NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

2023 IL App (4th) 220497-U

Order filed October 13, 2023

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

2023 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

LAMONT G. BARCLAY, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 11th Judicial Circuit, 

McLean County, Illinois, 

Appeal No. 4-22-0497 

Circuit No. 19-CF-72 

Honorable 

William A. Yoder, 

Judge, Presiding. 

____________________________________________________________________________

JUSTICE DAVENPORT1 delivered the judgment of the court. 

Justice Brennan concurred in the judgment.

Justice McDade dissented.

____________________________________________________________________________

ORDER

¶ 1 Held: Posttrial counsel did not provide ineffective assistance for failing to attach 

affidavits to defendant’s motion for a new trial. 

¶ 2 A jury convicted defendant, Lamont G. Barclay, of five counts of predatory criminal sexual 

assault of a child and two counts of sexual exploitation of a child. The trial court sentenced him to 

1

This appeal was filed in the Fourth District. The supreme court, in the exercise of its 

administrative and supervisory authority, transferred the matter to the Third District for decision. Ill. S. 

Ct., M.R. 31650 (Feb. 6, 2020).
2 

a total of 128 years’ imprisonment. On appeal, defendant argues his posttrial counsel provided 

ineffective assistance by failing to include affidavits to support the factual assertions in his motion 

for new trial, rendering it legally insufficient. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged by indictment with five counts of predatory criminal sexual assault 

of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)) and two counts of sexual exploitation of a child 

(id. § 11-9.1(a)(1), (a-5)). The charges alleged defendant engaged in sexual conduct with T.P., his 

minor stepdaughter. Following a jury trial, defendant was found guilty on all counts. After the 

trial, defendant replaced his appointed public defender with private counsel, who filed a motion 

for new trial. The motion argued ineffective assistance of trial counsel and asserted facts not 

established at trial. The motion did not include any affidavits to support the newly asserted facts. 

¶ 5 During the hearing, posttrial counsel presented arguments for each alleged error by trial 

counsel as set forth in the motion. Several of the arguments contended trial counsel failed to 

conduct a proper investigation that would have provided evidence to impeach T.P.’s trial 

testimony. One such argument included the factual assertion that interviews with defendant; T.P.’s 

mother and defendant’s wife, Michelle C.-B.; and T.P.’s maternal grandmother would have shown 

T.P.’s bed was on a frame, contradicting T.P.’s testimony that her bed was on the floor. Another 

argument claimed Michelle could have rebutted T.P.’s testimony that defendant led T.P. into his 

bedroom where T.P. witnessed him using a speculum on Michelle, who was tied down and 

blindfolded. The argument asserted if Michelle had been asked about the speculum on crossexamination, she would have testified a speculum was only used twice while engaging in sexual 

conduct with defendant and on both occasions she was not tied down and the children were not 

home. 
3 

¶ 6 In denying the motion, the court addressed the substantive issues raised by posttrial counsel 

by summarizing key details of each witness’s testimony at trial, including the testimony of T.P. 

and Michelle. The court concluded trial counsel did not provide ineffective assistance, finding the

arguments raised in the motion ultimately amounted to trial strategy. The court also stated T.P.’s 

testimony was credible and the evidence in the case was not “closely balanced,” noting the jury 

returned a guilty verdict on all counts in approximately one hour. 

¶ 7 The trial court sentenced defendant to a total of 128 years’ imprisonment, consisting of five 

consecutive 25-year terms for each of the predatory criminal sexual assault of a child convictions 

to be served consecutively to concurrent terms of 3 years’ imprisonment for the two sexual 

exploitation convictions. The court denied defendant’s motion to reconsider sentence, and this 

appeal followed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, defendant argues posttrial counsel’s performance was deficient because counsel 

failed to attach required affidavits to support the factual assertions contained in his motion for new 

trial. Defendant further asserts his motion was legally insufficient due to this failure and if the 

affidavits had been attached, a reasonable probability exists that the motion may have been granted.

“[T]he proper standard for attorney performance is that of reasonably effective assistance.” 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the two-pronged test set forth in 

Strickland, to prevail on an ineffective-assistance claim a defendant must show (1) counsel’s 

performance fell below an objective standard of reasonableness, and (2) the deficient performance

prejudiced defendant, meaning absent the deficient performance, there is a reasonable probability

that the outcome of the proceeding would have been different. People v. Jackson, 2020 IL 124112, 

¶ 90. Failure to establish either prong of this test is fatal to the claim. Id. We review de novo
4 

whether counsel’s omission of the affidavits constitutes ineffective assistance. People v. Davis, 

353 Ill. App. 3d 790, 794 (2004).

¶ 10 Defendant meets the first prong under Strickland, as “[i]t is generally true that where a 

defendant seeks a new trial on the basis of factual allegations not in the record, the motion must 

be accompanied by a sworn affidavit.” People v. Brandon, 157 Ill. App. 3d 835, 845 (1987); see 

also People v. Walton, 240 Ill. App. 3d 49, 60 (1992) (the court may deny, without a hearing, a 

motion for new trial based on unsupported factual allegations). However, we cannot find posttrial 

counsel’s error in failing to attach the required affidavits prejudiced defendant. The circuit court 

could have properly dismissed defendant’s motion based on the lack of affidavits. See People v. 

Boyce, 51 Ill. App. 3d 549, 563 (1977); People v. Gray, 96 Ill. App. 3d 757, 762 (1981). Instead, 

the court overlooked the missing affidavits and considered the substance of the allegations. 

¶ 11 Although defendant contends numerous unattested-to factual assertions were made in the 

motion, we will only consider the two examples that counsel specifically argues in his brief on 

appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (argument must contain the contentions of 

the appellant, the reasons therefor, and the citation of authorities; points not argued in an opening 

brief are forfeited and shall not be raised in the reply brief, in oral argument, or in a petition for a 

rehearing). Defendant argued posttrial counsel could have (1) contradicted T.P.’s testimony that 

her bed was on the floor by eliciting testimony from other parties showing T.P.’s bed was on a 

frame, and (2) discredited T.P.’s claim she witnessed defendant use a speculum on Michelle by 

eliciting testimony from Michelle showing the speculum was not used under the circumstances 

T.P. described. Despite the lack of affidavits, those assertions were thoroughly argued by posttrial

counsel during the hearing and the court considered those arguments along with the supporting 

proposed evidence in denying defendant’s motion. Further, we note that whether T.P.’s bed was 
5 

on a frame or the floor is entirely inconsequential and any testimony from Michelle about the use 

of a speculum despite the alleged difference in circumstances would only lend credibility to T.P.’s 

claim that she saw defendant using a speculum on Michelle. These minor inconsistencies 

ultimately would not have affected the trial’s outcome. Therefore, defendant cannot establish a 

reasonable probability the result of the hearing would be any different if counsel had attached the 

affidavits. See People v. Lewis, 2022 IL 126705, ¶ 46 (defendant must “ ‘affirmatively prove’ ” 

prejudice by showing reasonable probability result would have been different absent counsel’s 

error) (quoting Strickland, 466 U.S. at 693). Without a showing of prejudice, defendant cannot 

satisfy the second prong of the Strickland test and his argument fails. 

¶ 12 III. CONCLUSION

¶ 13 For the reasons stated, we affirm the judgment of the circuit court of McLean County. 

¶ 15 Affirmed. 

¶ 16 JUSTICE McDADE, dissenting: 

¶ 17 I respectfully dissent from the majority’s decision. The majority finds that the circuit court 

“overlooked the missing affidavits and considered the substance of the allegations.” Supra ¶ 10. 

However, I would find that this “hearing” was illusory. The court could not have held a full and 

fair hearing on the merits without the necessary affidavits to provide it with sworn facts to support 

the contentions. See Boyce, 51 Ill. App. 3d at 563 (allegations of a motion are not evidence of the 

grounds raised and are facially insufficient absent supporting affidavits). The court considered 

defendant’s contentions without evidence of their accuracy or truth and was free to accept or 

disregard what it chose. Thus, I would find that counsel’s failure to attach any affidavits to the

motion for a new trial did in fact prejudice defendant.
6 

¶ 18 Had counsel supported the motion with affidavits, the court could have held a proper

hearing, in which it considered the affidavits and any other new evidence presented before

rendering its decision. The motion was based on facts not elicited at trial. Because counsel failed 

to prove any of the factual assertions in the motion, it never had a chance of being granted. 

However, had counsel properly supported the factual assertions, there is a reasonable probability 

that the outcome of the reconsideration motion hearing may have been different. 

¶ 19 Based on the foregoing, I would find that posttrial counsel was ineffective and remand for 

new proceedings on the posttrial motion.