2020 IL 124992 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 124992) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

JUSTIN KNAPP, Appellant. 

Opinion filed December 3, 2020. 

JUSTICE KILBRIDE delivered the judgment of the court, with opinion. 

Justices Garman, Karmeier, and Theis concurred in the judgment and opinion. 

Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville. 

Justice Neville dissented, with opinion. 

Justice Michael J. Burke took no part in the decision. 
 

 

 

 

 

OPINION 

¶ 1 This appeal requires us to review the circuit court’s summary dismissal of a 

petition seeking relief under the Post-Conviction Hearing Act (Act) (725 ILCS 

5/122-1 et seq. (West 2014)). The pro se petition alleged, in relevant part, that 

petitioner Justin Knapp did not voluntarily relinquish his right to testify at his trial. 

The appellate court affirmed. 2019 IL App (2d) 160162, ¶ 68. 

¶ 2 In this court, petitioner argues that the appellate court erred in affirming 

summary dismissal of his postconviction petition because the court applied “too 

stringent of a standard” at the first stage of postconviction proceedings. Petitioner 

further argues that the appellate court misunderstood his right-to-testify claim when 

it found that his claim was positively rebutted by the record. For the following 

reasons, we affirm the appellate court’s judgment. 

¶ 3 I. BACKGROUND 

¶ 4 Petitioner Justin Knapp and codefendant Luis Rodriguez were charged with 

attempted first degree murder, mob action, and aggravated battery in connection 

with the stabbing of petitioner’s friend Jorge Avitia. The victim survived the attack 

and identified petitioner and Rodriguez as the assailants. 

¶ 5 A. Trial Proceedings 

¶ 6 At petitioner’s jury trial in the circuit court of McHenry County, the State 

argued that petitioner and Rodriguez were members of the Norteños 14 street gang 

and that they attacked the victim based on his alleged association with a rival street 

gang, the Latin Kings. 

¶ 7 The State’s evidence showed that in the early morning hours of June 10, 2008, 

petitioner, the victim, and their mutual friend Andres Pedroza were at Pedroza’s 

house in Crystal Lake. Pedroza, who was 19 years old, testified that he was friends 

with both petitioner and the victim since elementary school. At approximately 2:30 

a.m., another friend, Christian Saenz, arrived at Pedroza’s home with codefendant 

Rodriguez. The group of men left together in Saenz’s car. After stopping briefly at 

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an apartment building, Saenz drove them to a residence located at 672 Brink Street 

in Woodstock. The group entered the home and sat together in the living room. 

¶ 8 At some point, the victim and Rodriguez began to argue. Pedroza testified that 

he was sitting next to petitioner on the couch during the argument. Pedroza heard 

Rodriguez curse at the victim and call the victim a “King killer,” a statement 

Pedroza understood as a reference to the Latin Kings street gang. Pedroza did not 

know whether petitioner was involved in the argument, but Pedroza did hear 

petitioner talking while Rodriguez and the victim argued. Pedroza could not hear 

what either petitioner or the victim said during the argument. Pedroza denied 

knowing whether petitioner was in a street gang but acknowledged that petitioner 

had tattoos on his face and arm that might be associated with the Norteños 14 gang. 

¶ 9 As the argument continued, Pedroza told the victim “let’s go,” and they left the 

house together and walked toward a train station. After leaving the house, Pedroza 

realized that Rodriguez and petitioner were following them. Pedroza heard 

Rodriguez say “14 something.” Petitioner was also talking, but Pedroza could not 

understand what he was saying. Eventually, Rodriguez and petitioner caught up to 

Pedroza and the victim. Pedroza saw petitioner and Rodriguez repeatedly hit the 

victim. Pedroza also saw either Rodriguez or petitioner holding a “shiny” object 

that Pedroza thought may have been a screwdriver, but Pedroza could not remember 

who was holding the object. 

¶ 10 At some point, Pedroza intervened as the other two men attacked the victim. 

Pedroza grabbed petitioner and asked him what he was doing. After Rodriguez hit 

the victim one more time, both petitioner and Rodriguez ran away together. The 

victim fell to the ground and lost consciousness. Pedroza called 911. 

¶ 11 On cross-examination, Pedroza conceded that he and petitioner consumed 

alcohol that night. Pedroza acknowledged that he was unaware of any prior fights 

between petitioner and the victim. 

¶ 12 Several police and paramedics responded to Pedroza’s 911 call, and they 

located the victim lying unconscious in a parking lot. Pedroza was also present and 

reported the details of the attack. Paramedics discovered that the victim sustained 

multiple stab wounds, including a puncture wound that was later revealed to have 

punctured his heart. After the victim was stabilized, medical personnel transported 

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him to a hospital, where he was treated for three stab wounds to his left collarbone, 

left armpit, and right lower abdomen. 

¶ 13 Pedroza provided police officers with a description of Rodriguez and petitioner, 

including information that both men were wearing white shirts. Pedroza also told 

officers the direction that they ran after the attack. 

¶ 14 Woodstock police officer Daniel Henry testified that, after he received a radio 

description of the assailants, he saw petitioner, who matched Pedroza’s description, 

standing near the front door of 672 Brink Street. Petitioner was holding two red gas 

cans. Petitioner ran inside the residence when he saw Officer Henry’s marked 

police car. Officer Henry knocked on the door, and he was let inside by the owner, 

James Kelley. 

¶ 15 After entering the house, Officer Henry and his partner located petitioner lying 

on a couch under a blanket. Petitioner’s white shirt and shoes were muddy, he was 

sweating, and he appeared out of breath. As the officers arrested petitioner, he 

became aggressive and started yelling references to the Norteños 14 gang. 

Petitioner also threatened to kill the officers and their families. The officers arrested 

petitioner and removed him from the residence. 

¶ 16 When petitioner was brought outside, Pedroza, who was brought to the scene 

by another police officer, positively identified petitioner as one of the victim’s 

attackers. Pedroza later identified Rodriguez as the second assailant in a photo array 

at the police station. 

¶ 17 James Kelley testified that he lived with his girlfriend at 672 Brink Street, the 

residence where petitioner and Rodriguez reportedly argued with the victim. When 

Kelley arrived home the night of June 9, 2008, Rodriguez and another man were at 

his house. Kelley went to bed about 12:30 a.m. but was awakened in the early 

morning hours to the sounds of “banging” on his front door. Kelley saw petitioner 

“pacing” inside his house. Kelley did not recognize petitioner and did not know 

why petitioner was in his house. Petitioner asked Kelley not to open the door. 

Kelley ignored petitioner’s request and told petitioner to sit down. Kelley testified 

that petitioner laid down on a couch and covered himself with a blanket. 

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¶ 18 Kelley opened the door to his residence and saw police officers standing 

outside. Kelley also saw two red gas cans outside his front door that he did not 

remember placing there. Kelley allowed the officers to enter his house and gave 

consent to their search of the house. After police officers entered, Kelley heard 

petitioner “freaking out on [the] couch[,] screaming things in Spanish, [and] 

threatening the police.” Kelley described petitioner as “very aggressive” and heard 

him “yelling out some kind of gang thing about Nortenos.” 

¶ 19 On cross-examination, Kelley admitted that he was friends with Rodriguez and 

that on prior occasions he gave Rodriguez permission to “bring people to [Kelley’s] 

house and party.” Kelley denied that petitioner was ever at his house prior to the 

incident. 

¶ 20 Kelley’s girlfriend, Katrina Cardella, testified and generally corroborated 

Kelley’s testimony. Cardella heard petitioner make several threats to police 

officers, their wives, and their children. Petitioner also threatened the lives of 

Kelley and Cardella. Cardella further testified that petitioner “kept yelling gang 

slogans about the 14s and how he was a gang banger and they never die.” 

¶ 21 The victim testified at trial, largely corroborating Pedroza’s account of the 

events preceding the incident. Specifically, the victim confirmed that, prior to being 

attacked by petitioner and Rodriguez, he argued with them “about Nortenos and 

Kings.” The victim knew petitioner was a member of the Norteños 14 street gang. 

The victim remembered being initially “attacked” by both petitioner and Rodriguez 

and that both men were “punching” his body. The next thing the victim remembered 

was waking up in a hospital. 

¶ 22 On cross-examination, the victim denied being a member of a street gang. The 

victim conceded that he and petitioner never fought before and described petitioner 

as “basically” his best friend prior to the incident. The victim acknowledged that 

he and Pedroza were drinking alcohol prior to the incident. The victim confirmed 

that he did not see petitioner or Rodriguez holding a knife during the attack and he 

did not know who stabbed him. 

¶ 23 The State introduced the testimony of two Crystal Lake police officers with 

experience in street gangs, Officer Paul Olazak and Officer Dimitri Boulahanis. 

Officer Olazak testified that petitioner admitted being a member of the Norteños 14 

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gang, a rival of the Latin Kings gang. Similarly, Officer Boulahanis testified that 

he was aware petitioner was a member of the Norteños 14 gang. Officer Boulahanis 

stated that petitioner had four gang tattoos, wore the colors of the Norteños 14 gang, 

and used hand gestures associated with that gang. Officer Boulahanis testified that 

he had observed the victim wearing the colors of the Latin Kings gang and 

socializing with known Latin Kings gang members, although the victim denied any 

membership in that gang. 

¶ 24 The State introduced a knife that police officers recovered from the grass 

outside the residence at 672 Brink Street. When recovered, the knife had grass on 

it but no blood. No fingerprints were recovered from the knife. The parties 

stipulated that two suspected bloodstains on petitioner’s watch and shoe could not 

be matched to the victim’s DNA profile. 

¶ 25 The defense offered certified statements of conviction to impeach two of the 

State’s witnesses. Kelley had a conviction for theft by deception under $300, and 

the victim had a conviction for aggravated driving under the influence. After the 

court allowed the publication of those prior convictions to the jury, the defense 

rested. 

¶ 26 Relevant to the issue in this appeal, during the jury instruction conference and 

before closing arguments, the State asked the trial court to admonish petitioner of 

his right to testify. The following exchange occurred: 

“THE COURT: I will. Thank you, Miss Kelly. Sir, your attorney has just 

rested the defense case. Have you discussed with [defense counsel] your right 

to testify? 

[PETITIONER]: Yes, ma’am. 

THE COURT: Sir, is it your choice not to testify? 

[PETITIONER]: Yes, ma’am. 

THE COURT: You discussed that thoroughly with [defense counsel]? 

[PETITIONER]: Yes. 

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THE COURT: You understand that the right to testify is a decision that you 

and you alone have the right to make but you should make that decision only 

after discussing it with your attorney. You have done that? 

[PETITIONER]: Yes, ma’am. 

THE COURT: It’s your choice not to testify? 

[PETITIONER]: Yes, ma’am. 

THE COURT: Thank you. 

[DEFENSE COUNSEL]: I have discussed it at great length with him and 

it’s his decision and I respect it. 

THE COURT: Okay. The record will so reflect. Thank you.” 

¶ 27 During closing arguments, the State argued that the undisputed evidence, 

including the victim’s own testimony, showed that petitioner actively participated 

with Rodriguez in the attack on the victim. The State further argued that, even if 

petitioner did not stab the victim during the attack, petitioner was legally 

accountable for Rodriguez’s conduct during the attack. In addition, the evidence 

demonstrated that the motive for the attack was a dispute over rival street gangs. 

Finally, the State maintained that petitioner’s behavior after the attack was 

indicative of his guilt. 

¶ 28 Defense counsel argued that the case depended on whether the jury believed 

that Pedroza and the victim truly knew whether petitioner was trying to help or hurt 

the victim during the incident. Counsel stressed that there was no forensic evidence 

connecting petitioner to the crime—no DNA, no fingerprints, no blood, and no 

photographs. Counsel further argued that the State’s proposed gang-related motive 

for the attack did not make sense because the victim and petitioner were friends for 

years and were “well aware” of each other’s respective gang connections prior to 

the incident. Ultimately, counsel asserted that the group was “drinking way too 

much and I don’t think anyone knows what took place that night.” 

¶ 29 The jury returned guilty verdicts on all counts. The trial court entered judgment 

on the attempted murder conviction and sentenced petitioner to 16 years of 

imprisonment. 

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¶ 30 On direct appeal, petitioner argued that his counsel was ineffective because 

counsel “elicited inadmissible other crimes evidence that was similar to the charged 

offense and also false” and failed to “pursue a ruling on the State’s motion to 

introduce gang evidence or renew his objection to the admission of such evidence.” 

The appellate court rejected both claims and affirmed the trial court’s judgment in 

a summary order. People v. Knapp, No. 2-09-0089 (2010) (unpublished summary 

order pursuant to Illinois Supreme Court Rule 23(c)). 

¶ 31 B. Postconviction Proceedings 

¶ 32 On November 19, 2015, petitioner filed a pro se postconviction petition that is 

the subject of the instant appeal. In that petition, petitioner raised claims of actual 

innocence, involuntary waiver of his right to testify, and ineffective assistance of 

appellate counsel. Petitioner attached his affidavit and more than 80 pages of 

supporting exhibits, including various documents and transcripts related to his 

criminal case and the associated police investigation. 

¶ 33 Relevant to this appeal, petitioner argued that the “waiver of his right to testify 

at trial was not knowing and/or [sic] voluntary where defense counsel failed to 

inform petitioner that counsel was in possession of police reports and other 

evidence corroborative of petitioner’s version of the relevant events.” According to 

petitioner, he had several conversations with defense counsel about his right to 

testify. Petitioner told his counsel that the argument with the victim was not about 

gangs but instead was over a girl named Jackie Gutierrez that Rodriguez had 

insulted. Petitioner also claimed that he met Rodriguez only once before that night 

and he did not know Rodriguez was in a gang. Petitioner told his counsel that he 

saw blood on Rodriguez’s pants and that petitioner moved the two gas cans after 

Rodriguez attempted to burn a bloody shirt. In response, petitioner’s counsel told 

petitioner that this proposed testimony was not supported by independent evidence 

and that petitioner’s denial of Rodriguez’s gang affiliation would open the door for 

the State’s gang expert to testify. 

¶ 34 In petitioner’s attached affidavit, he averred that the answers he gave during the 

colloquy with the court on his right to testify were “the direct result and proximate 

cause of my attorney’s representations to me that there must be corroborative 

evidence supporting my testimony.” Petitioner denied that he was ever told by his 

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counsel or the court that he had an “absolute right to testify and the decision was 

mine alone to make.” Lastly, petitioner attested that “[a]t no time was I made aware 

by my attorney that he in fact possessed physical and circumstantial evidence 

tending to support my intended testimony. Had I known such evidence existed, or 

that my right to testify was not contingent on any extrinsic evidence, I never would 

have waived my right to testify at trial.” 

¶ 35 In January 2016, the circuit court summarily dismissed the petition, concluding 

that petitioner’s claims were frivolous and patently without merit. Petitioner 

appealed, challenging only the trial court’s determination that petitioner’s right-totestify claim was frivolous and patently without merit. The appellate court affirmed 

summary dismissal, concluding that the record positively rebutted petitioner’s 

claim. Alternatively, even if petitioner alleged the gist of a claim of constitutionally 

deficient performance from trial counsel, the court reasoned that petitioner’s claim 

still failed because petitioner did not sufficiently allege prejudice under Strickland 

v. Washington, 466 U.S. 668 (1984). 2019 IL App (2d) 160162, ¶¶ 1, 38, 42. 

¶ 36 The dissenting justice argued that the majority erroneously applied heightened 

postconviction standards to the trial court’s first-stage summary dismissal of the 

petition and misconstrued petitioner’s claim on his right to testify. The dissent 

argued that the record did not positively rebut petitioner’s claim because petitioner 

relied on off-the-record conversations with counsel. 2019 IL App (2d) 160162 

¶¶ 70-134 (McLaren, J., dissenting). 

¶ 37 Petitioner filed a petition for leave to appeal pursuant to Illinois Supreme Court 

Rules 315 (eff. July 1, 2018) and 612 (July 1, 2017). We allowed his petition. 

¶ 38 II. ANALYSIS 

¶ 39 On appeal, petitioner argues that the appellate court erred in affirming the 

circuit court’s summary dismissal of his postconviction petition because it 

erroneously applied “too stringent of a standard” and misunderstood the nature of 

his right-to-testify claim by concluding that the claim was rebutted by the record. 

We review de novo a circuit court’s dismissal of a postconviction petition. People 

v. Allen, 2015 IL 113135, ¶ 19. 

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¶ 40 We first address petitioner’s contention that the appellate court applied “too 

stringent” of a standard to his petition. Specifically, petitioner argues that the 

appellate court erroneously relied on two decisions that involved a second-stage 

dismissal in its analysis of his claims, thereby showing that his petition “was 

unfairly held to second-stage postconviction standards despite being dismissed at 

the first stage.” Petitioner asks this court to reaffirm our prior precedent, 

particularly our decision in People v. Hodges, 234 Ill. 2d 1 (2009), holding that at 

the first stage of postconviction proceedings, the pleadings should be liberally 

construed and the threshold for advancing to the second stage is low. 

¶ 41 As petitioner notes, the appellate court majority cited two decisions involving 

the second-stage dismissal of a postconviction petition for general standards 

applicable to ineffective assistance of counsel claims. See 2019 IL App (2d) 

160162, ¶ 38 (citing People v. Domagala, 2013 IL 113688, ¶ 36, and People v. 

Coleman, 183 Ill. 2d 366, 397 (1998)). We observe, however, that the appellate 

court majority’s analysis also cited several applicable first-stage decisions, 

including our decision in Hodges. 2019 IL App (2d) 160162, ¶¶ 36-37. 

¶ 42 The appellate court majority’s citation to two second-stage decisions does not 

affect our analysis. As we have already observed, this court reviews de novo the 

circuit court’s summary dismissal of a postconviction petition. Allen, 2015 IL 

113135, ¶ 19. We now consider the petitioner’s arguments on the substantive issue 

in this case—whether the circuit court erred in determining that petitioner’s 

allegation on his right to testify was frivolous and patently without merit. 

¶ 43 The Post-Conviction Hearing Act provides a three-stage procedural mechanism 

for a criminal defendant to challenge his or her conviction or sentence for violations 

of federal or state constitutional rights. 725 ILCS 5/122-1 et seq. (West 2014); 

People v. Hommerson, 2014 IL 115638, ¶ 7. At the first stage, within 90 days after 

the petition is filed and docketed, a circuit court shall dismiss a petition summarily 

if the court determines it is “frivolous or is patently without merit.” 725 ILCS 

5/122-2.1(a)(2) (West 2014); Allen, 2015 IL 113135, ¶ 21. 

¶ 44 Because most postconviction petitions are drafted by pro se petitioners, the 

threshold for a petition to survive the first stage of review is low. Hodges, 234 Ill. 

2d at 9. Consequently, summary dismissal of a postconviction petition is warranted 

in a limited number of situations. Allen, 2015 IL 113135, ¶ 25. 

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¶ 45 Generally, a petition may be summarily dismissed as frivolous or patently 

without merit at the first stage only “ ‘if the petition has no arguable basis either in 

law or in fact’ ” or when the petition relies on “ ‘an indisputably meritless legal 

theory or a fanciful factual allegation.’ ” Allen, 2015 IL 113135, ¶ 25 (quoting 

Hodges, 234 Ill. 2d at 16-17). For purposes of summary dismissal, a meritless legal 

theory is one completely contradicted by the record, while fanciful factual 

allegations may be “ ‘fantastic or delusional.’ ” Allen, 2015 IL 113135, ¶ 25 

(quoting Hodges, 234 Ill. 2d at 17). 

¶ 46 A postconviction petition alleging ineffective assistance of counsel should not 

be summarily dismissed if (1) it is arguable that counsel’s performance fell below 

an objective standard of reasonableness and (2) it is arguable that the petitioner was 

prejudiced. People v. Cathey, 2012 IL 111746, ¶ 23 (citing Hodges, 234 Ill. 2d at 

17). Relevant here, it is settled that the decision whether to testify in one’s own 

defense during a criminal trial is a fundamental constitutional right that belongs 

solely to the defendant. People v. Medina, 221 Ill. 2d 394, 403 (2006); People v. 

Enis, 194 Ill. 2d 361, 399 (2000); People v. Madej, 177 Ill. 2d 116, 145-46 (1997). 

The decision, however, should be made with the advice of counsel. People v. Smith, 

176 Ill. 2d 217, 235 (1997). To preserve the right to testify, a criminal defendant is 

required to make a “contemporaneous assertion” of that right. Enis, 194 Ill. 2d at 

399; Smith, 176 Ill. 2d at 236; People v. Thompkins, 161 Ill. 2d 148, 177-78 (1994); 

People v. Brown, 54 Ill. 2d 21, 24 (1973). 

¶ 47 Petitioner maintains that his postconviction petition was sufficient to survive 

summary dismissal because it “presented the gist of a constitutional claim that 

defense counsel was ineffective for providing bad advice” on his right to testify. 

Petitioner contends that it is arguable his counsel’s performance fell below an 

objective standard of reasonableness because counsel incorrectly told petitioner 

that he could not testify unless there was corroborating evidence to support his 

testimony. Similarly, petitioner asserts that it was arguable he was prejudiced by 

counsel’s bad advice because his proposed testimony arguably would have attacked 

the credibility of the victim and Pedroza and the State’s theory of the gang-related 

motive for the attack. 

¶ 48 Petitioner asserts that his failure to make a contemporaneous assertion of his 

right to testify does not defeat his claim at the first stage of postconviction 

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proceedings. According to petitioner, because the petition alleged that he had 

several off-the-record conversations with his counsel, “it can be inferred that he did 

indeed make a contemporaneous assertion to counsel, even if he did not have the 

legal knowledge to explicitly phrase it as such in his postconviction petition.” 

¶ 49 The State responds that summary dismissal was appropriate because petitioner 

failed to present the gist of a claim that counsel violated his right to testify when 

petitioner failed to make a contemporaneous assertion of his right to testify. The 

State also argues that the trial court asked petitioner on the record about his decision 

to relinquish his right to testify and petitioner affirmed that he chose not to testify, 

positively rebutting the claims in his petition. Alternatively, the State contends that 

petitioner failed to allege sufficiently that trial counsel’s performance was arguably 

deficient. In addition, the State asserts that petitioner failed to show that any 

deficiency of counsel arguably prejudiced petitioner when the evidence of his guilt 

was overwhelming and his proposed testimony did nothing more than provide an 

alternative motive for the attack. 

¶ 50 Because we find it dispositive, we first address whether the record rebuts 

petitioner’s allegations on his right to testify. We agree with petitioner’s general 

proposition that a pro se petitioner is not required to use precise legal language 

alleging a “contemporaneous assertion of the right to testify” to survive first-stage 

summary dismissal. Our postconviction jurisprudence, however, holds that 

summary dismissal is warranted when the record positively rebuts the allegations. 

Allen, 2015 IL 113135, ¶ 25 (citing Hodges, 234 Ill. 2d at 17). 

¶ 51 Here, the record contains nothing to suggest that petitioner ever alerted the trial 

court of his desire to testify, that he had any questions about his right to testify, or 

that he otherwise was unsure about waiving his right to testify. See Smith, 176 Ill. 

2d at 234 (observing that “a vast majority of the states considering this question 

have held that a defendant’s waiver of his right to testify is presumed if *** he fails 

to testify or notify the court of his desire to do so”). Petitioner did not express any 

indication that he wanted to testify when the circuit court admonished him of that 

right at the request of the State prior to closing arguments. 

¶ 52 Petitioner acknowledges that the trial court admonished him on the record of 

his right to testify. Petitioner asserts, however, that those admonishments do not 

rebut his postconviction claim that trial counsel’s incorrect advice rendered 

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petitioner’s decision not to testify involuntary. Similar to the dissenting justice’s 

position, petitioner argues that “[j]ust because [his] off-record claims were not 

supported by on-record evidence does not mean that they were rebutted” for 

purposes of postconviction proceedings. We disagree. 

¶ 53 Critically, the record demonstrates that petitioner not only understood his right 

to testify but that it was petitioner’s decision not to testify. See Enis, 194 Ill. 2d at 

399 (“The decision whether to take the witness stand and testify in one’s own behalf 

ultimately belongs to the defendant.” (citing Thompkins, 161 Ill. 2d at 177)). The 

circuit court admonished petitioner that “the right to testify is a decision that you 

and you alone have the right to make but you should make that decision only after 

discussing it with your attorney.” Petitioner immediately confirmed that it was his 

decision not to testify. Trial counsel also confirmed on the record that he discussed 

the matter “at great length” with petitioner and that petitioner made the decision not 

to testify. 

¶ 54 Even taking petitioner’s allegations as true and construing them liberally (Allen, 

2015 IL 113135, ¶ 25), the alleged off-the-record conversations with counsel on 

petitioner’s right to testify occurred before the circuit court’s admonishments. After 

the court’s admonishments, petitioner confirmed on the record that the decision not 

to testify was his alone. See, e.g., People v. Cleveland, 2012 IL App (1st) 101631, 

¶ 65 (explaining that, “[a]s with many constitutional rights that may be waived, it 

is incumbent upon the defendant to assert his right to testify such that his right can 

be vindicated during the course of the trial”). Nothing in our postconviction 

jurisprudence allows, let alone requires, a reviewing court to ignore the record. In 

our view, petitioner’s responses during the trial court’s admonishments 

unequivocally rebut his allegations that his decision not to testify was involuntary 

or based on allegedly erroneous advice from counsel. 

¶ 55 We acknowledge, as petitioner directs to our attention, that the Seventh Circuit 

Court of Appeals has commented on the appellate court decision in this case. 

Specifically, in a footnote the Seventh Circuit stated that 

“we are troubled by the obligation that Illinois caselaw appears to impose upon 

a defendant to contemporaneously assert a right to testify in circumstances 

where defense counsel has just silenced the defendant. Perhaps the Illinois 

Supreme Court will find occasion to take another look at its approach when it 

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considers Knapp later this term.” Hartsfield v. Dorethy, 949 F.3d 307, 315 n.5. 

(7th Cir. 2020). 

¶ 56 Respectfully, we find those concerns inapplicable here. In Hartsfield, Hartsfield 

and his mother both alleged that Hartsfield communicated his desire to testify and 

counsel disagreed and said he would not put Hartsfield on the stand. Counsel 

assured Hartsfield that he would get his chance to speak when the trial judge 

admonished him on the right to testify, but the trial court never gave Hartsfield any 

admonishments on his right to testify. Later, when Hartsfield attempted to assert his 

right to testify on the record and in open court, he claimed that counsel 

“ ‘shushed’ ” him and prevented Hartsfield from expressing his desire to testify. 

(Emphasis added.) Hartsfield, 949 F.3d at 315. None of those circumstances are 

present here. 

¶ 57 It is worth noting that Hartsfield recognized there is not settled United States 

Supreme Court precedent on the preservation of a defendant’s right to testify at his 

or her criminal trial. Hartsfield, 949 F.3d at 316. In fact, the Seventh Circuit cited 

favorably the First Circuit’s determination that “ ‘the [United States] Supreme 

Court has never articulated the standard for assessing whether a criminal defendant 

has validly waived his right to testify or determined who has the burden of 

production and proof under particular circumstances.’ ” Hartsfield, 949 F.2d at 316 

(quoting Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016)). Necessarily, then, 

we adhere to settled Illinois law on the matter. 

¶ 58 In summary, the record in this case contains not even the slightest suggestion 

that petitioner was hesitant or unsure of his decision not to testify or otherwise 

wished to exercise his right to testify. Instead, the record demonstrates that the trial 

court confirmed that petitioner consulted with counsel on his decision whether to 

testify, petitioner understood that the decision whether to testify was his alone, and 

then petitioner chose not to testify. On this record, we agree with the appellate court 

that summary dismissal was warranted because petitioner’s postconviction 

allegations are positively rebutted by the record and, therefore, without merit. Allen, 

2015 IL 113135, ¶ 25 (citing Hodges, 234 Ill. 2d at 17). 

¶ 59 III. CONCLUSION 

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¶ 60 For the reasons stated, we conclude that the circuit court did not err in 

summarily dismissing petitioner’s postconviction petition. We therefore affirm the 

appellate court’s judgment that reached the same conclusion. 

¶ 61 Affirmed. 

¶ 62 CHIEF JUSTICE ANNE M. BURKE, dissenting: 

¶ 63 A majority of this court affirms the appellate court judgment, which affirmed 

the circuit court’s summary dismissal of the pro se postconviction petition brought 

by petitioner, Justin Knapp. In reaching this result, the majority fundamentally 

misinterprets petitioner’s postconviction claim. Accordingly, I respectfully dissent. 

¶ 64 Petitioner filed a pro se postconviction petition, alleging that he did not 

voluntarily relinquish his right to testify at his trial. In support, petitioner provided 

an affidavit in which he asserted that counsel misled him by misstating the law, i.e., 

telling him that he could not testify if he did not have extrinsic evidence supporting 

his proposed testimony. In addition, petitioner averred in his affidavit that counsel 

failed to tell him that certain evidence existed that would have supported 

petitioner’s proposed testimony, thus making counsel’s advice both legally and 

factually inaccurate. The circuit court summarily dismissed the petition, and the 

appellate court affirmed, with Justice McLaren dissenting. 2019 IL App (2d) 

160162, ¶ 68. 

¶ 65 A majority of this court affirms. The majority holds that summary dismissal 

was warranted because the record positively rebuts petitioner’s allegations. The 

majority states, “the record contains nothing to suggest that petitioner ever alerted 

the trial court of his desire to testify, that he had any questions about his right to 

testify, or that he otherwise was unsure about waiving his right to testify.” Supra 

¶ 51. 

¶ 66 According to petitioner’s postconviction petition, the reason petitioner told the 

trial court that he had no questions about his right to testify is because his attorney 

gave him bad advice. To merely state that petitioner said he had no questions about 

testifying—which is all the majority does here—is to completely miss the point of 

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petitioner’s contention. Stated otherwise, the majority has concluded that, no matter 

how inaccurate or ill-informed an attorney’s advice may be, it can have no effect 

on the voluntariness of a defendant’s decision to testify, so long as the defendant 

tells the trial court that he has no questions about testifying. I do not think this is a 

reasonable result. 

¶ 67 In a lengthy and thorough dissent in the appellate court Justice McLaren 

explained why the analysis adopted by the majority here is flawed. Because 

petitioner’s postconviction petition was dismissed at the first stage, his petition only 

needed to present the gist of a constitutional claim, which is a low threshold, 

“ ‘requiring only that the petitioner plead sufficient facts to assert an arguably 

constitutional claim.’ People v. Brown, 236 Ill. 2d 175, 184 (2010).” 2019 IL App 

(2d) 160162 ¶ 73 (McLaren, J., dissenting). Noting that “[i]ncomplete or inaccurate 

information given to a defendant regarding his right to testify ‘ “is arguably a factor 

in consideration of whether counsel was ineffective.” ’ Id. ¶ 91 (quoting People v. 

Lester, 261 Ill. App. 3d 1075, 1079 (1994), quoting People v. Nix, 150 Ill. App. 3d 

48, 51 (1986)),” the dissent concluded that “petitioner pled sufficient facts to assert 

an arguably constitutional claim (see Brown, 236 Ill. 2d at 184) such that the 

petition was neither frivolous nor [patently] without merit.” Id. I agree with the 

analysis and conclusions reached in Justice McLaren’s dissent and adopt it in its 

entirety. Accordingly, I would hold that the trial court’s dismissal should be 

reversed and the cause remanded for second-stage proceedings. 

¶ 68 JUSTICE NEVILLE joins in this dissent. 

¶ 69 JUSTICE NEVILLE, dissenting: 

¶ 70 I join in Chief Justice Burke’s dissent and agree that Justice McLaren’s dissent 

correctly analyzes and resolves the first-stage postconviction question presented in 

this case. I write separately to restate and highlight the well-settled rule that at the 

first stage of postconviction proceedings, a pleading review stage, the trial court is 

limited to examining the pleadings to determine whether the allegations in the 

petition allege a constitutional infirmity or denial of rights that would necessitate 

relief under the Act. See People v. Robinson, 2020 IL 123849, ¶¶ 42, 45; see also 

People v. Allen, 2015 IL 113135, ¶ 24; People v. Brown, 236 Ill. 2d 175, 184 

(2010); People v. Collins, 202 Ill. 2d 59, 65-66 (2002). As explained in Robinson, 

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at the pleading stage the trial court is precluded from making factual and credibility 

determinations. Robinson, 2020 IL 123849, ¶ 45. Therefore, at the first stage of 

postconviction proceedings, the trial court cannot consider the merits of substantive 

issues raised in the petition. Id. Accordingly, I join in this dissent because the 

majority ignored the first-stage postconviction procedural rules delineated in 

Illinois Supreme Court jurisprudence. 

¶ 71 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision 

of this case. 

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