2020 IL 124940 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 124940) 

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

DEMARIO D. REED, Appellant. 

Opinion filed December 3, 2020. 

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

Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, and Neville 

concurred in the judgment and opinion. 

Justice Michael J. Burke specially concurred, with opinion. 

OPINION 

¶ 1 This case presents the issue of whether a guilty plea prevents a defendant from 

asserting an actual innocence claim under the Post-Conviction Hearing Act (Act) 

(725 ILCS 5/122-1 et seq. (West 2016)). The Appellate Court, Fourth District, 

answered in the affirmative and affirmed the denial of defendant’s petition on this 
 

 

 

basis. See 2019 IL App (4th) 170090. For the reasons below, we reject the appellate 

court’s conclusion that a guilty plea forecloses a claim of actual innocence under 

the Act but nevertheless affirm the denial of defendant’s claim on the merits. 

¶ 2 BACKGROUND 

¶ 3 On September 29, 2014, defendant was charged by information with a count of 

armed violence (720 ILCS 5/33A-2(a) (West 2014)) in that, while armed with a 

shotgun, defendant possessed less than 15 grams of cocaine. Defendant was also 

charged with unlawful possession of a weapon by a felon (id. § 24-1.1(a)), unlawful 

possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) 

(West 2014)), and unlawful possession of a controlled substance (id. § 402(c)). 

¶ 4 The charges were supported by an officer’s sworn testimony to the following. 

While patrolling in a marked patrol car, the officer observed several subjects sitting 

on the front porch of a residence located in an area that was viewed as a high-crime 

area and where large amounts of narcotics were sold. Upon seeing an officer exiting 

the car to make voluntary contact with the subjects, defendant jumped up and ran 

inside the house. The owner of the residence later informed the officer that 

defendant did not have permission to enter the residence. 

¶ 5 The officer further observed that, as defendant jumped up, he grabbed the right 

side of his right leg just above the knee and continued to do so as he ran into the 

residence. The police report described defendant’s leg as stiff and not bending 

normally. 

¶ 6 Soon after defendant ran inside, the second subject, Davie Callaway, fled from 

the couch into the dining room. The third subject stayed seated on the couch with 

his hands in the air. After the other subjects were secured, the officer located 

defendant lying facedown on a bed in a bedroom located on the southwest corner 

of the house. 

¶ 7 The officers then searched defendant’s flight path, which was described by two 

witnesses inside the residence. By the bed in the northwest bedroom, officers 

recovered a cellophane wrapper for a cigarette pack that contained 0.4 grams of 

crack cocaine. Under the bed, the officers discovered a sawed-off shotgun that was 

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situated in a manner that indicated it had been thrown underneath the bed. The 

police report noted moisture in the area of the barrels, which indicated that the 

shotgun had not been underneath the bed for very long and most likely had been 

left outside for a period of time. The officer further explained in the police report 

that “firearms are often concealed outside in a location that is quickly and easily 

accessible by the offender, but not actually possessed by the offender should the 

Police arrive.” 

¶ 8 Upon a search incident to arrest, officers further found approximately 1.5 grams 

of suspected crack cocaine on Davie Callaway and a digital scale on defendant. 

¶ 9 After defendant’s unsuccessful motion to dismiss the charges, the parties 

presented to the court a plea agreement under which defendant would plead guilty 

to one count of armed violence in exchange for a sentence of 15 years’ 

imprisonment. As its factual basis to support the plea, the State averred that “Officer 

Daniels would testify that he observed” “the defendant flee upon sight of him. The 

defendant was running oddly. When he entered the house, he located a shotgun and 

cocaine. The defendant was located in a bedroom, and the shotgun had the 

defendant’s DNA on it.” The court then properly admonished defendant pursuant 

to Illinois Supreme Court Rule 402 (eff. July 1, 2012). After confirming the plea 

was made knowingly and voluntarily, the court accepted the plea and found 

defendant guilty of armed violence (720 ILCS 5/33A-2(a) (West 2014)). On April 

13, 2015, defendant was sentenced to 15 years’ imprisonment. The court then 

granted the State’s motion to dismiss and strike the remaining counts against 

defendant. 

¶ 10 Defendant’s initial post-conviction petition under the Act (725 ILCS 5/122-1 

et seq. (West 2016)) asserted an actual innocence claim and an ineffective 

assistance of counsel claim but was summarily dismissed as frivolous. 

Subsequently, on January 20, 2016, defendant filed a motion for leave to file a 

successive post-conviction petition asserting actual innocence. 1 Defendant 

specifically alleges that it is undisputed that he did not reside at the residence in 

which the gun and drugs were found and that he has “absolutely zero knowledge of 

what is within that residence.” Also, no DNA links defendant to the drugs. He 

1

Defendant also asserted an ineffective assistance of counsel claim. However, this claim is not 

an issue before this court. 

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further noted that the gun was found not on his person but under the bed in a 

different room from where he was apprehended. 

¶ 11 Unlike his initial petition, defendant attached the affidavit of Davie Callaway 

to support his claim of innocence, which was dated October 15, 2015. Callaway 

averred that he was the sole owner of the cocaine found in the residence and that 

defendant had zero knowledge of the presence of cocaine in that residence. 

Callaway’s testimony lacked any reference to the shotgun. 

¶ 12 The circuit court allowed leave to file the petition. The State filed a motion to 

dismiss, arguing, inter alia, that defendant could not assert a freestanding claim of 

innocence. It relied on People v. Barnslater, 373 Ill. App. 3d 512, 527 (2007), rev’d 

on other grounds, People v. Robinson, 2020 IL 123849, ¶ 55, which stated in dicta 

that “defendant’s postconviction claim of actual innocence cannot be deemed to 

deprive him of his due process rights in the face of the fact that the defendant 

previously confessed to the commission of the crime in his plea.” 

¶ 13 Defendant’s petition proceeded to a third stage evidentiary hearing, where 

Callaway testified in accordance with his affidavit. On cross-examination, 

Callaway admitted he did not write the affidavit until he was imprisoned with 

defendant. He further acknowledged speaking with defendant about his intention to 

provide the affidavit while imprisoned together but claimed that defendant never 

requested him to write it. Callaway explained that he felt bad that defendant was 

charged with possession because of him. 

¶ 14 On January 20, 2017, the circuit court denied defendant’s petition. It found 

Callaway’s testimony was new but not credible, specifically noting that he did not 

come forward until after he pled guilty and was in the same prison as defendant. It 

also found that Callaway’s affidavit was not of such conclusive character that it 

would probably change the result on retrial because, at the time of defendant’s plea, 

defendant knew pointing the fault at codefendants for possessing the drugs was a 

viable defense. Defendant appealed. 

¶ 15 The appellate court affirmed but on different grounds. It found that a valid 

guilty plea forecloses a post-conviction claim of actual innocence. See 2019 IL App 

(4th) 170090. In support of its holding, the appellate court relied upon People v. 

Cannon, 46 Ill. 2d 319, 321 (1970), wherein this court stated: “ ‘Before his plea of 

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guilty was accepted, the defendant, represented by appointed counsel, was fully and 

carefully admonished by the trial judge, and in the light of that admonition, the 

defendant’s present [innocence] claim cannot be entertained.’ ” 2019 IL App (4th) 

170090, ¶ 19 (quoting Cannon, 46 Ill. 2d at 321). Although it acknowledged this 

statement was obiter dicta, without an explicit decision from this court to the 

contrary, it found it was bound to follow Cannon. Therefore, in agreement with the 

First District in Barnslater, it found defendant’s innocence claim cannot be 

entertained because he knowingly and voluntarily pled guilty to the charge of which 

he now claims to be innocent. Id. ¶ 17. Furthermore, the appellate court found that 

to allow defendant to knowingly and voluntarily plead guilty and then turn around 

to complain to a reviewing court that the trial court found him guilty is “paradoxical 

if not duplicitous.” Id. ¶ 26. If there is any error, it is an error that defendant invited 

himself by pleading guilty to armed violence. Id. 

¶ 16 We granted defendant’s petition for leave to appeal pursuant to Illinois Supreme 

Court Rule 315 (eff. July 1, 2018). 

¶ 17 ANALYSIS 

¶ 18 This appeal arises from defendant’s post-conviction petition under the Act, 

which provides a statutory remedy to defendants who claim substantial violations 

of their rights occurred in the proceedings that resulted in their conviction. People 

v. English, 2013 IL 112890, ¶ 21. A post-conviction petition is not a substitute for 

appeal but, rather, is a collateral attack. Id. Accordingly, issues that were raised and 

decided on direct appeal are barred by res judicata, and issues that could have been 

raised on direct appeal, but were not, are forfeited. Id. ¶ 22. Defendant bears the 

burden of proving that a substantial violation occurred. Id. ¶ 21. 

¶ 19 Over 20 years ago, in People v. Washington, 171 Ill. 2d 475, 489 (1996), this 

court found a freestanding claim of actual innocence is cognizable under the Act. 

We reasoned that the “[i]mprisonment of the innocent would also be so conscience 

shocking as to trigger operation of substantive due process.” Id. at 487-88. Also, to 

ignore such a claim would be fundamentally unfair in terms of procedural due 

process. Id. at 487. 

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¶ 20 This case presents the issue of whether a guilty plea prevents a defendant from 

asserting an actual innocence claim under the Act. This issue involves questions of 

law that are subject to de novo review. Brunton v. Kruger, 2015 IL 117663, ¶ 72. 

¶ 21 The appellate court relied on Cannon, which considered claims in defendant’s 

petition that were not argued on appeal after determining the issue before the court 

lacked merit. Cannon, 46 Ill. 2d at 321. The Cannon court found the unargued 

claims “amount basically to an unsupported assertion that the accusation against 

him was false and that his daughter and two of his sons were coerced by threats 

from their mother, the defendant’s wife.” Id. The court further noted: “Before his 

plea of guilty was accepted, the defendant, represented by appointed counsel, was 

fully and carefully admonished by the trial judge, and in the light of that 

admonition, the defendant’s present claim cannot be entertained.” Id. 

¶ 22 However, not all Illinois decisions agree that Cannon controls this issue. In 

People v. Shaw, 2019 IL App (1st) 152994, ¶ 54, the First District disagreed with 

the appellate court decision here and found that a guilty-plea defendant may bring 

an actual innocence claim without challenging the validity of the plea. It first 

determined that Washington made no distinction between defendants whose 

convictions arise out of a trial or out of a guilty plea in holding that “no person 

convicted of a crime should be deprived of life or liberty given compelling evidence 

of actual innocence” and that it believed the tenet should apply equally in either 

circumstance. (Emphasis omitted.) Id. ¶ 45. In explaining its departure from Reed, 

2019 IL App (4th) 170090, the Shaw court found that the statement in Cannon was 

not only dicta but too imprecise to express this court’s explicit intention to create 

such a significant rule. Shaw, 2019 IL App (1st) 152994, ¶ 52. It also noted that 

Reed is only the third case to cite Cannon for any purpose and that no other case 

has read Cannon to create “a categorical bar.” Id. ¶ 49. Therefore, in light of this 

court’s more recent statements in Washington, Cannon’s dicta cannot be read to 

prohibit actual innocence claims following guilty pleas in all circumstances. Id. 

¶ 52. 

¶ 23 The issue of actual innocence was not briefed nor argued before the court and 

was not essential to the disposition in Cannon. As acknowledged by the Fourth and 

First Districts, Cannon’s statements are therefore dicta, which is not binding on this 

court. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 236 (2010). This 

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statement was made in the context of an unsupported claim and before this court 

recognized that a freestanding claim of innocence was cognizable under the Act as 

a matter of due process. Washington, 171 Ill. 2d at 487-88. We therefore find the 

scant analysis and resulting obiter dicta of Cannon does not control this case. 

¶ 24 Consequently, the issue of whether defendants who plead guilty waive any 

claim of actual innocence under the Act is one of first impression. To determine 

whether there is waiver, we must consider the motives behind and consequences of 

a plea in light of the precise challenge asserted by an actual innocence claim. People 

v. Phipps, 238 Ill. 2d 54, 62 (2010). Issues of waiver are construed liberally in favor 

of the defendant. Id. 

¶ 25 Negotiated guilty pleas are the result of an agreement between the State and 

defendant, in which both parties benefit and make concessions. People v. Eckhardt, 

127 Ill. 2d 146, 151-52 (1989). The State benefits from the prompt and largely final 

disposition of most criminal cases, which preserves prosecutorial and judicial 

resources for cases in which there are substantial issues of proof. People v. Boyt, 

109 Ill. 2d 403, 416 (1985); Brady v. United States, 397 U.S. 742, 752 (1970). These 

benefits motivate the State to make certain concessions, including sacrificing the 

opportunity to present the entirety of the evidence, dismissal of certain charges, and 

ceasing further investigation that may result in additional charges. 

¶ 26 Defendants also incur substantial benefits and burdens as the result of a plea 

agreement. To defendants’ benefit, they can obtain a favorable sentence and 

dismissal of other charges. Talarico v. Dunlap, 177 Ill. 2d 185, 195 (1997); People 

v. Jones, 144 Ill. 2d 242, 269-70 (1991). They also avoid the agony and cost of trial. 

Talarico, 177 Ill. 2d at 195; Brady, 397 U.S. at 752. 

¶ 27 The consequences of a plea for a defendant, however, are severe. People v. 

Evans, 174 Ill. 2d 320, 326 (1996). A guilty plea is an admission of guilt and a 

conviction in and of itself. People v. White, 2011 IL 109616, ¶ 17 (“The plea 

obviates the prosecution’s burden of proof. It supplies both evidence and verdict, 

ending controversy.” (Internal quotation marks omitted.)). It is specifically 

designed to waive the right to a jury trial, relieving the State of its burden to prove 

defendant guilty beyond a reasonable doubt. People v. Townsell, 209 Ill. 2d 543, 

547 (2004) (citing Hill v. Cowan, 202 Ill. 2d 151, 154 (2002)). As such, by pleading, 

a defendant “waives all nonjurisdictional defenses or defects,” including 

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constitutional ones. People v. Burton, 184 Ill. 2d 1, 27 (1998); Townsell, 209 Ill. 2d 

at 545. 

¶ 28 Because a plea entails significant consequences for both parties, the State 

argues that defendant cannot now assert a claim of innocence. Specifically, the 

State highlights the defendant’s waiver of his right to a jury trial, to present 

defenses, and to proof beyond a reasonable doubt. It also contends that allowing a 

claim of innocence would dissuade it from entering plea negotiations where the 

benefit of finality and certainty that motivates it to make concessions may be 

collaterally attacked. We disagree. 

¶ 29 In Washington, this court held that our constitution affords additional due 

process when newly discovered evidence shows that a convicted person is actually 

innocent on the basis that “[n]o person shall be deprived of life, liberty or property 

without due process of law nor be denied the equal protection of the laws.” Ill. 

Const. 1970, art. I, § 2; Washington, 171 Ill. 2d at 487-89. We clarified that the 

claim does not depend on—and is separate from—a challenge to the sufficiency of 

the evidence or an allegation of error in the court below. Washington, 171 Ill. 2d at 

487. 

¶ 30 In addressing the federal precedent on the matter, we explicitly rejected the 

notion that a defendant must be viewed as guilty absent a constitutional error in the 

underlying proceedings. Id. at 488. This is so because a strong claim of innocence 

undermines the legal construct that precludes a substantive due process analysis 

and dictates defendant be viewed as guilty. Id. At the point where the evidence 

undermines the court’s confidence in this legal construct, the additional due process 

afforded by our constitution is triggered. Id. 

¶ 31 Upon a closer examination of Washington and the precise contentions of an 

actual innocence claim, the State’s arguments are unconvincing. Because the claim 

does not assert a challenge to the sufficiency of the evidence or any error in the 

proceedings that led to the conviction (id.), defendant’s waiver of his right to 

challenge the State’s proof of guilt beyond a reasonable doubt at trial should not 

impact his actual innocence claim. Significantly, the State and appellate court 

overlooked that a “ ‘truly persuasive demonstration of innocence’ ” breaks the 

barriers established by the legal construct that precludes a substantive due process 

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analysis and dictates that the defendant be viewed as guilty. Id. We find this 

rationale applies with no less force in the context of guilty pleas. 

¶ 32 The purpose of our criminal justice system is to seek justice. United States v. 

Nobles, 422 U.S. 225, 230 (1975) (citing Berger v. United States, 295 U.S. 78, 88 

(1935)); Washington, 171 Ill. 2d at 493 (McMorrow, J., specially concurring). 

Justice means not only punishing the guilty but also ensuring the innocent do not 

suffer. Nobles, 422 U.S. at 230 (citing Berger, 295 U.S. at 88). We note that, as a 

part of the criminal justice system, the prosecution has the same duty and interest 

in seeking the truth and justice. People v. Beaman, 229 Ill. 2d 56, 73 (2008) (“The 

prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that 

justice shall be done.” (Internal quotation marks omitted.)). 

¶ 33 Plea agreements, while vital to our criminal justice system (Evans, 174 Ill. 2d 

at 325), are not structured to “weed out the innocent” or guarantee the factual 

validity of the conviction (Schmidt v. State, 909 N.W.2d 778, 788 (Iowa 2018)). 

See Missouri v. Frye, 566 U.S. 134, 144 (2012) (“ ‘To a large extent . . . horse 

trading [between prosecutor and defense counsel] determines who goes to jail and 

for how long. That is what plea bargaining is.’ ” (quoting Robert E. Scott & William 

J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992))); Brady, 

397 U.S. at 757-58 (“This is not to say that guilty plea convictions hold no hazards 

for the innocent or that the methods of taking guilty pleas presently employed in 

this country are necessarily valid in all respects. This mode of conviction is no more 

foolproof than full trials to the court or to the jury.”). The plea system encourages 

defendants to engage in a cost-benefit assessment where, after evaluating the 

State’s evidence of guilt compared to the evidence available for his defense, a 

defendant may choose to plead guilty in hopes of a more lenient punishment than 

that imposed upon a defendant who disputes the overwhelming evidence of guilt at 

trial. See Jones, 144 Ill. 2d at 269; Brady, 397 U.S. at 756. As such, it is well 

accepted that the decision to plead guilty may be based on factors that have nothing 

to do with defendant’s guilt. See Brady, 397 U.S. at 757-58; Talarico, 177 Ill. 2d 

at 195. Empirical data related to exonerations further prove that innocent people 

plead guilty, as 18% of all exonerees and 11% of those exonerated through DNA 

pled guilty. Peter A. Joy & Kevin C. McMunigal, Post-Conviction Relief After a 

Guilty Plea? 35 Crim. Just. 53, 55 (Summer 2020). 

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¶ 34 Importantly, our rules allow the court to accept a plea of guilty even where 

defendant asserts his innocence, as long as a sufficient factual basis exists and the 

court satisfies the other requirements delineated in Illinois Supreme Court Rule 402 

(eff. July 1, 2012). People v. Gaines, 2020 IL 125165, ¶ 36. Unlike a conviction 

after trial, where the State’s evidence is scrutinized and must meet the beyond a 

reasonable doubt standard, the factual basis to support the plea is held to a less 

stringent level of proof, requiring only a basis from which the court could 

reasonably conclude that defendant actually committed the acts constituting the 

offense to which defendant is pleading guilty. People v. Barker, 83 Ill. 2d 319, 327-

28 (1980). 

¶ 35 Accordingly, pleas are no more foolproof than trials. Brady, 397 U.S. at 758. 

When met with a truly persuasive demonstration of innocence, a conviction based 

on a voluntary and knowing plea is reduced to a legal fiction. Washington, 171 Ill. 

2d at 488. At that point, the additional due process afforded by the Illinois due 

process clause is triggered despite the legal construct—the entire plea proceedings 

including defendant’s waiver of all nonjurisdictional defects—that precludes a 

guilty-plea defendant’s claim. Id. 

¶ 36 Moreover, we emphasize this court’s long-established preference for life and 

liberty over holding defendant to his plea. People v. King, 1 Ill. 2d 496, 500 (1953) 

(per curiam); People v. McKirdie, 45 Ill. 2d 300, 302 (1970). Recently, in Gaines, 

2020 IL 125165, ¶¶ 43-44, we reaffirmed that courts may allow defendants to 

withdraw their pleas based on claims of innocence or where the court doubts the 

truth of the pleas, even where the court already accepted the plea. In People v. 

Belcher, 199 Ill. 2d 378, 383 (2002), we also allowed a defendant to file a motion 

to withdraw his plea based upon a misunderstanding of law regarding his insanity 

defense for the first time on appeal. While the issue of waiver by plea was not raised 

in the above cases, they support the conclusion that sometimes a manifest injustice 

outweighs the consequences of defendant’s voluntary plea. 

¶ 37 In light of these considerations, we find the defendant’s waiver of his right to 

challenge the State’s proof of guilt beyond a reasonable doubt at trial in the 

proceedings that led to his conviction does not prevent him from asserting his right 

to not be deprived of life and liberty given compelling evidence of actual innocence 

under the Act. 

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¶ 38 For the same reasons, we also reject the State’s contention that the record of the 

plea proceedings positively rebuts any claim of actual innocence. An admission of 

guilt—while often sufficient to support the acceptance of the plea and a 

conviction—is not guilt in fact. Gaines, 2020 IL 125165, ¶ 32 (trial judge decides 

whether to accept the plea and “legally deem the defendant guilty of the relevant 

charge”); see Talarico, 177 Ill. 2d at 195 (It is not always reasonable to presume 

that defendant’s admission of guilt pursuant to his negotiated plea establishes a fact 

that cannot be relitigated.). 

¶ 39 The State’s application of the invited error doctrine is equally unpersuasive. 

The invited error doctrine is akin to equitable estoppel in that a party “may not 

request to proceed in one manner and then later contend *** that the course of 

action was in error.” People v. Carter, 208 Ill. 2d 309, 319 (2003). Under this 

doctrine, the State claims defendants cannot voluntarily and knowingly plead guilty 

to the trial court then turn around and complain to a reviewing court that the trial 

court found them guilty. 

¶ 40 As explained above, a claim of innocence is not based on the defendant’s 

misapprehension of the quality of the State’s case nor an error of the court in finding 

defendant guilty. Rather, it is a request for the additional due process that is 

triggered by new and compelling evidence demonstrating defendant’s innocence. 

Washington, 171 Ill. 2d at 487. Defendant did not invite the deprivation of his 

liberty despite compelling evidence of his innocence when he lacked knowledge of 

and could not reasonably discover such evidence at the time of his plea. 

¶ 41 This court refuses to turn a blind eye to the manifest injustice and failure of our 

criminal justice system that would result from the continued incarceration of a 

demonstrably innocent person, even where a defendant pleads guilty. See id. at 489; 

id. at 493 (McMorrow, J., specially concurring). Accordingly, we find defendants 

who plead guilty may assert an actual innocence claim under the Act. Shaw, 2019 

IL App (1st) 152994, ¶ 54; People v. Knight, 405 Ill. App. 3d 461, 472 (2010). 

¶ 42 Despite the State’s contentions, we do not believe our decision will diminish its 

motivation to engage in plea negotiations, nor does it ignore the interests of finality 

and certainty involving guilty pleas. An actual innocence claim is not unrestrained 

and still must be proven. This hurdle has proven to be difficult for defendants, and 

a successful claim of innocence is rare. See People v. Coleman, 2013 IL 113307, 

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¶ 94. As such, we find the State’s interests and policy concerns are more 

appropriately accounted for and protected by the standard applicable to actual 

innocence claims involving defendants who plead guilty. 

¶ 43 Defendant argues that this court should apply the standard expounded by 

Washington, which requires “supporting evidence be new, material, noncumulative 

and, most importantly, of such conclusive character as would probably change the 

result on retrial.” (Internal quotation marks omitted.) Washington, 171 Ill. 2d at 

489. While defendant contends Washington can be expanded to apply to defendants 

who plead guilty, he fails to specify such standard and only notes that the court 

should compare the new evidence against that in the plea proceedings below. 

¶ 44 The State asserts that guilty-plea defendants are incapable of meeting the 

Washington standard because the court cannot determine whether the new evidence 

would probably change the result on retrial where there was no trial. Instead, this 

court should adopt a standard of reliability similar to that in federal courts, Schlup 

v. Delo, 513 U.S. 298 (1995), particularly, that guilty-plea defendants must provide 

new forensic evidence. 

¶ 45 While defendant’s plea does not prevent him from asserting an actual innocence 

claim under the Act, it necessarily places the court in a different position than in 

Washington. Defendant’s waiver of a trial prevented the State from admitting the 

entirety of its evidence against defendant into the record, leaving only defendant’s 

admission of guilt and stipulation of the factual basis of the plea. Without the 

developed record produced by a trial, a court cannot determine whether the new 

evidence sufficiently undermines the evidence presented at trial such that it would 

probably change the result on retrial. The strict application of Washington is 

therefore impractical in cases where defendants plead guilty. 

¶ 46 Moreover, unlike a trial where reviewing courts often lack the insight on how 

the jury weighed the evidence in making its determination, the guilt of defendants 

who plead guilty is entirely dependent upon their admission of guilt and stipulation 

of the factual basis. Consequently, the court is left to weigh the new evidence 

against voluntary and knowing admission of guilt. 

¶ 47 A plea of guilty is a grave act that is not reversible at the defendant’s whim. 

Evans, 174 Ill. 2d at 326. Leave to withdraw a plea of guilty should not be granted 

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because defendant is now dissatisfied with the deal but “as required to correct a 

manifest injustice.” Id. 

¶ 48 Upon these considerations, the standard for actual innocence claims for guiltyplea defendants requires a more stringent standard than in Washington. See People 

v. Schneider, 25 P.3d 755, 761 (Colo. 2001) (en banc). Yet, the standard must be 

less than redeciding the defendant’s guilt, as that is not the determination the court 

must make. See People v. Molstad, 101 Ill. 2d 128, 136 (1984) (“this does not mean 

that [the defendant] is innocent, merely that all of the facts and surrounding 

circumstances *** should be scrutinized more closely to determine [his] guilt or 

innocence”); Coleman, 2013 IL 113307, ¶ 97. “If it were, the remedy would be an 

acquittal, not a new trial.” Coleman, 2013 IL 113307, ¶ 97. 

¶ 49 We therefore find a successful actual innocence claim requires a defendant who 

pleads guilty to provide new, material, noncumulative evidence that clearly and 

convincingly demonstrates that a trial would probably result in acquittal. New 

means the evidence was discovered after the court accepted the plea and could not 

have been discovered earlier through the exercise of due diligence. Id. ¶ 96. This is 

a comprehensive approach where the court must determine whether the new 

evidence places the evidence presented in the underlying proceedings in a different 

light and “undercuts the court’s confidence in the factual correctness” of the 

conviction. Id. ¶ 97. 

¶ 50 This higher standard strikes an equitable balance between the defendant’s 

constitutional liberty interest in remaining free of undeserved punishment and the 

State’s interest in maintaining the finality and certainty of plea agreements, while 

vindicating the purpose of the criminal justice system to punish only the guilty. 

Because the evidence must be clear and convincing, the standard inherently 

requires the court to consider the evidence to be reliable.2 We therefore see no 

reason to further limit defendants who plead guilty by requiring them to support 

their petition with forensic evidence. 

2

We note that, while post-conviction relief requires the court to consider the new evidence to 

be reliable, such determination should be made at a third-stage evidentiary hearing, as all well-pled 

facts must be taken as true at the motion to dismiss stage. People v. Sanders, 2016 IL 118123, ¶ 42. 

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¶ 51 Having found that a defendant who pleads guilty may assert an actual innocence 

claim and having clarified the applicable standard, we must address the merits of 

defendant’s claim. In this case, defendant’s petition was denied after a third-stage 

evidentiary hearing. 725 ILCS 5/122-6 (West 2016). At this stage, the trial court 

acts as a fact-finder, making credibility determinations and weighing the evidence. 

English, 2013 IL 112890, ¶ 23. Accordingly, we review the court’s decision to deny 

relief for manifest error. Coleman, 2013 IL 113307, ¶ 98. Manifest error is 

“ ‘clearly evident, plain, and indisputable.’ ” Id. (quoting People v. Morgan, 212 

Ill. 2d 148, 155 (2004)). 

¶ 52 Although the circuit court lacked the guidance of this opinion regarding the 

applicable standard, it nevertheless found defendant did not meet the less stringent 

Washington standard. Defendant contends the trial court’s denial was manifestly 

erroneous because it based its credibility determination regarding Callaway on a 

mistake of law. He explains that, absent inconsistences or obfuscations, the court 

should follow Callaway’s undisputed testimony that he came forward based on his 

guilty conscience rather than question Callaway’s credibility based on the fact that 

Callaway and defendant were in prison together, because they had no control over 

where they were imprisoned. 

¶ 53 Based on our examination of the record, we cannot say that the trial judge’s 

decision to reject Callaway’s testimony was manifestly erroneous. Defendant’s 

innocent explanations for the trial court’s concerns regarding Callaway’s credibility 

are plausible, but plausibility is not the test on review. Morgan, 212 Ill. 2d at 161. 

We addressed only whether the new evidence was sufficiently compelling that a 

decision by the trial court to reject that evidence was manifestly erroneous. Id. 

¶ 54 We cannot say it was unreasonable for the court to question the truthfulness of 

Callaway, where he came forward only after being imprisoned and discussing the 

case with defendant. The trial court is in the best position to make this 

determination, as it had the benefit of observing Callaway’s demeanor during 

examination and assessing his testimony against the other evidence. Id. at 162. 

There is nothing in the record to undermine its judgment in this case. 

¶ 55 We therefore affirm the denial of defendant’s petition. 

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¶ 56 CONCLUSION 

¶ 57 In light of the rationale underlying Washington’s determination that an actual 

innocence claim asserts a violation of due process, a defendant whose conviction is 

the result of a guilty plea may assert an actual innocence claim under the Act. To 

obtain relief under such claim, a guilty-plea defendant must provide new, material, 

noncumulative evidence that clearly and convincingly demonstrates that a trial 

would probably result in acquittal. Because the record provides no reason to depart 

from the trial court’s determination that defendant’s new evidence was not credible, 

we affirm the dismissal of defendant’s petition. 

¶ 58 Affirmed. 

¶ 59 JUSTICE MICHAEL J. BURKE, specially concurring: 

¶ 60 I agree with my colleagues that defendants who plead guilty should not be 

completely foreclosed from bringing actual innocence claims. I further agree that 

defendant’s petition was properly denied on the merits. I write separately because 

I believe that the standard for such claims should be higher than the one adopted by 

the majority. I would also give trial judges more leeway to dispose of such cases at 

the leave-to-file stage. 

¶ 61 The State correctly notes that there are compelling reasons why defendants who 

plead guilty should not be able to bring postconviction actual innocence claims. 

First, by pleading guilty, a defendant relinquishes the constitutional protections 

intended to prevent the conviction of innocent people (see Boykin v. Alabama, 395 

U.S. 238, 242-43 (1969)), including the right to hold the State to its burden of proof 

beyond a reasonable doubt (Hill v. Cowan, 202 Ill. 2d 151, 154 (2002)). Second, 

the State offers significant concessions to defendants who plead guilty. The State 

is motivated to do so because of (1) the efficiency of forgoing a full criminal trial 

and (2) the certainty and finality of a guilty plea. Third, by entering into a plea 

agreement, the State loses its opportunity to present its full case and instead 

provides only a summary of the evidence sufficient to establish a factual basis for 

the pleas. See People v. Barker, 83 Ill. 2d 319, 327-28 (1980) (“the quantum of 

proof necessary to establish a factual basis for the plea is less than that necessary to 

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sustain a conviction after a full trial. [Citations.] All that is required to appear on 

the record is a basis from which the judge could reasonably reach the conclusion 

that the defendant actually committed the acts with the intent (if any) required to 

constitute the offense to which the defendant is pleading guilty.”). When a 

defendant returns to court years later claiming innocence, the State is forced to 

muster evidence that has potentially grown stale. As the Supreme Court of Colorado 

noted in People v. Schneider, 25 P.3d 755, 761 (Colo. 2001) (en banc), when a 

defendant pleads guilty, a trial court considering a postconviction claim of actual 

innocence is hampered in its assessment of defendant’s new evidence against what 

the State would have presented at the previous trial. 

¶ 62 Still, because we recognized in Washington that the “[i]mprisonment of the 

innocent would *** be so conscience shocking as to trigger operation of substantive 

due process” (People v. Washington, 171 Ill. 2d 475, 487-88 (1996)) and that 

ignoring such claims would be fundamentally unfair as a matter of procedural due 

process (id. at 487), I would not completely foreclose guilty plea defendants from 

bringing postconviction claims of actual innocence. For all the policy reasons set 

forth above, however, the standard for doing so should be higher than that for 

defendants convicted after a trial. I agree with the Schneider court that “there must 

be some consequence attached to the decision to plead guilty.” Schneider, 25 P.3d 

at 761. 

¶ 63 The standard that the majority settles on is that a defendant who pleads guilty 

must provide “new, material, noncumulative evidence that clearly and convincingly 

demonstrates that a trial would probably result in acquittal.” (Emphasis added.) 

Supra ¶ 49. Other states have adopted a clear and convincing evidence standard for 

actual innocence claims by guilty plea defendants but have worded it differently. 

For instance, both Iowa and Texas require that the defendant show by clear and 

convincing evidence that no reasonable factfinder could find the defendant guilty. 

See Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018) (“the applicant must show 

by clear and convincing evidence that, despite the evidence of guilt supporting the 

conviction, no reasonable fact finder could convict the applicant of the crimes for 

which the sentencing court found the applicant guilty in light of all the evidence, 

including the newly discovered evidence”); Ex parte Tuley, 109 S.W.3d 388, 392 

(Tex. Crim. App. 2002) (standard for freestanding innocence claims, whether after 

trial or guilty plea is that the applicant must show “by clear and convincing 

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evidence that, despite the evidence of guilt that supports the conviction, no 

reasonable juror could have found the applicant guilty in light of the new 

evidence”). The majority’s “probably result in acquittal” language was also used 

by the Supreme Court of Colorado in Schneider. In that case, the court held that the 

defendant must show that the newly discovered evidence “would probably bring 

about a verdict of acquittal in a trial.” Schneider, 25 P.3d at 762. However, that is 

not all that Colorado requires. Schneider also requires that a guilty plea defendant 

show that “the charge(s) to which the defendant pleaded guilty were actually false 

or unfounded.” Id. The majority does not adopt this part of the test. If we are going 

to adopt the clear and convincing standard, I prefer the wording adopted by Iowa 

and Texas. Instead of merely requiring a defendant to show by clear and convincing 

evidence that the newly discovered evidence would probably result in an acquittal, 

I would require a showing by clear and convincing evidence that no reasonable 

factfinder could have convicted the defendant. 

¶ 64 Although the burden should be very high for a defendant who pleaded guilty, I 

do not agree with the State’s suggestion that the door should be left open only for 

those defendants who obtain forensic evidence pursuant to section 116-3 of Code 

of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2018)). Pursuant to this 

section, defendants who plead guilty or are convicted after a trial may move for 

fingerprint, Integrated Ballistic Identification System, or forensic DNA testing, 

under certain circumstances. I would not limit actual innocence claims to only those 

defendants who obtain evidence under this statute, because it is possible that a 

defendant could obtain other types of reliable evidence that are just as conclusive 

as to innocence. For instance, assume that a defendant obtains security camera 

footage that was not previously known to exist and that it shows someone else 

committing the crime for which he pleaded guilty. It would make no sense to 

foreclose an actual innocence claim for such a defendant simply because this 

powerful, conclusive evidence of innocence was not of the type listed in section 

116-3. 

¶ 65 I would, however, give trial courts the ability to deny leave to file successive 

petitions when defendants such as the present one have failed to set forth a colorable 

claim of actual innocence. The majority adopts the clear and convincing standard 

but never sets forth what standard a petitioner must meet at each stage of the 

proceedings. When a postconviction petitioner raises a freestanding claim of actual 

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innocence after being convicted in a trial, there are three distinct stages with 

different standards. At the leave-to-file stage, the standard is “whether the new 

evidence, if believed and not positively rebutted by the record, could lead to 

acquittal on retrial.” People v. Robinson, 2020 IL 123849, ¶ 60. At the second stage, 

where the State may move to dismiss the petition, the petitioner must make a 

substantial showing that it is more likely than not that no reasonable juror would 

have convicted the petitioner in light of the new evidence. People v. Sanders, 2016 

IL 118123 ¶¶ 24, 37. If a petitioner obtains an evidentiary hearing, then he must 

establish his actual innocence claim by a preponderance of the evidence. People v. 

Coleman, 2013 IL 113307, ¶ 92. The majority opinion raises the burden from 

preponderance of the evidence to clear and convincing evidence at the third stage 

but says nothing about the burden a petitioner must meet at the first two stages. If 

the majority means to adopt the watered-down Robinson standard for the leave-tofile stage, I cannot agree with that decision. As I argued in my dissent in Robinson, 

that standard has no foundation in this court’s case law, and it is so vague as to be 

virtually meaningless. See Robinson, 2020 IL 123849, ¶¶ 114-18 (Burke, J., 

dissenting, joined by Garman and Karmeier, JJ.). The last thing we should do is 

further expand that decision by applying its standard to defendants who pleaded 

guilty, as they should be held to a much higher burden. 

¶ 66 At the leave-to-file stage, I would use a standard similar to the one this court 

originally adopted for the leave-to-file stage when a petitioner raised a freestanding 

claim of actual innocence. In People v. Edwards, 2012 IL 111711, this court 

adopted a “no reasonable juror” standard for the leave-to-file stage of successive 

postconviction proceedings involving actual innocence claims. This court held that 

leave to file should be granted only “when the petitioner’s supporting 

documentation raises the probability that ‘it is more likely than not that no 

reasonable juror would have convicted him in the light of the new evidence.’ ” Id. 

¶ 24 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).3 Where it was clear that 

a petitioner had provided an affidavit that failed to meet this standard, courts were 

free to deny leave to file. See id. ¶¶ 39-40. The affidavit that defendant filed here 

3

In Robinson, 2020 IL 123849, this court simply ignored the fact that Edwards settled the 

standard for the leave-to-file stage of postconviction proceedings in which a petitioner alleges actual 

innocence. Overruling Edwards sub silentio, a majority of this court held that the standard is instead 

“whether the new evidence, if believed and not positively rebutted by the record, could lead to 

acquittal on retrial.” Id. ¶ 60. 

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was not sufficient to raise a probability that petitioner could establish by clear and 

convincing evidence that no reasonable factfinder would have convicted him, and 

therefore defendant never should have been granted leave to file. Defendant 

pleaded guilty to armed violence. The factual basis for the plea showed that a 

sawed-off shotgun and a Baggie of crack cocaine were found under a bed in a room 

witnesses saw the defendant enter after he fled from the police. The shotgun had 

defendant’s DNA on it, and defendant had a digital scale in his pocket. Thus, the 

prison affidavit defendant obtained from Callaway, who claimed that the drugs 

were his and that defendant was unaware of them, was not conclusive evidence of 

defendant’s innocence and certainly could not have established by clear and 

convincing evidence that no reasonable factfinder would have convicted defendant 

in light of that evidence. Thus, defendant never should have been granted leave to 

file his petition. 

¶ 67 The majority explains that reliability determinations are to be made at a thirdstage evidentiary hearing. Supra ¶ 50 n.2. That said, defendant’s petition could have 

been dismissed without the court making a reliability determination. Prior to this 

court’s decision in Robinson, it was clear that a trial court could dismiss a petition 

when the supporting affidavits were not conclusive evidence of innocence but 

merely would have given the factfinder conflicting evidence to consider. See 

Sanders, 2016 IL 118123. In Sanders, this court acknowledged that reliability 

determinations can only be made at a third-stage evidentiary hearing and that at the 

previous stages all well-pleaded allegations not positively rebutted by the record 

must be taken as true. Id. ¶¶ 41-42. Nevertheless, this court affirmed the dismissal 

of the petition without an evidentiary hearing when the petitioner’s affidavits would 

have merely added conflicting evidence for the jury to consider. Id. ¶¶ 52-53. 

¶ 68 As I explained in my dissent in Robinson, the only way that Sanders makes 

sense is that if what is meant by “taking the affidavits as true” is that we assume 

that, had the affiants been called to testify, they would have testified under oath 

consistently with their affidavits. See Robinson, 2020 IL 123849, ¶ 110 (Burke, J., 

dissenting, joined by Garman and Karmeier, JJ.). If this court had been forced to 

assume in Sanders that the factfinder would have believed the statements in the 

affidavits, then this court would have had no choice but to reverse the lower courts 

and remand for an evidentiary hearing. Id. But this is not what the court did. The 

Sanders court affirmed the dismissal of the petition on the basis that the testimony 

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of the affiants would have merely given the jury conflicting evidence to consider. 

Sanders, 2016 IL 118123, ¶¶ 52-53. As the appellate court correctly explained in 

People v. Simms, 2020 IL App (1st) 161067, ¶ 42:4 

“In Sanders, the codefendant stated he was alone when he committed the 

offense and that his prior testimony identifying the petitioner as participating in 

the crime was not true. [Sanders, 2016 IL 118123,] ¶ 16. A witness who 

provided an affidavit in support of the successive postconviction petition 

averred that the codefendant acted alone at all times when she was observing 

the commission of part of the offense (aggravated kidnapping). Id. ¶ 15. If all 

that were required was to take the recantation and averment as true and would 

be believed by a reasonable juror and ask if the defendant could still be 

convicted, then the result of the petitioner’s trial in Sanders would have to have 

been different: based on that “true” evidence Sanders did not commit 

aggravated kidnapping and did not participate in the murder. The only 

explanation for our supreme court’s holding is that more is required of courts 

considering claims of actual innocence.” Simms, 2020 IL App (1st) 161067, 

¶ 42. 

See also People v. Jones, 2020 IL App (1st) 171760-U, ¶ 64 (“Following Sanders, 

we must determine whether the proposed new evidence would merely add 

conflicting or contrary evidence to the evidence heard at trial, even where, as in 

Sanders, the postconviction evidence includes statements that the defendant was 

not involved in the crime.” (Emphasis added.)); People v. Vargas, 2020 IL App 

(1st) 172568-U, ¶ 43 (same).5 

¶ 69 As I pointed out in my Robinson dissent, in certain circumstances this court has 

indeed used “taken as true” to mean that we presume that the affiant would have 

testified in a matter consistent with their affidavits. See Robinson, 2020 IL 123849, 

¶ 110 (Burke, J., dissenting, joined by Garman and Karmeier, JJ.) (taking affidavits 

4

After deciding Robinson, this court denied leave to appeal in Simms but vacated the decision 

and remanded for reconsideration in light of Robinson. People v. Simms, No. 126080 (Ill. Sept. 30, 

2020). 

5

I cite these two Rule 23 orders not as precedent but merely to show that multiple panels of the 

appellate court have read Sanders the same way with respect to what it means to take an affidavit 

as true. 

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as true means that “ ‘we will presume that had defense counsel called these 

witnesses, they would have testified in a manner consistent with their affidavits’ ” 

(emphasis omitted) (quoting People v. Coleman, 183 Ill. 2d 366, 403 (1998))). 

Despite being confronted with this citation, the Robinson majority persisted in 

making the incorrect statement that this court had “never held, or even suggested,” 

that the taken-as-true requirement means that an “affiant would testify consistently 

with the content of the affidavit.” Id. ¶ 59 n.2 (majority opinion). Thus, not only 

has the court said precisely what the Robinson majority said it had not, Sanders 

only makes sense if the court were using that definition of “taken as true.” 

¶ 70 The Robinson majority’s wholly unconvincing explanation of how its result was 

consistent with Sanders is that Sanders was decided in a “significantly different 

procedural context” because it was a second stage case and the petitioner faces a 

heavier burden at the second stage. Id. ¶ 59. But, as I pointed out in my dissent, this 

is a distinction without a difference because the “taken as true” requirement applies 

equally at the leave-to-file and second stages. See id. at 106 (Burke, J., dissenting, 

joined by Garman and Karmeier, JJ.); see also People v. Brown, 2017 IL App (1st) 

150132, ¶ 61 n.2, vacated on other grounds and appeal dismissed, No. 123252 (Ill. 

Jan. 24, 2019) (“Although we recognize that Sanders arose from a slightly different 

procedural posture than this case, in that it was an appeal from a second-stage 

dismissal of a successive postconviction petition ***, the requirement that all wellpleaded factual allegations are taken as true applies equally in this case as in 

Sanders, and it is thus helpful to our analysis of this issue.”). 

¶ 71 The Robinson majority failed to explain how raising a petitioner’s burden from 

a “probability” to a “substantial showing” changes the meaning of what it means to 

take an affidavit as true. And the reason that explanation was lacking is obvious: 

there is no explanation. Nevertheless, Robinson left Sanders in place and therefore 

the state of Illinois law is that, at the leave-to-file stage of postconviction 

proceedings, a court must presume that a reasonable juror would believe the 

testimony set forth in the new affidavits (Robinson), but at the second stage a court 

does not have to presume that a reasonable juror would believe the evidence and 

may dismiss the petition if the new affidavits are not conclusive and would merely 

add conflicting evidence to what the jury heard (Sanders). 

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¶ 72 Because we have held that a defendant who pleads guilty must be held to a 

higher burden when bringing a postconviction claim of actual innocence, I would 

apply the Edwards/Sanders framework at the leave-to-file stage of such cases and 

limit the Robinson standard to actual innocence claims brought by defendants who 

were convicted after a trial. Here, the affidavit defendant obtained from Callaway 

did not raise a probability that defendant could establish by clear and convincing 

evidence that no reasonable fact finder would have found him guilty. The affidavit 

was far from conclusive and would have merely given a reasonable fact finder 

conflicting evidence to consider. This is not a case in which identity was an issue. 

Callaway claimed that defendant had no knowledge of the drugs, but a reasonable 

factfinder could easily conclude otherwise when the drugs were found in a room 

where defendant was spotted entering upon fleeing from the police, the drugs were 

under a bed right next to a sawed-off shotgun that had defendant’s DNA on it, and 

defendant had a digital scale in his pocket. Given the factual basis of defendant’s 

plea, it is difficult to imagine any evidence that defendant could muster that would 

establish an actual innocence claim. I agree with my colleagues that the trial court’s 

denial of this petition was the correct decision, but I also do not believe that this 

petition should have advanced beyond the leave-to-file stage. 

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