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SIXTH DIVISION
October 31, 2003

JUSTICE SMITH delivered the opinion of the court:

Defendant Kenneth Broughton appeals from a Cook Countycircuit court order dismissing his postconviction petitionwithout an evidentiary hearing. Defendant contends that anaccomplice's affidavit constitutes newly discovered evidence ofdefendant's innocence; trial counsel failed to present thetestimony of an available witness; and postconviction counselfailed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R.651(c)). We affirm the judgment of the circuit court.

BACKGROUND

Defendant and seven other men were charged with the August1987 fatal beating of truck driver Julio Palomo at anintersection on the south side of Chicago. According to evidencepresented at trial, defendant, his nephew Willie Broughton, andaccomplice Lavatis Wilson were part of a group of men whopositioned themselves on various street corners at anintersection and burglarized the trailers of trucks that stoppedthere. Wilson testified for the State that the victim exited histruck to prevent two accomplices from breaking into a coworker'strailer, but the two accomplices chased and cornered the victim. According to Wilson, defendant crossed the street and knocked thevictim to the ground and then went to the coworker's trailer. Wilson testified that while several accomplices fatally beat thevictim, defendant and another accomplice removed cargo from thetrailer. The offenders then scattered when the police arrived. The coworker and another eyewitness identified defendant as oneof the offenders.

Following the joint jury trial with codefendant GregoryJohnson, defendant was convicted of murder and burglary. Defendant waived his right to be sentenced by a jury, and thetrial court sentenced him to natural life imprisonment for themurder offense only. On direct appeal, defendant asserted thathe was improperly convicted under the burglary statute and thathis sentence was excessive. This court affirmed the trialcourt's judgment. People v. Johnson, Nos. 1-88-3422, 1-89-0750cons. (1991) (unpublished order under Supreme Court Rule 23). Defendant petitioned for leave to appeal our decision, but wasdenied by the Illinois Supreme Court on February 5, 1992. Peoplev. Johnson, 144 Ill. 2d 639 (1992).

In September 1992, defendant timely filed a pro sepostconviction petition, alleging ineffective assistance of (1)trial counsel for not allowing defendant to testify and (2)appellate counsel for not raising that issue on appeal. Defendant also included a motion to extend the time to file hispetition, alleging that his petition was untimely but that hisinability to file was due to the imposition of a prison lockdown.

Counsel was appointed to represent defendant and, in 1996,supplemented the petition to allege ineffective assistance oftrial counsel for failure to adequately investigate, interviewand present the testimony of known witnesses Linda and ErnestDent to impeach the State's witnesses. No affidavits supportedthe petition, and the State subsequently filed a motion todismiss.

In 2000, defendant's counsel filed an addendum to thepetition to attach Willie Broughton's and Linda Dent'saffidavits. In his affidavit, Willie Broughton stated that priorto the offense, State witness Lavatis Wilson and an accompliceshot defendant and almost killed him. Moreover, Willie Broughtonstated that he was present when the victim was beaten anddefendant never hit, kicked, stomped or slammed the victim to theground. Further, Willie Broughton asserted that he told thepolice and his attorney that defendant was not involved in thevictim's beating.

In her affidavit, Linda Dent stated that on the date of theoffense, she and her brother Ernest Dent were at the scenetalking to defendant, their cousin, in a restaurant parking lot. While they were talking, two men tried to enter the back of atruck that was in motion, and defendant yelled to one of thosemen to get off the truck. Ernest and Linda Dent left the scene,and defendant remained and talked to a man sitting outside therestaurant.

Further, in the addendum to defendant's petition, counselasked for leave to file Ernest Dent's affidavit, explaining thatshe had interviewed him but had difficulty securing his affidavitbecause he resided in Arkansas and did not have a telephone. Counsel also attached defendant's brief on direct appeal tosupport his claim of ineffective counsel. In addition, counseladded the claim that, pursuant to Apprendi v. New Jersey, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), defendant'ssentence of natural life imprisonment violated his due processrights and jury trial guarantees.

On the State's motion, the trial court dismissed defendant'spetition without commenting on its timeliness or merits. Defendant appeals the dismissal, contending that his petitionmade a substantial showing that Willie Broughton's testimonyconstituted newly discovered evidence of defendant's innocenceand that trial counsel was ineffective for failure to presentLinda Dent's testimony. Defendant also contends thatpostconviction counsel did not file a certificate in compliancewith Supreme Court Rule 651(c) and that the record fails toaffirmatively show that she complied with the requirements ofthat rule.

ANALYSIS

Dismissal of a postconviction petition is appropriate onlywhen the petition's allegations of fact, liberally construed infavor of the petitioner and in light of the original trialrecord, fail to make a substantial showing of a violation of aconstitutional right. People v. Coleman, 183 Ill. 2d 366, 381-82(1998). An action for postconviction relief is a collateralproceeding, not an appeal from the earlier judgment. People v.McNeal, 194 Ill. 2d 135, 140 (2000). Considerations of resjudicata and waiver limit the scope of postconviction relief "toconstitutional matters which have not been, and could not havebeen, previously adjudicated." People v. Winsett, 153 Ill. 2d335, 346 (1992).

We review the dismissal of a postconviction petition withoutan evidentiary hearing de novo. Coleman, 183 Ill. 2d at 388-89. Although defendant is not entitled to a postconvictionevidentiary hearing as a matter of right, a hearing is requiredif defendant makes a substantial showing of a violation of aconstitutional right. Coleman, 183 Ill. 2d at 382. Fact-findingand credibility determinations are to be made at the evidentiaryhearing and not at the dismissal stage of the proceedings. Coleman, 183 Ill. 2d at 385. However, the allegations indefendant's petition must be supported by the record oraccompanying affidavits, and nonspecific and nonfactualassertions are insufficient to require an evidentiary hearing. Coleman, 183 Ill. 2d at 381. The circuit court may properlydismiss a postconviction petition where the allegations containedtherein are contradicted by the record from the original trialproceedings. Coleman, 183 Ill. 2d at 381-82.

New Evidence

Defendant contends that new evidence discovered after histrial supports his claim of innocence. Specifically, defendant'snephew Willie Broughton, who was also convicted of the victim'smurder, provided an affidavit stating that defendant did notparticipate in beating the victim. Willie Broughton also statedthat, before the offense, State witness Lavatis Wilson and anaccomplice "shot *** and almost killed [defendant]."

The State argues that postconviction counsel failed to amenddefendant's pro se petition to clearly articulate this claim ofnewly discovered evidence and, thus, waived it on appeal. However, noting that principles of fundamental fairness requirerelaxation of strict adherence to the waiver rule, we find thatcounsel sufficiently raised this claim in Willie Broughton'saffidavit and at the motion-to-dismiss hearing. To warrant a newtrial, new evidence must be so conclusive that it will probablychange the result upon retrial, material and not merelycumulative, discovered since the trial, and of such characterthat it could not have been discovered prior to trial by theexercise of due diligence. People v. Patterson, 192 Ill. 2d 93,124 (2000).

Defendant argues that this evidence could not have beendiscovered prior to trial by the exercise of due diligencebecause Willie Broughton could not have been compelled to waivehis fifth amendment privilege concerning the murder charge. Defendant also argues that the affidavit would likely change theoutcome of the trial because it exculpated him and discreditedWilson's testimony by revealing his bias against defendant basedon the shooting incident.

Applying the aforementioned standard, Willie Broughton'saffidavit is insufficient because, taken as true, his statementthat defendant did not hit, kick, stomp or slam the victim to theground does not exculpate defendant, who was convicted based on atheory of accountability. Specifically, the evidence establishedthat defendant was accountable for the murder offense where heplanned and participated in the truck burglaries that led to thevictim's fatal beating. Willie Broughton simply concludes thatdefendant is not responsible for the murder without providing anyfacts regarding where defendant was at the time of the offense orhis involvement in the planning and execution of the burglaries.

Willie Broughton's affidavit actually corroborates thetestimony of State witnesses Lavatis Wilson and William Callahanconcerning defendant's role in the offense. Specifically,Wilson's and Callahan's testimony established that afterdefendant knocked the victim to the ground and two accomplicesbegan to beat the victim, defendant went to Callahan's truck. Then, while defendant taunted Callahan to get out of his truckand try to help the victim, Willie Broughton and several otheraccomplices ran to the scene and joined the beating of thevictim. Rather than exonerate defendant, Willie Broughton'saffidavit merely indicates that by the time he joined theassault, he did not see defendant beat the victim.

Furthermore, Willie Broughton's statement that LavatisWilson was involved in an altercation with defendant before theoffense does not constitute new evidence. Defendant's trialcounsel was aware of this information and, during cross-examination, asked Wilson about the January 1987 argumentinvolving his mother and defendant. The State objected, anddefendant's trial counsel made an offer of proof during a sidebarthat Wilson and accomplice Andre Shelby confronted defendant andthat Shelby shot defendant. The trial court questioned counsel'sattempt to impeach Wilson by establishing his bias throughShelby's conduct but allowed counsel to proceed. Counsel,however, chose not to pursue the matter and instead attackedWilson's credibility by cross-examining him about his pleabargain with the State. The record establishes that the 1987shooting incident was discovered before trial, was not of such aconclusive character that it would probably change the resultupon retrial, and was merely cumulative where trial counselattacked Wilson's credibility through his plea bargain.

Ineffective Assistance of Trial Counsel

Next, defendant contends that trial counsel was ineffectivefor failure to call Linda Dent, whom counsel knew could addexculpatory testimony.

To establish a claim for ineffective assistance of counsel,defendant must show (1) that counsel's representation fell belowan objective standard of reasonableness and (2) that there is areasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,693, 104 S. Ct. 2052, 2064 (1984); People v. Morgan, 187 Ill. 2d500, 529-30 (1999). A reasonable probability is a probabilitysufficient to undermine confidence in the outcome. Morgan, 187Ill. 2d at 530. If defendant cannot demonstrate that he sufferedprejudice, then a court need not address whether counsel'sperformance was deficient. Morgan, 187 Ill. 2d at 530. Althoughcounsel's decision regarding whether to present a particularwitness is generally a matter of trial strategy (People v.Flores, 128 Ill. 2d 66, 85-86 (1989)), counsel may be deemedineffective for failure to present exculpatory evidence of whichhe is aware, including the failure to call witnesses whosetestimony would support an otherwise uncorroborated defense(People v. Tate, 305 Ill. App. 3d 607, 612 (1999)).

The record refutes defendant's claim that his cousin LindaDent would have presented exculpatory evidence. Linda Dent'stestimony is irrelevant because, according to her affidavit, sheand her brother Ernest left the scene before the victim waschased and beaten by the offenders. Trial counsel disclosed indiscovery that Linda and Ernest Dent were potential witnesses butdid not present their testimony at the jury trial and latercalled Linda Dent to testify at defendant's death penaltysentencing hearing.

Trial counsel's decision not to call Linda Dent as a jurytrial witness was sound strategy because her testimony would havecorroborated Lavatis Wilson's testimony. Specifically, LindaDent clearly places defendant at the scene just before theassault on a street corner across from where the victim wasbeaten. Moreover, Linda Dent's affidavit indicates thatdefendant may have tried to warn one of his accomplices to getoff the moving truck. The strategy of defendant's trial counselwas to draw the jury's attention to weaknesses in the State'sevidence identifying defendant as one of the offenders. Accordingly, defense counsel thoroughly cross-examined theState's witnesses regarding the confusion at the scene due todarkness and the quick and sudden assault by multiple offenderswho descended on the victim from various directions. Rather thanexculpate defendant, Linda Dent's affidavit actually harms him bycorroborating the testimony of State witnesses concerningdefendant's role and position at the scene.

The cases defendant cited to support his argument that hewas entitled to an evidentiary hearing on his claim ofineffective assistance of counsel are readily distinguishable. For example, in People v. Cabrera, 326 Ill. App. 3d 555, 565(2001), the court determined that the record did not containsufficient facts from which to conclude that trial counsel'sdecision not to call two potentially exculpatory witnesses was amatter of trial strategy. Here, the record establishes thatLinda Dent's testimony was not exculpatory but, rather, wascompatible with the testimony of State witnesses and therebypotentially damaging to the defense's misidentification strategy.

Defendant's case is also distinguishable from People v.Hernandez, 298 Ill. App. 3d 36, 40 (1998), where the court ruledthat the reliability of the witness's affidavit, which recantedhis trial testimony against the defendant and provided him withan alibi, could not be decided on the postconviction pleadingsand required an evidentiary hearing. Whereas the issue inHernandez involved the credibility of the exculpatory testimonyin the affidavit, here, Linda Dent's affidavit--even assumingthat her statements are true--is not exculpatory and does notsupply defendant with any alibi.

Reasonable Assistance of Postconviction Counsel

Defendant next argues that he was denied reasonableassistance of postconviction counsel, alleging that the recordfails to affirmatively show that counsel complied with therequirements of Supreme Court Rule 651(c). 134 Ill. 2d R.651(c). The record establishes and the parties agree thatdefendant's postconviction counsel did not file a certificate ofcompliance with Rule 651(c).

The right to counsel in postconviction proceedings isstatutory, and the Post-Conviction Hearing Act (Act) (725 ILCS5/122-4 (West 1998)) requires counsel to provide a reasonablelevel of assistance to petitioners in postconviction proceedings. People v. Turner, 187 Ill. 2d 406, 410 (1999). To that end,Supreme Court Rule 651(c) requires that the postconvictionproceedings record contain a showing, which may be made by thecertificate of petitioner's counsel, that counsel "has consultedwith petitioner either by mail or in person to ascertain hiscontentions of deprivation of constitutional right, has examinedthe record of the proceedings at the trial, and has made anyamendments to the petitions filed pro se that are necessary foran adequate presentation of petitioner's contentions." 134 Ill.2d R. 651(c).

Defendant argues that he was denied reasonable assistancebecause, other than a telephone call, the record does notindicate that counsel "made any other efforts to contact ErnestDent, such as by corresponding with him, to secure hisaffidavit." To the contrary, the transcript of the motion todismiss hearing established that counsel apprised the trial courtover the time she was involved in this case of her efforts toobtain Ernest Dent's affidavit. According to the record, thismatter was continued several times since counsel filed theaddendum asking for leave to file Ernest Dent's affidavit. Furthermore, when counsel explained the absence of Ernest Dent'saffidavit, she made an offer of proof that her telephoneconversation with him established that he would provide anaccount of the event similar to his sister Linda's account. Asdiscussed above, because Linda's affidavit was not exculpatory,then Ernest's similar testimony would add nothing to supportdefendant's postconviction petition. Although Rule 651(c)requires counsel to consult with defendant either by mail or inperson, counsel is not required to correspond with defendant'sunavailable relatives to pursue redundant, nonexculpatoryevidence.

Next, defendant argues the record fails to affirmativelyshow that counsel examined the trial record where her argument atthe postconviction proceeding referred to defendant's sentencinghearing and merely summarized Linda Dent's and Willie Broughton'saffidavits without reference to any trial testimony thoseaffidavits allegedly impeached.

Defendant's original petition, however, did not allege anyconstitutional violations based on trial counsel's failure toinvestigate and present the testimony of witnesses such as LindaDent or Willie Broughton. "Rule 651(c) requires post-convictioncounsel only to examine 'as much of the transcript of proceedingsas is necessary to adequately present and support thoseconstitutional claims raised by the petitioner.'" Turner, 187Ill. 2d at 411-12, quoting People v. Davis, 156 Ill. 2d 149, 164(1993). Postconviction counsel added the claims concerningWillie Broughton and Linda Dent to defendant's original petition. Nevertheless, postconviction counsel's decision not tospecifically compare the affidavits to the jury trial testimonysimply indicates the relative lack of merit of those affidavits,which--as discussed above--failed to impeach the trial testimonyor exculpate defendant.

Defendant next argues that he was denied reasonableassistance when counsel failed to correct the pro se petition toreflect that it was timely filed. Specifically, defendanterroneously stated in his September 1992 pro se petition that itwas untimely, because the correct due date was November 4, 1992.⁽¹⁾ Defendant contends that counsel's omission could have resulted inthe circuit court erroneously dismissing the postconvictionpetition as time-barred.

The record, however, does not support defendant'sspeculation that his petition was dismissed as untimely. Whenthe circuit court, prior to adjourning the hearing on the State'smotion to dismiss, asked the parties to confirm the relevantdates concerning the timeliness of defendant's September 1992petition, the State responded that the petition's due date wasMay 1993. The circuit court then stated, "All right. So it wasactually before--."

Rule 651(c) requires the record to demonstrate thatpostconviction counsel made any amendments to the pro se petitionthat were necessary for an adequate presentation of defendant'scontentions. Moreover, our supreme court has held that counsel'sfailure to make a routine amendment to a postconviction petitionthat would overcome a procedural bar constitutes unreasonableassistance in violation of Rule 651(c). Turner, 187 Ill. 2d at412-13 (if postconviction counsel had amended the petition toallege ineffective assistance of appellate counsel for failure toraise petitioner's claims on direct appeal, those claims wouldnot have been barred by waiver).

Here, although postconviction counsel did not amend thepetition to indicate that it was timely, her omission neitherprevented the circuit court from considering the merits ofdefendant's claims nor directly contributed to the dismissal ofthe petition without an evidentiary hearing. The Act allows adefendant to file a petition outside the limitations period ifthe late filing was not due to his culpable negligence. Postconviction counsel overcame her omission by arguing at themotion to dismiss hearing that dismissal of defendant's petitionas time-barred was improper where defendant's affidavitestablished that his filing was delayed due to a prison lockdown. See Turner, 187 Ill. 2d at 413 (counsel could have overcome thefailure to make necessary amendments to the petition by raisingthe additional elements of petitioner's claims at the motion todismiss hearing).

We believe that defendant received the reasonable level ofassistance of counsel required by the Act. Defendant does notdispute that postconviction counsel discussed the case with himand twice amended the petition to add arguments not raised in thepro se petition. Moreover, counsel supported the allegations inthe petition with affidavits and presented coherent argument atthe hearing on the State's motion to dismiss.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

TULLY and GALLAGHER, JJ., concur.

1. Defendant's petition was timely filed according to theprovisions of the Act in effect in 1992. Defendant was sentencedon October 11, 1988, and his petition for leave to appeal wasdenied on February 5, 1992. The due date to file a petition forcertiorari with the United States Supreme Court was May 4, 1992,which was 90 days after the denial of the petition for leave toappeal. Thus, defendant's postconviction petition was due sixmonths later on November 4, 1992. Ill. Rev. Stat. 1991, ch. 38,par. 122-1.