at trial and that Mockabee convinced him that 

defendant was involved, he clarified at the evidentiary hearing that he had no doubt that defendant 

was one of the robbers at the time he identified defendant at trial and that based on a conversation 

with a coworker, he no longer believed defendant was one of the robbers. If Newsome thought that 

defendant was one of the robbers at the time of trial, his testimony was not false and therefore not 

perjury. As such, there is no meritorious argument that the court manifestly erred in denying 

defendant’s due process claim. 

¶ 39 In regard to the postconviction claim of actual innocence, a court should grant relief only 

if the defendant presents new, material, noncumulative evidence that is so conclusive that it would 

probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489 (1996). The court 

found that the only evidence that the defendant was in Indiana at the time of the robbery was the 

defendant’s unsubstantiated word on the matter. Robinson claimed defendant was in Indiana, but 

her affidavit did not entirely line up with her testimony at the evidentiary hearing. Regardless, 

Robinson admitted that she had no firsthand knowledge of defendant’s whereabouts on December 

2, 2012, and only believed he was in Indiana based on defendant’s and his cousin’s word. While 

defendant asserted that he was ticketed in Indiana on the date in question, there was no objective 

evidence that defendant was pulled over or ticketed in Indiana. Therefore, there is no arguably 
15 

meritorious issue that the circuit court manifestly erred in denying the defendant’s actualinnocence claim.

¶ 40 As its second potential issue on appeal, OSAD raises the question of whether 

postconviction counsel provided a reasonable level of assistance. The Act gives a defendant a 

statutory right to counsel, and the defendant is entitled to a reasonable level of assistance from 

counsel. 725 ILCS 5/122-4 (West 2020); People v. Turner, 187 Ill. 2d 406, 410 (1999). Whether 

reasonable assistance was provided is a matter that this court decides de novo. People v. Watson, 

2022 IL App (5th) 190427, ¶ 41. To ensure that a defendant receives reasonable assistance, Illinois 

Supreme Court Rule 651(c) (eff. July 1, 2017) requires a showing in the record, which may be 

made by way of a certificate from postconviction counsel, that counsel consulted with the 

petitioner to ascertain his contentions of deprivation of constitutional rights, examined the record 

of the proceedings at trial, and “made any amendments to the petitions filed pro se that are 

necessary for an adequate presentation of petitioner’s contentions.” If counsel files a certificate 

that substantially complies with Rule 651(c), “a presumption is raised that counsel complied with 

that rule, and the burden is on the defendant to rebut that presumption.” People v. Carrizoza, 2018 

IL App (3d) 160051, ¶ 13. 

¶ 41 Here, postconviction counsel filed a certificate that substantially complied with Rule 

651(c). Nothing in the record serves to contradict the presumption that counsel complied with that 

rule and provided reasonable assistance. As OSAD notes, there is no arguably meritorious claim 

that postconviction counsel failed to satisfy the Act’s reasonableness standard.

¶ 42 Finally, as its third potential issue on appeal, OSAD raises the question of whether Judge 

Girton “suffered from a conflict of interest” where his office was next door to that of Judge 

Mockbee, who had been the prosecutor at defendant’s trial, and if so, whether defendant waived 
16 

any conflict. Illinois Supreme Court Rule 2.11 (eff. Jan. 1, 2023) lists and discusses the various 

circumstances in which a judge shall disqualify himself or herself; none of which apply here. A 

judge is presumed impartial, and the burden of overcoming that presumption rests on the party 

alleging prejudice. People v. Faria, 402 Ill. App. 3d 475, 482 (2010). Here, Judge Girton had no 

specific basis to be disqualified from presiding at defendant’s evidentiary hearing, and Judge 

Mockbee did not ultimately testify at that hearing, despite his being subpoenaed. Moreover, Rule 

2.11(c) allows the judge to participate in the proceeding if the parties agree the judge should not 

be disqualified after the judge discloses the potential basis for disqualification and the parties 

consider whether to waive disqualification outside the presence of the judge and court personnel.

Ill. S. Ct. R. 2.11(C) (eff. Jan. 1, 2023). After the court informed defendant of the potential conflict 

and offered to send the case to be re-assigned to an out-of-county judge, counsel indicated he 

discussed the matter with defendant and defendant waived the potential conflict. Thus, there is no 

merit to the argument that Judge Girton should not have presided over defendant’s evidentiary

hearing. 

¶ 43 III. CONCLUSION

¶ 44 At the third-stage evidentiary hearing on his second amended postconviction petition, 

defendant failed to make a substantial showing of a constitutional violation. Therefore, the circuit 

court did not err in denying defendant’s petition. No argument to the contrary would have 

substantial merit. Accordingly, we grant OSAD’s motion to withdraw and affirm the judgment of 

the circuit court.

¶ 45 Motion granted; judgment affirmed.