201 5 IL App ( 3d ) 13 0 489 Opinion filed October 16, 2015

_____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2015 THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff

- Appellee, ) ) v. ) ) C ORRIE WALLACE , ) ) Defendant -Appellant. ) Appeal from the Circuit Court of the 12 th Judicial Circuit, Will County , Illinois

. Appeal No. 3-13-0489 Circuit No. 06- CF -536

Honorable Daniel J. Rozak , Judge, Presiding.

_____________________________________________________________________________ JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice s O'Brien and Wright concurred in the judgment and opinion.

O PINION ¶ 1 In October 2008, a Will County jury convicted defendant, Corrie Wallace, of first- degree murder (720 ILCS 5/9- 1(a)(1) , (a)(2) (West 2006 )) and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)). The court sentenced defendant to 70 years for first

- degre e murder and 18 years for aggravated battery to be served consecutively . Defendant subsequently raised nine issues on direct appeal; this court affirmed his conviction and sentences

. People v. Wallace , 2011 IL App (3d) 090500- U. In May 2013, d efendant filed a postconviction petition, which the trial court dismissed as frivolous and patently without merit. Defendant appeals the dismissal of his postconviction petition arguing: (1) he set forth an arguable claim of actual2 innocence; and (2) he stated th e gist of an ineffective assistance of counsel claim. We disagree and affirm the trial court’s summary dismissal of defendant’s postconviction petition. ¶ 2 BACKGROUND ¶ 3 We provide a summary of the evidence presented at trial here. For a more detailed

ac count of the evidence, reference our previous decision. Id. ¶¶ 6-31. ¶ 4 The evidence at defendant’s trial showed that the victim in this case, Hallie Parish, was in a vehicle with three other people when he was shot and killed by the defendant in March 2006. Most notably, among those present in the vehicle with the victim were Joe Williams and Charles
Mc Afee. Neither Williams nor McAfee could identify the shooter. Williams was also shot during the incident, but survived. Williams later claimed he receive d an apology from a person claiming to be the shooter, though Williams refused to identify that person other than to say it

was not the defendant. The trial court would not allow Williams to testify about this alleged conversation at trial. We note this issue was raised by defendant on direct appeal, but deemed a forfeited issue by this court. Id. ¶¶ 54-56. ¶ 5 Tonya Dandridge ’s and Zatella Bridge ’s testi mony at trial established that defendant shot the victim while wearing a mask , immediately ra n away from the scene, walked back up to the victim shortly thereafter without the mask or gun, and taunt ed him before walking away again.
T heir t estimony also established that defendant ran away from the scene using the same path he used to approach before the shooting, and return ed by way of the same path once again when he

taunt ed the victim . Police later discovered that this path led to the home of Tarnisha Davenport. ¶ 6 Officer Stubler, the first responding officer, testified that he overheard peop le identifying defendant as the shooter while he was protecting the crime scene in the immediate aftermath of the shooting. Stubler located defendant and detained him shortly thereafter behind Davenport’s3 residence. Defendant matched the description of the shooter (in build as well as clothing) as provided by witnesses on the scene that could not identify defendant. Defendant was told he was under arrest and transported from the crime scene to the police department approximately 45 minutes after being detained by Officer Stubler

. ¶ 7 When arrested, defendant possessed a key to Davenport’s home. In Davenport’s home, police located a mask (described by witn esses as being worn by the shooter) and ammunition later determined to have previously been chambered in the same gun used in the shooting. Defendant’s hands later tested positive for gunshot residue and his DNA was on the mask recovered from Davenport’s home. ¶ 8 In May 2013, d efendant filed pro se a 207-page petition for relief under the PostConvict ion Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2012)). The trial court summaril y dismissed defendant’s petition as frivolous and patently without merit under section 122- 2.1(a)(2) of the Post-Conviction Hearing Act (725 ILCS 5/122 -2.1(a)(2) (West 2012)). Defendant’s petition asserted many claims , only two of which he appeals now : a claim of actual innocence and an ineffective assistance of counsel claim

. ¶ 9 Defendant’s actual innocence claim is supported by affidavits from Darius Foster and Adrian Ellis . Foster claims he saw Conley Ratcliffe

— who testified at defendant’s trial —running away from the area of the shooting with a gun in his hand shortly after he hear d the gunshots.
Foster als o claims he walked up to the vehicle shortly after the victim had been shot, along with the defendant and other unidentified individuals . Ellis , on the other hand, avers in his affidavit that while he was incarcerated with Ratcliffe sometime in 2008, Ratcliffe confessed to him that he was the shooter . Ellis also claims Ratcliffe stated he previously apologized to Williams for4 shooting him on accident. Defendant asserts these affidavits constitute newly discovered evidence that support his claim of actual innocence. ¶ 10 D efendant argues in his ineffective assistance of counsel claim that his trial counsel should have filed a motion to suppress his arrest at the crime scene , as it was not based on probable cause . Defendant further asserts appellate counsel was equally ineffective for not arguing the same issue on appeal. Defendant a lleges his actual innocence and ineffective assistance of counsel claim s should be allowed to proceed to the second stage of postconviction proceedings

. ¶ 11 A NALYSIS ¶ 12 A t the first stage, a postconviction petition may be summarily dismisse d only if it is “frivolous” or “ patently without merit. ” Id. Appellate review of a first -stage postconviction petition’s summary dismissal is de novo

. People v. Coleman , 183 Ill. 2d 366, 388-89 (1998). Hodges , 234 Ill. 2d 1, 16 (2009) ; People v. Allen , 2015 IL 113135, ¶ 25. At the first stage of a postconviction proceeding, we mu st determine w hether the petition sets forth the “gist” of a constitutional claim. People v. Boclair , 202 Ill. 2d 89, 99-100 (2002). If we determine defendant’s pleadings meet the minimum requirements , the petition proceeds to the second stage. 725 ILCS 5/122-2.1(b) (West 2012). The defendant, however, has the burden of establishing he has suffered a substantial deprivation of a constitutional right. People v. Waldrop , 353 Ill. App. 3d 244, 249 (2004). ¶ 13 I. Defendant’s Actual Innocence Claim ¶ 14 A postconviction actual innocence claim is limited to arguments based on newly discovered evidence. People v. Ortiz , 235 Ill. 2d 319, 333 (2009). Courts should grant relief on this basis only when the petitioner’s argument is supported by evidence that is new, material,5 noncumulative, and of such a conclusive character that it would likely change the result on retrial. People v. Coleman , 2013 IL 113307, ¶ 84. Courts rarely grant postconviction petitions based on claims of actual innocence as the standard is “extraordinarily difficult to meet.” Id. ¶ 94. ¶ 15 Defendant argues that the Foster and Ellis affidavits each set forth a colorable claim of actual innocence. Specifically, defendant asserts it is “at least arguable” both affidavits contain evidence that is newly discovered. In so doing, defense counsel asserts there is no proof that defendant knew Foster was on the scene in the aftermath of the shooting, or th at defendant could have known about Rat cliffe’s confession to Ell is prior to trial. The se argument s are unavailing as they are based on ind isputably meritless legal theories

. ¶ 16 A. Foster ’s Affidavit ¶ 17 Newly discovered evidence is evi dence which was not available at defendant’s trial and which defendant could not have discovered sooner through the exercise of due diligence. Id. ¶ 96. Furthermore, a claim of actual innocence does not merely question the defendant’s guilt, but is so conclusive as to be capable of completely exonerating th e defendant. People v. Savory , 309 Ill. App. 3d 408, 414-15 (1999); People v. Coleman , 2013 IL 113307, ¶ 96. Defendant’s failure to state a free

- standing claim of actual innocence can fail as a matter of law. People v. Edwards , 2012 IL 111711, ¶¶ 31, 36-37. ¶ 18 Here, defendant’s claim of actual innocence buttressed by Foster’s affidavit fails as a matter of law. Defendant’s argument ignores the due diligence requirement of newly discovered evidence and relies heavily on the premise that if there is no proof defendant knew of the evidence prior to trial, his discovery of that information afterward renders the information newly discovered. Defense counsel cites no case law for this proposition, in violation of s upreme court6 Rule 341(h)(7), and theref ore forfeits the argument. Ill. S. Ct. R. 341 (h)(7) (eff. Feb. 6, 2013);

s ee People v. Clinton , 397 Ill. App. 3d 215, 223-24 (2009). ¶ 19 Moreover, defendant’s claim is explicitly contradicted by the record. By d efendant ’s own admission, he provided his tri al counsel with Foster’s name and contact information as a potential witness in preparation for trial. T his is prima facie evidence that defendant did know Foster was in the area and a potential witness to the incident. That defendant did not know the

co ntent of Foster’s alleged observations does not render its recent revelation newly discovered. People v. Montes , 2015 IL App (2d) 140485, ¶ 24. ¶ 20 E ven if Foster’s affidavit were considered newly discovered evidence, it does not conclusively support defendant’s claim of actual innocence. Accepting the contents of Foster’s affidavit as true, Foster can not conclusively prove defendant was not the shooter. As the State highlights, Ratcliffe could have been running away from the scene with the gun used by defendant. Thus, w e find the Foster affidavit is insufficient as a matter of law to support a claim of actual innocence. ¶ 21 B. Ellis ’s A ffidavit ¶ 22 Generally, evidence is not considered “newly discovered” such that it ca n support a postconviction petition for relief based on actual innocence, when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative. Id. ¶ 23 The record establishes that Williams, the other victim of the shooting , testified at trial and was prohibited from asserting that a person he refused to identify was the shooter. McAfee testi fied at trial as well. Prior to his testimony, the State argued several mo tions in limine to block specific portions of McAfee’s testimony. On the record, the State argued that McAfee7 should not be allowed to testify that Williams revealed to him that Ratcliffe w as the one who apologized to Williams for shooting him in the arm. T he defense ultimately conceded such testimony was inadmissible hearsay , and McAfee did not aver such statements during his testimony. ¶ 24 S hortly after McAfee testified, Ratcliffe took the stand and the defense chose not to ask him about his alleged statements to Williams. The refore, the defense theory that Ratcliffe was the shooter—and not defendant— was available to defendant at trial . The defense cross

examined Ratcliffe, while the record demo nstrates they were aware Ratcliffe had allegedly admitted to Williams he was the shooter. Thus, defendant’s actual innocence claim, as supported by the Ellis affidavit, is not based on newly discovered evidence. ¶ 25 Furthermore, t estimony by Ellis regarding Ratcliffe’ s alleged confession is hearsay, which cannot be the basis of a defendant’s postconviction petition. People v. Coleman , 2012 IL App (4th) 110463, ¶ 55. Generally, hearsay is insufficient to support a postconviction petition, particularly when there is no explanation why an affidavit from the declarant is unavailable. 725 ILCS 5/122-2 (West 2012); People v. Coleman , 2012 IL App (4th) 110463, ¶ 55. In this case, defendant does not explain why Ratcliffe (the declarant ) is unav ailable and ignores the fact that Ratcliffe already testified at defendant ’ s trial and therefore actually was available

. ¶ 26 Defendant counters that the Illinois S upreme Court recently rejected the argument that evidence need s to be admissible during the first stage of postconviction proceedings in People v. Allen , 2015 IL 113135. The majority in Allen , however, stated it is sufficient for a postconviction petitioner to provide “substantive evidentiary content” in support of a claim supported by “ ‘other evidence, ’ ” not an affidavit

. Id. ¶ 37.8 ¶ 27 We find that Allen speaks to the procedural requirements or defects of a defendant’s postconviction petition. In Allen , at issue was the legal creation of defendant’s supporting aff idavit, which was procedurally insufficient. Id. ¶ 2. That is not at issue in the case sub judice

. The substantive requirements of affidavits in postconviction petitions (in this case the status of the averred content as newly discovered evidence or admissible evidence) remains unchanged in the wake of Allen

. ¶ 28 Inadmissible hearsay cannot constitute substantive evidence by any definition . We cannot believe the supreme court in Allen meant for any petitioner ’ s claim to survive the relatively abbreviated review of first -stage postconviction proceedings without regard for the substance of the supporting evidence. In fact, t he majority explicitly rejected an overly broad in terpretation of its ruling in response to direct criticism from the dissent. Id. ¶ 38. ¶ 29 The trial court would not let Williams testify that he was given an apology by an anonymous person claiming to be the real shooter . Nor would it let McAffe testify that Williams told him that that person was Ratcliffe . We now have another declarant offering the same information. The information is still inadmissible hearsay , as already ruled upon by the trial court, and substantively cannot support a post conviction petition

— even in the first stage . Thus, we find the Ellis affidavit is insufficient as a matter of law to support a claim of actual innocence. ¶ 30 II. Defendant’s Ineffective Assistance o f Counsel Claim ¶ 31 Lastly, d efendant argues the trial court erred by dismissing his claims of ineffective assistance of counsel. Defendant asserts his trial counsel was ineffective for failing to file a motion to quash hi s arrest and suppress evidence. Defendant also contends his appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness for this same reason on dire ct9 appeal. The State contends that probable cause existed at the time of arrest and any motion filed by the defense to quash defendant’ s arrest would have been futile. ¶ 32 Again, to survive first- stage dismissal of a postconviction petition, a pro se petit ioner need only present the “g ist” of a constitutional claim. People v. English , 353 Ill. App. 3d 337, 339 (2004). Postconviction claim s of ineffective assistance of counsel must allege facts suff icient to prove both prongs under Strickland in order to s ucceed : (1) that counsel’ s performance fell below an objective standard of reasonableness ; and (2) tha t the defendant was substantially prejudiced as a result

. P eople v. Gale , 376 Ill. App . 3d 344, 351 (2007); Strickland v. Washington , 466 U.S. 668 (1984). ¶ 33 Trial counsel and appellate counsel are held to the same standard in a Strickland analysis

. People v. Tenner , 175 Ill. 2d 372, 378 (1997); People v. Richardson , 189 Ill. 2d 401, 412 (2000). On appeal, substantial prejudice is not demonstrated by enu merating the issues appellate counsel did not brief, as appellate counsel is not required to brief every possible issue. People v. Coleman , 168 Ill. 2d 509, 523 (1995). Consequently, if defendant’s claim of ineffective assistance of trial counsel fails the deficiency prong of Strickland , appellate counsel can not be found def icient for failing to address the same issue on appeal. Id. ¶ 34 Defendant alleges the police did not have probable cause to arrest him when Officer Stubler placed him in handcuffs. From our review of the record, t his is likely true. The continuation of defendant’s argument, however—that defendant was therefore unconstitutionally arrested without probable cause, in violation of the fourth amendment— is patently false. In making this argument, defendant makes two assumptions that are legally inaccurate and factually contradicted by the record: (1) that defendant was under arrest when Officer Stubler placed him in handcuffs; and (2) that Officer Stubler ’s knowledge neede d to be the sole basis for the10 probable cause support ing the decision to arrest the defendant . Absent these as sumptions, defendant’s argument falls apart

. ¶ 35 W e note again that the record makes clear the defendant was detained at the crime scene for approximately 45 minutes before he was placed under arrest and transported to the police station. Shortly before transport, defendant was informed that he was u nder arrest at that time , rather than detained. The legal distinction between detent ion and arrest is significant . A n arrest requires probable cause, while temporary detention need only be supported by reasonable suspicion. People v. Luedemann , 222 Ill. 2d 530, 544 (2006). Detention based on reasonable suspicion is based on the totalit y of the circumstances, which factors in the seriousness of the crime; in this case a murder. People v. Easley , 288 Ill. App. 3d 487, 491-92 (1997). ¶ 36 After reviewing the record, we find that Offic e Stubler had reasonable suspicion to detain the defendant on scene and his subsequent arrest was supported by probable cause. Contra ry to defense counsel ’s assertions on appeal, the defendant was not placed under arrest by Officer Stubler solely be cause he overheard anonymous people make the accusation that defendant was the shooter. Officer Stubler’ s testimony at trial belies this assertion . In relevant part, Officer Stubler stated :

“ I made my way to where Mr. Wallace was in the back, took control of him and advised him he was being detained in reference to [ sic ] a suspect of that shooting.” Nowhere in Officer Stubler’ s testimony does he say that he arrested the defendant at that time. Police reports from other responding officers all clearly state that defendant was detained at the

scene before he was arrested.11 ¶ 37 D efendant was detained at the scene initially because yet

- to -be- identified people were stating that he was the shooter. This was the appropriate action under the circumstances supported by reasonable suspicion . No reasonably prudent officer would ignore this information.
R ather , th e appropriate course of action was to detain defendant to investigate further

. ¶ 38 Probable cause for arrest exists when facts known to an officer would lead a reasonably cautious person to believe th e arrestee committed a crime. People v. Wear , 229 Ill. 2d 545, 563- 64 (2008). Probable cause can be based on information provided by a third party, anonymous or identified, as long as it bears some indicia of reliability. People v. Adams , 131 Ill. 2d 387, 397 (1989). “Where officers are working together in investigating a crime, the knowledge of each constitutes the knowledge of all, and probable cause can be established from all the information collectively received by the officers.” People v. Ortiz , 355 Ill. App. 3d 1056, 1065 (2005). ¶ 39 Defendant’s subsequent arrest after a relatively brief detention was the result of a budding investigation that pointed to him as the culprit. Dandridge’ s testimony contains the following relevant inquiry by the St ate : “ MR. KNICK [ a ssistant State ’ s Attorney]: That day did you talk to the police at both the scene, at the Fairmont housing unit, and als o at the Joliet police station? MS. DANDRI D GE [w itness ] : Yes

. MR. KNICK: A nd when you talked – – were talking to the police there at the scene, what was going on? MS. DANDRIDGE : Everybody was outside just looking at everything that was going on.”12 Dandridge went on to say that she told the officer she was not comfortable speaking with the police at her home, and that the officer she spoke with suggested she speak to police later , at the station . Defense counsel on appeal emphasizes the latter portion of Dandridge’ s testimony, implying she said nothing of substance to officers on scene. This assumption, however, is contradicted by the record. ¶ 40 Detective Jackson responded promptly to the scene and immediately began interviewing witnesses. In describing his second intervie w with a witness, Detective Jackson documented the following in a report: “I traveled to 1514 Fairmount where Tonya Dandridge *** stated that shooter in the above mentioned matter was a subject known to her as ‘Choke’. It should be known that I have prior knowledge of ‘Choke’ being Corrie Wallace. At the time I obtained this information from Tonya Dandridge there were several onlookers in the Fairmount Housing Projects. Ms. Dandridge stated that she would feel more comfortable coming to the Jol iet Police Department giving this statement without so many onlookers and people observing the statement of her speaking with the police. I furnished Ms. Dandridge with my business card and stated when her children arrived home from school that it would b e okay to [ sic ] the Joliet Police Department. ” Hence, the police had probable cause to arrest defendant after they spoke with Dandridge, an eyewitness to the shooting, on scene.13 ¶ 41 Given the record before this court , it is apparent that d efense counsel’ s effo rts at trial to quash defendant’s arrest would have been futile. The testimony of the witnesses at trial, supplemented by police reports from investigating officers, establish that the police had probable cause to arrest defendant before tra nsporting him to the station. H ad defense counsel filed a motion to quash defendant’ s arrest , it wo uld have been denied. D efendant’ s detention on scene in the aftermath of a shooting for approximately 45 minutes was reasonable

. His eventual arrest

was s upported by probable cause. T ri al counsel’s subsequent decision not to file a motion to quash defendant’ s arrest was objectively reasonable as well

. Likewise, appellant counsel was not deficient for failing to rais e the same issue on direct appeal. As a result, defendant’ s ineffective assistance of counsel claims fail the first prong of the Strickland analysis. ¶ 42 Accordingly, w e affirm the trial court’s summary dismissal of defendant’s postconviction petition. ¶ 43 CONCLUSION ¶ 44 For the foregoing reasons, the judgment of the circuit cour t of Will County is affirmed. ¶ 45 Affirmed.