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FIFTH DIVISION

AUGUST 2, 2002

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, petitioner Jaime De Avilawas found guilty of first degree murder. On direct appeal, this court affirmed. People v. DeAvila, No. 1-96-4302 (1998) (unpublished order issued pursuant to Supreme Court Rule 23). DeAvila, represented by retained counsel, timely filed a petition for relief under the Post-ConvictionHearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)). As amended, De Avila's petitionalleged that he received ineffective assistance of trial counsel, who failed to cross-examineeyewitness William Peyton regarding a police report stating that Peyton had asked that De Avilaand another person step forward during a lineup. De Avila attached a copy of the police reportfrom his trial counsel's file to his petition, as well as a signed statement from Peyton, datedJune 25, 1999, that he was not 100% sure that De Avila shot the victim. De Avila also allegedthat his trial counsel was ineffective for failing to disclose that he was under investigation by theAttorney Registration and Disciplinary Commission (ARDC) during petitioner's trial. OnFebruary 24, 2000, the trial court issued a nine-page order summarily dismissing De Avila'spetition as frivolous or patently without merit. De Avila then filed his notice of appeal to thiscourt.

The Post-Conviction Hearing Act provides a remedy for defendants who have suffered asubstantial violation of their constitutional rights at trial. Under the Act, a postconvictionproceeding not involving the death penalty contains three stages. People v. Edwards, 197 Ill. 2d239, 244, 757 N.E.2d 442, 445 (2001). At the first stage, the circuit court must independentlyreview the postconviction petition within 90 days of its filing and determine whether "the petitionis frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998). At this firststage, the trial court's determination is subject to de novo review. People v. Coleman, 183 Ill. 2d366, 388-89, 701 N.E.2d 1063, 1075 (1998). A dismissal may be affirmed on any argument thatsupports the trial court's judgment, so long as the argument had a sufficient factual basis beforethe trial court. See People v. Wright, 189 Ill. 2d 1, 11, 723 N.E.2d 230, 237 (1999).

The Act also requires that a postconviction petition must be both verified by affidavit(725 ILCS 5/122-1(b) (West 1998)) and supported by "affidavits, records, or other evidence"(725 ILCS 5/122-2 (West 1998)). If such affidavits, records, or other evidence is unavailable, thepetition must explain why. 725 ILCS 5/122-2 (West 1998). The failure to either attach thenecessary supporting materials or explain their absence is fatal to a postconviction petition andby itself justifies a summary dismissal. People v. Collins, No. 90679, slip op. at 5 (March 15,2002).

De Avila claims he received ineffective assistance of counsel at trial. The trial courtdismissed this claim in part on the ground of res judicata. "It is well established that the scope ofpost-conviction review is limited to constitutional matters which have not been, and could nothave been, previously adjudicated." (Emphasis added.) People v. Winsett, 153 Ill. 2d 335, 346,606 N.E.2d 1186, 1193 (1992). This procedural bar may be relaxed only when: (1) a petitioneroffers information dehors the record; (2) that information supports a previously unmade claim;and (3) the information also explains why the claim it supports could not have been raisedpreviously. See People v. Erickson, 161 Ill. 2d 82, 87-88, 641 N.E.2d 455, 458 (1994).

De Avila argues that res judicata does not apply because this particular claim was notdecided by this court in the direct appeal. This argument fails, as the procedural bar applies notonly to claims previously adjudicated, but also to claims that could have been previouslyadjudicated.

De Avila also argues that this claim is not barred because it depends on matters outsidethe trial record, i.e., the police report of the lineup. As our supreme court stated in Erickson:

"The argument glosses over the reason why the proceduralbar properly may be relaxed given matters outside the trial record. The bar normally reaches to all matters that could have been--notmerely were not--earlier raised. Thus, the mere fact that supportfor a claim is contained in papers not in the trial record is largelyimmaterial. Reason to relax the bar occurs only when what isoffered in the papers also explains why the claim it supports couldnot have been raised on direct appeal." Erickson, 161 Ill. 2d at87-88, 641 N.E.2d at 458.

In this case, De Avila retained new counsel for his post-trial motion and appeal, and De Avila hasnot argued that the police report could not have been included as part of his posttrial motion. However, as De Avila discharged only one of his trial attorneys, with the other remaining toassist in the posttrial proceedings, this case may fall within the scope of People v. Lawson, 163Ill. 2d 187, 208, 644 N.E.2d 1172, 1182 (1994), in which the failure of posttrial counsel to raise aparticular issue did not result in waiver. However, this court need not finally resolve the questionof res judicata, as the trial court did not err in dismissing this claim for other reasons.

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), theUnited States Supreme Court set forth the following two-prong test to determine whether adefendant has been denied effective assistance of counsel: (1) the defendant must show thatcounsel's representation fell below an objective standard of reasonableness; and (2) the defendantmust show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must overcome a "strong presumption" thathis counsel's conduct falls within the wide range of reasonable professional assistance and thatthe challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2dat 694-95, 104 S. Ct. at 2065. In reviewing the trial court's first-stage dismissal of apostconviction petition, we address De Avila's allegations of ineffectiveness of counsel from thestandpoint of whether they are not frivolous, not patently without merit, and not positivelyrebutted by the record. Where the record shows that a trial strategy, while unsuccessful, wasnonetheless reasonable, the trial court may find a claim of ineffective assistance of counselfrivolous and patently without merit. E.g., People v. Smith, 326 Ill. App. 3d 831, 761 N.E.2d306 (2001).

In this case, De Avila alleged that he received ineffective assistance because trial counselfailed to cross-examine eyewitness William Peyton regarding a police report stating that Peytonhad asked that De Avila and another person step forward during a lineup. De Avila relies largelyon People v. Garza, 180 Ill. App. 3d 263, 535 N.E.2d 968 (1989), for the proposition that "[t]rialcounsel's failure to utilize evidence that undermines a witness' identification is ineffectiveassistance of counsel."⁽¹⁾ Initially, we note that this broad proposition is nowhere to be found inGarza. To the contrary, the Garza court emphasized that the Strickland analysis is fact-sensitiveand case-specific. Garza, 180 Ill. App. 3d at 268, 269, 535 N.E.2d at 971.

Given the fact-sensitive nature of the Strickland analysis, it is instructive to compare andcontrast Garza with the case on appeal. In Garza:

"The jury found defendant guilty of murder. Defendant hadretained new counsel when he presented his motion for a new trial. At the hearing on this motion, Officer Raymond Schalk testifiedthat after a conversation with [sole eyewitness] Donna[Mikolajewski] on the day of the murder he made notes containingthe words 'possible scar on arm above a tattoo.' He stated that thiswas written after Donna told him that defendant had told Nuckolshe was a Pope and that he had scars and tattoos to prove it, but thatshe had not seen them. It was stipulated that if Officer Noon werecalled to testify, he would state that Donna chose two pictures outof a mug book, one of Sean Ronan and one of Daniel Ulbert, andsaid they 'looked similar' to Nuckols' attacker. She later viewed amore recent photo of Ronan and decided that he was not theoffender; she then viewed Ulbert in a lineup but did not identifyhim. Photos of these men were admitted into evidence forpurposes of the post-trial motion." Garza, 180 Ill. App. 3d at 266-67, 535 N.E.2d at 970.

In holding that Garza had received ineffective assistance of counsel, this court stated that:

"Contrary to the State's suggestion, trial counsel could nothave made a tactical decision not to submit the photographs ofRonan and Ulbert for the jury's review, because he simply failed toobtain them and in fact never saw them. It was not until thehearing was held on the post-trial motion that defense counsel firstobtained the photographs and had them admitted into evidence. Nor do we agree with the State that the defense's failure to callwitnesses to corroborate defendant's testimony was simply a trialstratagem. We can conceive of no sound tactical reason not to calldefendant's sister [who would have corroborated his alibi defense],Groves and Mroczka [who both would have testified that defendantwas not responsible for the motorcycle incident and that he turnedhimself in only to cover for another gang member]; moreover, theconsequence of counsel's failure to do so was the abandonment of adefense after defendant had pointedly presented it in his testimony. Failure to adequately investigate and develop an available defensehas been found to be ineffective assistance (People v. Wright(1986), 111 Ill. 2d 18, 488 N.E.2d 973), as has failure to presentavailable witnesses to corroborate a defense (People v. Solomon(1987), 158 Ill. App. 3d 432, 511 N.E.2d 875).

We find it necessary to reiterate that the evidence in thiscase is very closely balanced, with only one witness identifyingdefendant as the offender; an identification, as we have alreadynoted, not without its debilities." Garza, 180 Ill. App. 3d at 269,535 N.E.2d at 972.

In this case, unlike Garza, De Avila does not claim that his trial counsel failed to obtainthe police report. Indeed, De Avila's brief states that the police report at issue was in trialcounsel's file. Thus, this is not a case where the failure to question Peyton about the lineupidentification is immediately removed from the realm of trial strategy.

De Avila argues that the failure to cross-examine Peyton based on the report cannot beconsidered trial strategy because Peyton's "hesitant and uncertain" identification at the lineupseriously undermined his identification testimony. The State responds that not questioningPeyton about the lineup was within the realm of sound trial strategy, because what De Avilacharacterizes as "hesitant and uncertain" could just as easily be characterized as cautious andcareful. De Avila replies that the State's characterization is self-serving, ignoring that his owncharacterization is self-serving.

In People v. Leger, 149 Ill. 2d 355, 396-97, 597 N.E.2d 586, 604 (1992), our supremecourt held that defense counsel reasonably could have decided not to object to police testimonyregarding the defendant's exercise of his fifth amendment privilege against self-incrimination andargue its impropriety in order not to call further attention to it. In this case, the trial judge wasnot only the trier of fact, but also had ruled on the motion to suppress the lineup identification. Although it is legally presumed that the trial judge did not consider the excluded identificationabsent evidence rebutting that presumption, counsel undoubtedly knew that the trier of fact wasaware of the identification. A review of the record shows that it was trial counsel's strategy tosuppress the lineup identification, attack Peyton's ability to have observed De Avila at the sceneof the offense, and suggest that the photograph array would not depict people from the angle atwhich Peyton would have observed the driver of the automobile carrying the shooter. Defensecounsel thus would not have sought to emphasize the lineup at trial.

Moreover, the evidence in this case was not as closely balanced as in Garza. Peytonidentified not only De Avila, but also his car. Indeed, two witnesses identified De Avila's car onthe day of the incident and from photographs at trial. De Avila, slip order at 7. Furthermore,Peyton's identification was corroborated by the dying declaration of Thomas Carroll to Chicagopolice officer McInnery that "Jaime" was responsible for Carroll's death. One of De Avila'sfriends, John Garza, testified that in late May 1994 (less than a month before the shooting) DeAvila said that he hated Carroll and wanted to shoot him and kill him. Nor does the record showthe sort of inconsistent eyewitness identification testimony that was present in Garza.

De Avila sought to support his postconviction petition with a signed statement fromPeyton, dated June 25, 1999, that he was not 100% sure that De Avila shot the victim. Althoughsuch a statement is an improvement over the unsigned, unsworn report submitted but rejected inPeople v. Enis, 194 Ill. 2d 361, 379-80, 743 N.E.2d 1, 12-13 (2000), the Act requires that apostconviction petition must be supported by "affidavits, records, or other evidence" (725 ILCS5/122-2 (West 1998)). If such affidavits, records, or other evidence is unavailable, the petitionmust explain why. 725 ILCS 5/122-2 (West 1998). The failure to either attach the necessarysupporting materials or explain their absence is fatal to a postconviction petition and by itselfjustifies a summary dismissal. People v. Collins, No. 90679, slip op. at 5 (March 15, 2002).

In this case, the trial court correctly noted that the statement was not an affidavit. DeAvila has not pointed to anything in the record explaining the lack of an affidavit; our review ofthe record shows that counsel informed the trial court that Peyton had ceased cooperating withthe defense. Moreover, even if this court were to consider the statement as "other evidence,"despite the fact that the rationale for the statutory requirement of an affidavit would be theincreased reliability and trustworthiness of a sworn statement, we note that Peyton testified attrial that De Avila was the driver of the getaway car, not that he was the shooter. Thus, thequestion of whether, years later, Peyton was certain that De Avila shot Carroll is of littleconsequence. The statement is clearly not a "recantation," as asserted by De Avila. Furthermore,the fear that De Avila was convicted based solely on Peyton's identification, as expressed in thewritten statement, is unfounded, given the corroborative evidence detailed above.

Finally, De Avila alleged that he received ineffective assistance of counsel where trialcounsel failed to disclose that he was under investigation by the ARDC during petitioner's trial. Our supreme court addressed a similar claim in People v. Szabo, 144 Ill. 2d 525, 582 N.E.2d 173(1991):

"Defendant first urges this court to grant him a new trialsolely on the basis of Landau's problems with the ARDC. Insupport of his contention, defendant relies exclusively on People v.Williams (1982), 93 Ill. 2d 309 [444 N.E.2d 136], in which thiscourt ordered a new trial for a defendant whose trial counsel hadbeen disbarred following an ARDC investigation which overlappedwith defendant's trial. The Williams court characterized the factsas "unique circumstances and sequence of events *** which willrarely, if ever, be duplicated." (93 Ill. 2d at 325 [444 N.E.2d 136].) We now hold that the Williams decision was an aberration peculiarto the facts of that case. The unique circumstances of Williamshave not been duplicated here and we decline to follow its holding.

Notwithstanding our view that Williams was a singularruling, we note that the factual differences between the two casesare marked, and application of the Williams decision to the instantfacts would be inappropriate. In Williams, the defendant offered'numerous instances of inaction by counsel to demonstrate that hewas denied the effective assistance of counsel.' (93 Ill. 2d at 324[444 N.E.2d 136].) This court's doubts about counsel'srepresentation were accentuated by the burden of his simultaneousdefense of three clients before two juries. (93 Ill. 2d at 325 [444N.E.2d 136].)" Szabo, 144 Ill. 2d at 529, 582 N.E.2d at 174-75.

In this case, De Avila relies on the supreme court's decision Williams and this court'sopinion following the new trial, People v. Williams, 226 Ill. App. 3d 188, 589 N.E.2d 695(1992). Indeed, De Avila pointedly notes that Williams was represented on remand by Leo Fox--the same attorney who represented De Avila at trial. De Avila also cites a ruling by a federaldistrict court ruling that Fox was ineffective in another case. However, in this case, unlike thefirst trial in Williams, counsel was representing only one client in a bench trial. Moreover,following the new trial, this court rejected the ineffective assistance claim regarding Leo Fox. Furthermore, as the State correctly notes, the record in this case shows that Fox filed a number ofpretrial motions, including a motion to dismiss based on the destruction of De Avila's car, andsuccessfully moved to have the lineup identification suppressed. Fox also vigorously cross-examined the witnesses and argued the weaknesses of the State's case during closing argument. In this appeal, De Avila's only specific criticism of Fox addressed one aspect of the cross-examination of Peyton; that claim is meritless for the reasons discussed above. In sum,regardless of whether Fox may have been ineffective in other cases, De Avila's allegation thatFox was ineffective in this case is positively rebutted by the record. Illinois courts will upholdthe summary dismissal of a postconviction petition when the record from the original trialproceedings contradicts the defendant's allegations. See, e.g., People v. Rogers, 197 Ill. 2d 216,222, 756 N.E.2d 831, 834 (2001).

For all of the aforementioned reasons, the order of the circuit court of Cook County isaffirmed.

Affirmed.

GREIMAN and QUINN, JJ., concur.

1. De Avila also cites People v. Davis, 203 Ill. App. 3d 129, 560 N.E.2d 1072 (1990), inwhich trial counsel failed to call two eyewitnesses who failed to pick the accused from a lineupand could not recall interviewing the witnesses. In this case, Peyton did not fail to identifyDe Avila, and the police report at issue was in trial counsel's file. De Avila further relies onPeople v. DeJesus, 163 Ill. App. 3d 530, 516 N.E.2d 801 (1987), which held that, under thecircumstances of that case, the accused was entitled to a hearing on the lineup identification outof the presence of the jury. In this case, De Avila had a bench trial and the record shows that thetrial court determined that De Avila did not show that the lineup was suggestive. De Avila relieson De Jesus on the question of whether the State could have introduced the lineup identificationto rehabilitate Peyton after the cross-examination De Avila claims should have occurred. Thiscourt's disposition of this case renders it unnecessary to consider that question.