from the Circuit Court of McHenry County. No. 08-CF-562
Honorable Sharon L. Prather, Judge, Presiding.
PRESIDING JUSTICE BIRKETT delivered the judgment of the
court, with opinion. Justice Burke concurred in the judgment
and opinion. Justice McLaren dissented, with opinion.
BIRKETT PRESIDING JUSTICE
1 Defendant Justin Knapp was convicted of attempted first
degree murder (720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2008)),
two counts of aggravated battery (720 ILCS 5/12-4(b)(1),
(b)(8) (West 2008)) and mob action (720 ILCS 5/25-1(a)(1)
(West 2008)). The trial court sentenced defendant to 16 years
in the Illinois Department of Corrections on the attempted
first degree murder. This court affirmed defendant's
conviction in People v. Knapp, No. 2-09-0089 (2010)
(unpublished summary order under Illinois Supreme Court Rule
23(c)). On November 9, 2015, defendant filed a pro
se petition pursuant to the Post Conviction Hearing Act
(Act) (725 ILCS 5/122 et seq. (West 2014)). The
trial court summarily dismissed defendant's petition.
Defendant appeals from the summary dismissal. Because the
record positively rebuts defendant's claim of ineffective
assistance of trial counsel we affirm the summary dismissal
and assess statutory State's Attorney fees.
2 I. BACKGROUND
3 Our decision in Knapp I was a summary order. A
more detailed background is necessary to dispose of this
appeal. On July 3, 2008, defendant and his co-defendant, Luis
Rodriguez, were indicted for attempt first-degree murder, two
counts of aggravated battery and mob action in connection
with the June 10, 2008, stabbing of Jorge Avitia. The
State's theory was that the defendants were members of
the Nortenos 14 street gang and that the victim, Jorge
Avitia, was affiliated with a rival gang, the Latin Kings.
Prior to trial the State filed a motion in
limine to introduce gang evidence on the issue of
motive for the stabbing. The trial court deferred ruling on
the motion. The State requested that two of its witnesses,
Jorge Avitia and Andres Pedroza, be granted immunity
regarding underage drinking. Defense counsel filed a motion
to suppress a video-recorded statement defendant gave
following his June 10, 2008, arrest. The State agreed to the
suppression of the statement because defendant "asked
for an attorney right off the bat." Defense counsel
acknowledged that the recording was accurate in the event it
was coming "in for another matter."
4 A. The Trial
5 Timothy Schroeder, a firefighter/paramedic with the
Woodstock Fire Department, testified that at 5:24 a.m. on
June 10, 2008, he responded to the scene of a stabbing
outside an Aldi store in Woodstock. Police officers were
already at the scene when Schroeder arrived. The male victim,
Jorge Avitia, was on the ground and another male was standing
over him. Avitia's pupils did not respond to any kind of
stimuli, an early sign that his brain was beginning to shut
down. Avitia's clothes were removed, revealing that he
had multiple stab wounds to his body. After the wounds were
dressed, Avitia was provided advanced life support and
transported to the hospital.
6 Nineteen-year-old Andres Pedroza testified that he had been
friends with the defendant and Jorge Avitia since the third
grade. On June 10, 2008, at 2:00 a.m. Pedroza was at his
house in Crystal Lake along with defendant. Avitia came over
to Pedroza's house. A short time later Christian Saenz,
along with Luis Rodriguez, came over to Pedroza's house
to pick the others up and drive to Woodstock. Pedroza did not
know Luis Rodriguez, who sat in the passenger seat. On the
way to Woodstock the group stopped at apartments in Crystal
Lake. When the group arrived in Woodstock they went to a home
behind the Aldi store. The group entered the home and sat in
the living room. Christian Saenz left. Rodriguez and Avitia
began to argue. Defendant was seated on a couch next to
Pedroza. Pedroza heard Rodriguez say "F*** you,
George" to Avitia. Rodriguez also called Avitia a
"King killer." Pedroza testified that he guessed
this was a reference to a gang, the Latin Kings. He did not
know whether defendant was in a gang, but he knew defendant
had tattoos on his arm and face. Some of his tattoos had four
dots, which could be associated with the Nortenos, also known
as the Nortenos 14 street gang.
7 Pedroza testified that after hearing the argument he said,
"[l]et's go" to Avitia. The two left the house
and headed toward the train station. Pedroza noticed that
defendant and Rodriguez were following them. Pedroza heard
Rodriguez say, "fourteen something" and also heard
defendant say something. As defendant and Rodriguez closed
in, they began hitting Avitia. Both men were punching Avitia
in the body. Pedroza grabbed defendant and asked him and
Rodriguez what they were doing. Pedroza believed Rodriguez
hit Avitia one more time. Defendant and Rodriguez then left.
Avitia passed out and Pedroza called 911. The police drove
Pedroza back to the house where the group had gathered. He
identified defendant as one of the attackers. Pedroza
recalled that either Rodriguez or defendant was holding
"something shiny" before or after the attack.
8 On cross-examination Pedroza admitted he had been drinking
before going to the house in Woodstock but he said that he
stopped drinking before arriving there. The last act between
Rodriguez and Avitia was when Rodriguez kicked him and Avitia
9 Officer Jeremy Mortimer of the Woodstock police department
testified that Avitia was covered in blood and unconscious
when he arrived on the scene. Pedroza was trying to revive
Avitia. Mortimer drove Pedroza to the house on Brick street
where Pedroza identified defendant.
10 James Kelly testified that he lived at 672 Brick Street in
Woodstock. Rodriguez was a friend of Kelly's and it was
not unusual for him to bring people to Kelly's house to
party. When Kelly arrived at home the night of June 9, 2008,
Rodriguez and one of his friends were at his house. Kelly
went to bed at about 12:30 a.m. on June 10, 2008. He recalled
being awakened in the early morning and finding defendant
inside his home. Defendant was pacing in front of the door
and he asked Kelly to not open the door. Kelly told defendant
to sit down and opened the door to allow the police to enter.
Defendant sat on the couch "freaking out" and
yelling at the police. Defendant threatened the police and
Kelly because Kelly would not let him smoke. Kelly recalled
defendant saying "some kind of gang thing about
Nortenos." He characterized defendant as being
11 Katrina Cardella testified that she was James Kelly's
girlfriend and lived at his house on Brick Street. The
morning of June 10, 2008, Cardella was awakened by the police
banging on the house. She had never seen defendant before
defendant told her to not open the door. Kelly told defendant
to calm down and sit down. Defendant told Cardella and Kelly
that he was going to kill them. Defendant told the police
officer that "he was going to rape and murder their
wives." He was yelling "gang slogans about
Fourteens and how he was a gang banger and they never
die." Defendant asked the police if they knew where
their children were. Cardella noticed that there was a knife
missing from a set of knives in the kitchen. She identified
State's exhibit 16, a knife recovered by the police
outside the home, as the knife that was missing from the
12 Woodstock police officer Daniel Henry was dispatched to
the scene of the stabbing. Upon getting a description of the
suspects he went to Brick Street. He saw defendant in front
of the home at 672 Brick Street. Defendant was holding two
gas cans. After seeing Henry, defendant ran inside the home.
Henry knocked on the door and James Kelly allowed him inside.
13 Woodstock police officer Litner was Daniel Henry's
partner and assisted in defendant's arrest. Litner said
defendant was very angry and kept repeating "Nortenos
Fourteens." Defendant was screaming and shouting.
14 Officer Matt Harmon testified that while trying to make
contact with the people inside 672 Brick Street he noticed a
knife, identified as State's exhibit 16, outside another
entrance at the back of the house. The knife had grass on it
but did not have any blood on it. No fingerprints were
recovered from the knife.
15 Jorge Avitia testified that he lived in Crystal Lake and
he has been friends with defendant since the fourth grade. On
June 16, 2008, at about 2:45 a.m., Avitia was at
Pedroza's house when his friend Christian Saenz and
another friend picked them up. Luis Rodriguez was with them.
They drove to a house in Woodstock near the Aldi store. An
argument broke out about "Nortenos and Kings."
Avitia heard Rodriguez say "King killer" and
"Nortenos love," which means "you get love for
that gang, the street gang." Avitia knew that defendant
was a member of the Nortenos street gang. After he and
Pedroza left the house to head for the train station he was
attacked by defendant and Rodriguez. Before the attack he
heard them say "f*** you" and "Nortenos."
Avitia yelled "f*** you" back at them. During the
attack defendant was on his left and Rodriguez was on his
right side. Both men were punching him. His next memory was
waking up in the hospital. He suffered a puncture wound to
his heart and two stab wounds to his stomach.
16 On cross-examination Avitia denied being a gang member. He
did not know whether it was defendant or Rodriguez who
stabbed him. On re-direct Avitia acknowledged that he is
friends with some Latin King members and he admitted that he
wears black and gold clothing, the King colors. Avitia said
he had been friends with Latin King members for five years.
17 Office Paul Olazak from the Crystal Lake police department
testified that defendant told him that he was a member of the
Nortenos Fourteen street gang. The Nortenos Fourteen street
gang is a rival of the Latin Kings.
18 Office Dimitri Boulahanis of the Crystal Lake police
department testified as an expert on street gangs. He
provided a history of the Latin Kings and the Nortenos
Fourteen. Boulahanis said that defendant had four gang
tattoos, wears the Nortenos Fourteen colors and has used hand
gestures demonstrating that he was a member of that gang.
Boulahanis had seen Jorge Avitia wearing Latin Kings colors
predominantly over the years. He had seen Avitia socializing
with members of the Latin Kings in 2006 and 2007, although
Avitia never admitted being of member of the Latin Kings.
19 Dr. Oscar Habab treated Avitia when he arrived at the
hospital. Avitia suffered three stab wounds. The wounds were
located below the left collarbone, in the left armpit and in
the right lower abdomen. Avitia's blood alcohol content
20 Dr. Amir Heydari performed surgery on Avitia. Avitia had
lost more than 500 ccs of blood. He suffered a stab wound to
the heart. During surgery Avitia's heart stopped and he
had to be fibrillated.
21 Forensic testimony established that reddish-brownish
stains on defendant's shoe and watch were not a DNA match
with Avitia's DNA. The knife recovered outside
Kelly's home was examined for fingerprints but none were
found. The State rested.
22 The defense offered certified statements of conviction to
impeach two of the State's witnesses. Kelly had a
conviction for theft by deception under $300 and Avitia had
been convicted of aggravated driving under the influence of
alcohol. Defendant rested.
23 During the jury instruction conferences prior to closing
arguments the State requested that the trial court admonish
defendant of his right to testify. The following exchange
"THE COURT: I will. Thank you, Miss Kelly. Sir, your
attorney has just rested the defense case. Have you discussed
with Mr. Sugden (defense counsel) your right to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: Sir, is it your choice not to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: You discussed this thoroughly with Mr. Sugden?
THE DEFENDANT: Yes.
THE COURT: You understand that the right to testify is a
decision that you and you alone have the right to make but
you should make that decision only after discussing it with
your attorney. You have done that?
THE DEFENDANT: Yes, ma'am.
THE COURT: It's your choice not to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: Thank you.
DEFENSE COUNSEL: I have discussed it at great length with him
and it's his decision and I respect it.
THE COURT: Okay. The record will so reflect. Thank you.
24 During closing argument, the State argued that the
undisputed evidence showed that defendant participated in the
attack on Avitia and that even if defendant did not actually
do the stabbing, defendant was accountable for
Rodriguez's conduct. The State argued that
defendant's loyalty to the gang was more powerful than
his friendship with Avitia that night.
25 Defense counsel argued that the State's evidence was
weak. There was no scientific evidence to corroborate the
State's theory. "No fingerprints. No blood. No
photographs." Defense counsel argued that the
State's gang theory made no sense. Avitia was aware of
defendant's gang affiliation for years and vice versa.
There was no reason for defendant to "suddenly go
off." Defense counsel argued that everyone had been
drinking and no one really knew what took place. The jury
found defendant guilty on all counts.
26 Defendant appealed his conviction and sentence. This court
affirmed defendant's conviction and sentence on direct
appeal in People v. Knapp, No. 2-09-0089 (2010)
(unpublished summary order pursuant to Illinois Supreme Court
27 B. Post-Conviction
28 On November 19, 2015, defendant filed a pro se
petition pursuant to the Act (725 ILCS 5/122 et seq.
(West 2014)). Defendant's petition raised three issues:
actual innocence, involuntary waiver of his right to testify
and ineffective assistance of appellate counsel.
29 In his petition defendant alleged that his decision not to
testify was induced by "his attorney illegally
withholding information critical to [his] decision thus
rendering his decision involuntary." Defendant alleged
that he had several pretrial conversations with defense
counsel regarding his right to testify. He alleged that he
told his attorney that the argument with Avitia inside the
house was not about gangs but was about a female name Jackie
Gutierrez. He also told his attorney that he would testify
that Luis Rodriguez was not a known member of the Nortenos
street gang and that he had only met Rodriguez once prior to
the events of June 10, 2008. His attorney told him that his
testimony regarding the argument inside the house was
unnecessary, because Avitia's statement to the police
"disavowed that the incident was gang related." He
said that his attorney told him that: his proposed testimony
that the argument was about a girl was not supported by
independent evidence; his testimony that Rodriguez was not a
known member of the Nortenos would open the door for the
State's gang expert; and his testimony that he had only
met Rodriguez once before was not supported by any
30 Defendant alleged that he also had "in-trial
conversations" with defense counsel about testifying. He
told defense counsel that: he only removed two gas cans from
where Rodriguez washed blood off his bands inside the
bathroom; that he saw blood on Rodriguez's pants; and
that Jackie Gutierrez was present at Rodriguez's house
but left suddenly because of lewd comments to her by
Rodriguez. As to each of these areas, defense counsel told
him that his proposed testimony was unsupported by evidence.
On January 28, 2016, the trial court dismissed
defendant's petition by written order. The trial court
found that the claim of actual innocence was insufficient and
not supported by the documents attached to the petition. The
trial court recharacterized defendant's second claim as a
claim of ineffective assistance of trial counsel and found
that this claim was barred by res judicata and
forfeiture. The trial court found that defendant's claim
of ineffective assistance of appellate counsel was frivolous
and patently without merit. Defendant timely appealed the
summary dismissal of his petition.
31 II. ANALYSIS
32 On appeal, defendant argues only that the trial court
erred with respect to his second claim, that trial counsel
was ineffective for not allowing defendant to testify, citing
People v. Palmer, 2017 IL App (4th) 150020, ¶
17; People v. Youngblood, 389 Ill.App.3d 209, 217
(2009) and People v. Whiting, 365 Ill.App.3d 402,
33 A. Ineffective Assistance of Counsel
34 Defendant argues that the trial court erred in determining
that his claim of ineffective assistance was procedurally
barred because defendant "relies on matters that were
not part of the record on direct appeal" citing
People v. West, 187 Ill.2d 418 (1999). He also
argues that his petition presents the gist of a
constitutional claim of ineffective assistance of trial
counsel because while he "did not expressly state that
he informed counsel he wanted to testify, he laid out in some
detail the testimony he was prepared to present, and the
reasons counsel would not allow him to testify."
Defendant acknowledges that a postconviction petition may be
summarily dismissed where the allegations are positively
rebutted by the record. People v. Palmer, 2017 IL
App (4th) 150020, ¶ 23. He argues that the record does
not positively rebut his claim because he has alleged that
"his statements to the court regarding his waiver of his
right to testify were the direct result of counsel's
misrepresentation." He claims that based on the detail
provided in his postconviction petition, we may infer that he
communicated a desire to testify to defense counsel and
counsel responded by convincing defendant not to testify,
citing Youngblood, 389 Ill.App.3d at 224. Defendant
contends that we should not take his statements regarding his
waiver of his right to testify "at face value, as the
Palmer court apparently did."Defendant contends
that it is arguable the he was prejudiced by counsel's
advice that he should not testify.
35 The State does not challenge defendant's argument that
the trial court erred in finding that his claim of
ineffective assistance of trial counsel was procedurally
barred. Instead, the State argues that we must affirm the
trial court's dismissal of defendant's petition
because defendant did not make a "contemporaneous
assertion of his right to testify" citing
Youngblood, 389 Ill.3d at 217 and People v.
Brown, 54 Ill.2d 21, 24 (1973). The State argues that
contrary to defendant's position, the record does not
demonstrate that defense counsel would not allow defendant to
testify, but rather that defendant chose not to testify after
accepting counsel's advice. The State contends that where
the record shows that a defendant unequivocally states that
he is aware of his right to testify, but chooses to waive
that right, he cannot later successfully argue that his
decision to not testify was involuntary. It also argues that,
even if we were to find that defense counsel's
performance fell below professional standards, defendant
cannot demonstrate that he was prejudiced.
36 The Act establishes a three-stage process for adjudicating
postconviction petitions. 725 ILCS 5/122-1 et seq.
(West 2014); People v. Hommerson, 2014 IL 115638,
¶ 7. At the first stage, the circuit court determines
whether the petition is "frivolous or is patently
without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014);
Hommerson, 2014 IL 115638, ¶ 7. At this stage
of the proceedings "the court should only determine
whether the petition alleges constitutional
deprivations." Id. ¶ 10.
37 Here, the trial court dismissed defendant's
postconviction petition claim of ineffective assistance of
trial counsel, finding that the claim was barred by res
judicata and forfeiture. Our review of a trial
court's dismissal of a postconviction petition is de
novo. People v. Hodges, 234 Ill.2d 1, 9 (2009).
"We review the trial court's judgment, not the
reasons cited, and we may affirm on any basis supported by
the record if the judgment is correct." People v.
Anderson, 401 Ill.App.3d 134, 138 (2010). "Most
postconviction petitions are drafted by pro se
defendants, and accordingly, the threshold for a petition to
survive the first stage review is low. People v.
Allen, 2015 IL 113135 (2015) (citing Hodges,
234 Ill.2d at 9 (2009)). To survive dismissal at the first
stage the petition need only present "the gist of a
constitutional claim." People v. Gaultney, 174
Ill.2d 410, 418 (1996). In evaluating the merits of a
postconviction petition the trial court must accept all
well-pleaded allegations as true, "unless the
allegations are positively rebutted by the record."
People v. Youngblood, 384 Ill.App.3d 209, 214
(2009). If a petition presents "legal points arguable on
their merits" it is not frivolous. Hodges, 234
Ill.2d at 11. A petition may be dismissed as being
"frivolous and patently without merit only 'if the
petition has no arguable basis in law or in fact'-relying
on 'an indisputably meritless legal theory or a fanciful
factual allegation.'" Allen, 2015 IL
113135, ¶ 25 (quoting Hodges, 234 Ill.2d at
16-17). Legal theories that are meritless include ones that
are completely contradicted by the record, while
"[f]anciful factual allegations include those which are
fantastic or delusional." Hodges, 234 Ill.2d at
17. Our supreme court has consistently upheld the dismissal
of postconviction petitions "when the record from the
original trial proceedings contradicts the defendant's
allegations." People v. Rogers, 197 Ill.2d 216,
38 To prevail on a claim of ineffective assistance of
counsel, "a defendant must show that counsel's
performance was objectively unreasonable under prevailing
professional norms and that there is a 'reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been
different.'" People v. Domegala, 2013 IL
113688, ¶ 36 (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984)). A defendant alleging ineffective
assistance of trial counsel "must overcome the strong
presumption that the challenged action or inaction of counsel
was the product of sound trial strategy and not
incompetence." People v. Coleman, 183 Ill.2d
366, 397 (1998).
39 Defendant's petition fails to establish even the gist
of a claim that trial counsel's performance was
deficient. Defendant acknowledges that in his petition he
"did not expressly state that he informed counsel he
wanted to testify." Instead, he asks us to infer from
the details he provided that "he communicated a desire
to testify to counsel both before and during trial." We
reject this reasoning. A defendant in a criminal case has a
constitutional right to testify in his own defense, but that
right may be waived. In order to effectively waive his right
to testify, "a defendant is not required to execute a
specific type of waiver, nor is the trial court required to
ascertain whether a defendant's silence is the result of
a knowing and voluntary waiver to testify." In re
Joshua B., 406 Ill.App.3d 513, 515 (2011) (quoting
People v. Chatman, 357 Ill.App.3d 695, 703 (2005)).
The decision whether to take the witness stand and testify
belongs to the defendant "but it should be made with the
advice of counsel." People v. Smith, 176 Ill.2d
217, 235 (1997). As a general rule, advice not to testify is
a matter of trial strategy that does not amount to
ineffective assistance of counsel unless counsel refused to
allow the defendant to testify. Coleman, 2011 IL App
(1st) 1091005, ¶ 29 (citing Youngblood, 384
Ill.App.3d at 215). It is clear from the record that trial
counsel discussed "at great length" defendant's
decision not to testify. "Thus, in the instant case,
defendant's decision not to testify must be viewed as a
strategy with which he agreed." Youngblood, 384
Ill.App.3d at 235-36.
40 In People v. Smith, 176 Ill.2d 217, 234 (1997),
the supreme court noted that the vast majority of states have
held that "a defendant's waiver of his right to
testify is presumed if, as in the present case, he fails to
testify or notify the court of his desire to do so."
Id. at 234. In the instant case, we need not presume
waiver as the court did in Smith. Here there was an
on-the-record discussion regarding defendant's decision
not to testify. There is nothing in the record that shows
that at any time defendant told his lawyer that he wanted to
testify despite advice to the contrary. People v.
Brown, 54 Ill.2d 21, 24 (1973). We cited Brown
in Youngblood for the proposition that "[w]hen
a defendant's postconviction claim that his trial counsel
was ineffective for refusing to allow that defendant to
testify is dismissed, the reviewing court must affirm the
dismissal unless, during the defendant's trial, the
defendant made a contemporaneous assertion *** of his right