Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 04 CR 11843 Honorable Clayton J. Crane, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.
¶ 1 Defendant Reco Wilson appeals the summary dismissal of his pro se postconviction petition. On appeal, Wilson contends that his petition, supported by a signed and notarized affidavit of an alleged alibi witness, presents an arguable claim that trial counsel provided ineffective assistance where counsel failed to call that witness. Accordingly, Wilson contends that his petition should advance to the second-stage proceedings with appointment of counsel. For the reasons that follow, we reverse and remand for further postconviction proceedings.
¶ 2 BACKGROUND
¶ 3 In simultaneous but severed bench trials in 2008, Wilson and codefendant Marcel Milton were convicted of first degree murder in the shooting death of Deon Gardner. The State presented evidence that Milton fatally shot Gardner on March 22, 2004, during the course of an aggravated vehicular hijacking. Wilson was convicted on an accountability theory for calling Milton and informing him of the vehicle's location, knowing that Milton was armed with a gun.
¶ 4 On March 17 or 18, 2004, Wilson approached Sergio Wray on the street and asked if he could move a car for him. Wray agreed and Wilson then drove him to the area near 78th Street and South Shore Drive and handed him the keys to a silver Jeep Grand Cherokee that Wilson and Milton had stolen earlier from an Alamo car rental facility. Wilson told Wray to follow him in the Jeep to 77th Street and Yates Boulevard, but after losing sight of Wilson's vehicle, Wray decided to keep the Jeep.
¶ 5 On the evening of March 22, 2004, Wray was watching movies with Lamar Murphy and Deon Gardner at Murphy's apartment at 6926 South Michigan Avenue. Around 9 p.m., Wray asked Murphy to drive him and Gardner in the Jeep to Gardner's house to get more movies. As they pulled away from the curb, a white car traveling the wrong way on Michigan Avenue approached the Jeep and stopped. Milton exited the passenger's seat of the white car, pulled out a gun and ordered the men out of the Jeep. Milton fired two shots at Murphy and Wray as they exited through the driver's door and ran. Milton then got into the driver's seat and ordered Gardner, who was in the backseat, to exit the Jeep. As Gardner exited the vehicle, Milton shot him once in the back and then twice after he had fallen to the ground.
¶ 6 Evidence introduced at trial, including an inculpatory videotaped statement by Wilson,  showed that earlier that day Wilson saw the Jeep near 69th and Cottage Grove. Wilson contacted Milton on his cell phone and told Milton he was following the Jeep and that Milton should come with an extra set of keys to retrieve the vehicle. Wilson then called his cousin to give Milton a ride. Wilson followed the Jeep to 69th and Michigan where he observed the occupants exit the vehicle and enter a building. In the videotaped statement, Wilson acknowledged that he knew Milton carried a gun in such situations and admitted that he thought Milton would bring a gun to retrieve the Jeep. He also stated that when he later called Milton on his cell phone to tell him to hurry, Milton stated that he had his "blow on [him]." Wilson stated that a "blow" was a gun. According to Wilson's statement, he observed Milton's arrival in the Jeep and his initial two shots at Murphy and Wray. As Wilson drove away, he looked in his rearview mirror and observed Milton shoot Gardner once as he exited the Jeep, and twice as he lay on the ground.
¶ 7 Wilson testified at trial and, contrary to his videotaped statement, claimed that he did not observe Milton shoot Gardner. Wilson testified that he was with his girlfriend, Tiffany Taylor, and her children at a McDonald's when he saw the Jeep drive by. He stated that Taylor was with him in the car when he called Milton and drove to the area of 69th and Michigan, and that they left before Milton arrived. Over defense counsel's objections, Wilson admitted that he did not know where Taylor was during trial.
¶ 8 On appeal, appellate counsel filed a motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that there were no issues of merit on appeal. People v. Wilson, No. 1-08-2836 (2010) (unpublished order under Supreme Court Rule 23). In his pro se response, Wilson argued, inter alia, that trial counsel was ineffective for failing to call Taylor to testify despite his repeated requests for counsel to do so. Id. at 11. In affirming Wilson's conviction on appeal, this court rejected defendant's arguments regarding Taylor, concluding that defense counsel "made a conscious decision" not to call Taylor as a witness, which was a matter of trial strategy, generally immune from an ineffective assistance claim. Id. at 11-12.
¶ 9 Defendant subsequently filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Wilson's petition asserted that he was denied effective assistance of trial counsel because counsel failed to (1) assure that police had the proper paperwork to remove him from the county jail for questioning, (2) investigate the number of stolen cars and trucks in Wilson's neighborhood to negate law enforcement's stated reason for questioning Wilson, (3) interview or call Taylor as an alibi witness, and (4) move to sever Wilson's trial from Milton's. Wilson further claimed that he was convicted of an offense not charged in the indictment and was denied effective assistance of appellate counsel in his direct appeal.
¶ 10 Attached to Wilson's petition was a signed and notarized affidavit from Taylor. In the affidavit, Taylor attested that on March 22, 2004, she was with defendant from 4 p.m. until 11 p.m. At one point, Taylor, Wilson and their children went to a McDonald's restaurant at 79th and Phillips where Wilson observed the Jeep drive by and told her it was Milton's. As Taylor and Wilson followed the Jeep, Wilson contacted Milton on his cell phone and put it on speaker. Taylor heard Wilson tell Milton to come to 69th and Michigan and bring the extra set of keys for the Jeep. According to Taylor, she and Wilson left the area before Milton arrived.
¶ 11 The circuit court dismissed the petition, determining that all of the issues raised in Wilson's petition were barred by res judicata, having been raised and settled on direct appeal. The court determined that Wilson's claims had no arguable basis in law and that accordingly Wilson was not entitled to proceed to the second stage of ...