SIXTH DIVISION

November 8, 2002

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Russell Morris was convicted of armed robbery, residentialburglary, possession of a stolen motor vehicle and aggravated unlawful restraint. He was sentencedto a total of 25 years in prison. Defendant's convictions were affirmed on direct appeal. People v.Morris, 229 Ill. App. 3d 144 (1992). Defendant subsequently filed a supplemental petition for reliefunder the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)), which the trialcourt dismissed without granting an evidentiary hearing. Defendant appeals, contending thedismissal violated a directive from our previous opinion to conduct an evidentiary hearing and wasimproperly based on factual determinations. We reverse the dismissal of the petition at the secondstage of the post-conviction process and remand for an evidentiary hearing.

BACKGROUND

The evidence established that two masked men broke into an apartment, where, armed witha gun, they bound and gagged two victims, stole money and various items including the victims' twoautomobiles. The facts of the case were related in our previous opinion, and we will discuss onlythe facts relevant to resolution of this appeal. Morris, 229 Ill. App. 3d at 149-54.

At a pretrial hearing, defendant litigated a motion to suppress his oral confession, arguingthat his statement was coerced. Defendant presented three witnesses: his mother, Helen Morris; hisgirlfriend, Evelyn Rodriguez; and a friend, Robert Reyes. The trial court denied defendant's motionto suppress his oral confession.

On the day of jury selection, defense counsel requested a continuance because two keydefense witnesses Evelyn Rodriguez and Robert Reyes were unavailable. Morris, 229 Ill. App. 3dat 162. Both Rodriguez and Reyes testified at the motion to suppress regarding defendant's physicalcondition during or after questioning by the police. Defense counsel requested the trial be resetbecause Rodriguez had moved and Reyes was out of town. The trial court denied the motion fora continuance. Despite the fact that both Rodriguez and Reyes had previously testified during themotion to suppress defendant's confession, the trial court, in denying the continuance, reasoned thatdefense counsel failed to answer the State's discovery request, and noted that the names of thesedefense witnesses had not been disclosed to the State. Morris, 229 Ill. App. 3d at 162.

Following the State's case at trial, defense counsel sought to present two alibi witnesses,Jamie Sweat and Eddy Veizaga. Defense counsel told the court he had just learned of both witnessesfrom defendant's mother, Helen Morris. Sweat was the former boyfriend of defendant's sister andemployed as a warehouse foreman at Maloney, Cunningham and Derrick. Veizaga was a criticalcare practitioner at Lincoln West Memorial Hospital and a friend of defendant's mother. The trialcourt conducted a voir dire of each alibi witness outside the presence of the jury. The trial courtrefused to allow either Sweat or Veizaga to testify before the jury because defendant failed todisclose the alibi defense or to provide the State the names of the alibi witnesses during pretrialdiscovery. Morris, 229 Ill. App. 3d at 162-64.

The only evidence offered by the defense was the defendant's own testimony. Defendanttestified that he spent the earlier part of the evening in question with Rodriguez, Reyes, and anotherfriend. When Rodriguez left, at approximately 8:15 p.m., defendant went to Veizaga's home wherehe stayed until approximately 12:15 a.m. He returned to Reyes' house, where he found co-offenderRoss leaving. Defendant admitted that he had given gifts to Rodriguez, which included itemsbelonging to the victims, but claimed that Ross sold him those items.

On direct appeal, defendant raised, among other issues, numerous allegations of ineffectiveassistance of trial counsel. Those allegations included defendant's claims that his trial counsel failedto timely investigate, locate, disclose and secure as a witness Rodriguez, failed to disclose his motherHelen Morris as a witness, failed to disclose and secure Reyes as a witness and failed to timelyinvestigate, locate and disclose Sweat and Veizaga, his alibi witnesses, before trial. Morris, 229 Ill.App. 3d at 165. Defendant claimed that the trial court improperly excluded those witnesses fromtestifying during trial.

We found on direct appeal that it was not error for the trial court to exclude the witnessesincluding the alibi witnesses (Morris, 229 Ill. App. 3d at 165). However, we did not addressdefendant's claim regarding his trial counsel's alleged ineffectiveness regarding these witnesses. Wefound that according to the record, defense counsel "did not discover until midtrial that Sweat,Veizaga, or defendant's mother could provide exculpatory testimony in defendant's behalf" (Morris,229 Ill. App. 3d at 165), and that defendant's claims required consideration of matters outside therecord (Morris, 229 Ill. App. 3d at 166). For the same reason, we did not address defendant's claimthat his counsel's incompetence deprived him of the opportunity to call Rodriguez and Reyes. Morris, 229 Ill. App. 3d at 166. In declining to address these claims, we indicated that such matterswould be "more properly addressed in a proceeding for post-conviction relief, where a completerecord can be made regarding defendant's allegations in this regard." Morris, 229 Ill. App. 3d at 166.

Defendant filed a supplemental post-conviction petition alleging that he was denied effectiveassistance of trial counsel by counsel's failure to file an answer to discovery or disclose and securethe two alibi witnesses, Sweat and Veizaga, whom the trial court refused to allow to testify. Defendant also claimed his counsel was ineffective for failing to disclose and secure Rodriguez,resulting in the exclusion of her testimony also.

To support his petition, defendant attached three affidavits: his own; his trial counsel, JohnPurney's; and his mother's. There are no affidavits from the alibi witnesses or from Rodriguez. However, the record contains the trial court voir dire of each alibi witness conducted outside thepresence of the jury in midtrial. In his affidavit, defendant stated that he informed Purney, "wellbefore the start of trial," that Sweat and Veizaga could testify as alibi witnesses, and defendantindicated Purney's statement in court midtrial that he had just found out about the alibi witnesses was"untrue." Purney, consistent with defendant's affidavit, admitted in his affidavit that defendantinformed him before trial "that there were several witnesses who he could call to testify regardingan alibi." Purney stated in his post-conviction affidavit that he did not file an answer to the State'sdiscovery request, give the State "notice or any information regarding witnesses defendant wouldcall at trial," and did not inform the State of an alibi defense. Helen Morris, defendant's mother,stated in her affidavit that shortly before the middle of the trial, she learned that Sweat and Veizagawere alibi witnesses, and that both Sweat and Veizaga were present in court during trial. Morrisstated that she served Evelyn Rodriguez with a subpoena and that Rodriguez appeared in court laterthat same day, but was never called by defense counsel to testify.

The State's motion to dismiss the petition contended defendant's claims were unsupportedallegations. The State contended that defendant's own affidavit was insufficient to establish Sweat'sor Veizaga's alleged alibi testimony and that defendant did not name either man when he testifiedabout his alibi at trial. The State attached as exhibits transcripts of the court's voir dire of Sweat andVeizaga and an excerpt of defendant's trial testimony. The State also contended that Sweat andVeizaga contradicted defendant's own testimony about his alibi. The State alleged that Rodriguezdisappeared after testifying at defendant's motion to suppress his confession, and defendant couldnot show that he was prejudiced by her failure to testify at trial.

The State argued at the hearing on the motion to dismiss that the failure to call Sweat andVeizaga did not prejudice defendant. Defense counsel acknowledged some minor discrepancies intheir testimony, but contended defendant was prejudiced by his trial counsel's failure to disclose orcall the alibi witnesses. Defense counsel challenged the State's assertion that Rodriguez haddisappeared after her pretrial testimony, noting the affidavit of Helen Morris indicating she servedRodriguez with a subpoena and Rodriguez appeared in court later that same day.

In ruling on the State's motion to dismiss defendant's post-conviction petition, the courtrecognized that Rodriguez was known to the State and defense from her pretrial testimony at thehearing to suppress defendant's confession and concluded, for that reason, that Rodriguez would nothave been excluded from testifying at trial. The court, noting that Rodriguez testified at the motionto suppress, concluded that "her not being called as a witness at the trial may well have been astrategy decision based on the lack of success of her testimony heard previously." The court foundthat nothing in the record established that defendant's trial counsel was precluded from callingRodriguez. The court further found that defendant failed to establish prejudice from counsel's failureto disclose the two alleged alibi witnesses and granted the State's motion to dismiss.

ANALYSIS

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides thata defendant may challenge his conviction by alleging "that in the proceedings which resulted in hisor her conviction there was a substantial denial of his or her rights under the Constitution of theUnited States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998); People v. Tenner,175 Ill. 2d 372, 377 (1997). A petition filed under the Act must "clearly set forth the respects inwhich petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1998). The petitionshall have attached "affidavits, records, or other evidence" as required by section 122-2 of the Act"supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West1998); People v. Collins, No. 90679, (March 15, 2002). Post-conviction relief is a collateralproceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues decided on direct appeal are res judicata, and all issues that could have been raised in theoriginal proceeding but were not are waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). Ifa claim of ineffective assistance of counsel is based on matters outside the record, then it could nothave been raised on appeal and, consequently, is not waived in a post-conviction petition. Peoplev. Owens, 129 Ill. 2d 303 (1989).

In cases not involving the death penalty, the Act establishes a three-stage process foradjudicating a petition for post-conviction relief. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage of a post-conviction proceeding, the circuit court determines whether the petitionalleges a constitutional infirmity that, if proven, would necessitate relief under the Act. People v.Coleman, 183 Ill. 2d 366, 380 (1998). The first stage presents a pleading question. Unlesspositively rebutted by the record, all well-pleaded facts are taken as true at this stage, and the trialcourt's determination is subject to de novo review. Coleman, 183 Ill. 2d at 385, 388-89.

If the petition is not dismissed and survives the first stage of the post-conviction process then subsection (b) of section 122-2.1 of the Act provides that "*** the court shall order the petition tobe docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS5/122-2.1(b) (West 1998). The petition in this case survived the first stage, therefore, the circuitcourt was required to docket the pleading and appoint counsel if necessary, both of which were donein this case. 725 ILCS 5/122-2.1 (West 1998). At the second stage of the post-conviction process, the State is required to either answer the pleading or move to dismiss. 725 ILCS 5/122-5 (West1998). If at the second stage the State files a motion to dismiss, the trial court must rule on the legalsufficiency of the defendant's allegations, taking all well-pleaded facts as true. People v. Ward, 187Ill. 2d 249, 255 (1999). The State in this case, rather than answer the petition, moved for dismissal,which was granted by the circuit court.

We are mindful that we review this case at the second stage of the post-conviction process. Based on the procedural posture of this case, the relevant question is whether the allegations of thepetition, supported by the record and accompanying documents demonstrate a substantial showingof a constitutional violation. Edwards, 197 Ill. 2d at 245-46. If at the second stage a substantialshowing of a constitutional violation is established, the petition is advanced to the third stage for anevidentiary hearing. 725 ILCS 5/122-6 (West 1998); Gaultney, 174 Ill. 2d at 418. On appealdefendant argues that the circuit court erred in dismissing his post-conviction petition and requeststhe case be remanded for an evidentiary hearing on the petition.

The standard of review to be applied to the circuit court's ruling dismissing the petition at thesecond stage of the post-conviction petition is de novo. Coleman, 183 Ill. 2d at 378-89. The courtin Coleman indicated as follows:

"Thus, at the dismissal stage of a post-conviction proceeding, whetherunder section 122-2.1 or under section 122-5, the circuit court isconcerned merely with determining whether the petition's allegationssufficiently demonstrate a constitutional infirmity which wouldnecessitate relief under the Act. Moreover, our past holdings haveforeclosed the circuit court from engaging in any fact-finding at adismissal hearing because all well-pleaded facts are to be taken astrue at this point in the proceeding. [Citations.]" Coleman, 183 Ill.2d at 380.

The court in Coleman recognized that factual disputes raised by the pleadings requiredetermination of the truth or falsity of the supporting documents, including affidavits and exhibits,and such determination cannot be made at a hearing on a motion to dismiss at either the first orsecond stage of the post-conviction process but, rather, can only be resolved by an evidentiaryhearing. Coleman, 183 Ill. 2d at 381, citing People v. Caballero, 126 Ill. 2d 248, 259 (1989), andPeople v. Wegner, 40 Ill. 2d 28, 31-32 (1968).

I. FAILURE TO FOLLOW MANDATE Defendant contends that the trial court violated a directive from our previous opinion toconduct an evidentiary hearing. Morris, 229 Ill. App. 3d at 172 (affirming the circuit court'sjudgment). We declined to address, on direct appeal, defendant's claims regarding his trial counsel'salleged failure to timely investigate, locate and disclose the alibi witnesses Sweat and Veizaga andto locate and disclose Rodriguez as a witness, depriving him of the opportunity to call thesewitnesses at trial. Morris, 229 Ill. App. 3d at 166-67. We stated that, because these claims involvedmatters outside the record, such matters would be more properly presented in a petition for post-conviction relief. Morris, 229 Ill. App. 3d at 165-67.

Defendant interprets our discussion as an order to the trial court to hold an evidentiaryhearing. The State argues that it was not such an order. We need not resolve the conflictinginterpretations argued by the State and defense because, for the reasons that follow, we find thatregardless of those interpretations, the circuit court erred in denying defendant an evidentiaryhearing.

We further note, despite the clear statement in our previous opinion that the ineffectiveassistance claim would be more properly addressed in a post-conviction petition, the State contendsthat the issue of ineffective assistance of counsel was res judicata. We reject the State's res judicataargument because, as previously noted, on direct appeal we declined to address defendant'sineffective assistance claim and specifically indicated that this claim would be "more properlyaddressed in a proceeding for post-conviction relief, where a complete record can be made regardingdefendant's allegations in this regard." Morris, 229 Ill. App. 3d at 166.

II. DISMISSAL OF PETITION ALLEGING INEFFECTIVE

ASSISTANCE OF COUNSEL WAS ERROR

Defendant argues that the failure by defense counsel to investigate the alibi defense, toadvise the State of an alibi defense, to disclose the names of all trial witnesses and to subpoena orlocate Rodriguez, Sweat and Veizaga for purposes of presenting their testimony at trial on behalfof defendant denied him the effective assistance of counsel as guaranteed by the sixthamendment of the United States Constitution and article I, section 8, of the Illinois Constitution.

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), theUnited State Supreme Court established 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 prejudice in that "there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceedings would have been different." Strickland, 466U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068. A reasonable probability is"a probability sufficient to undermine confidence in the outcome," and defendant has the burdenof demonstrating that, absent counsel's errors, "the factfinder would have had a reasonable doubtrespecting guilt." Strickland, 466 U.S. at 694, 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068;People v. Collins, 106 Ill. 2d 237, 274 (1985).

In deciding whether there has been ineffective assistance, a court must determine"whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466U.S. at 695, 688, 80 L. Ed. 2d at 698, 694, 104 S. Ct. at 2069, 2065. The defendant mustovercome a "strong presumption" that his lawyer's conduct constitutes sound trial strategy andfalls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80L. Ed. 2d at 694-95, 104 S. Ct. at 2065. A defendant is entitled to competent not perfectrepresentation. People v. Odle, 151 Ill. 2d 168, 173 (1992). Competence of defense counsel is tobe determined not from isolated incidents, but from a consideration of the totality of counsel'sconduct. People v. Mitchell, 105 Ill. 2d 1, 15 (1984). A. Alleged Deficient Performance By Defense Counsel

Regarding Rodriguez, Sweat and Veizaga, defendant contends trial counsel wasineffective for failure to timely investigate, failure to answer discovery, disclose, locate,subpoena or secure these witnesses to testify on his behalf at trial. Defendant's petition allegesthat trial counsel knew where to locate Rodriguez; Rodriguez did appear in court during trial, butwas not called by defense counsel to testify for defendant. The petition also alleges that beforetrial, defendant told trial counsel about the alibi witnesses.

Whether defense counsel was ineffective for failure to investigate is determined by thevalue of the evidence that was not presented at trial and the closeness of the evidence that waspresented. People v. Dillard, 204 Ill. App. 3d 7, 10 (1990). Attorneys have an obligation toexplore all readily available sources of evidence that might benefit their clients. Brown v.Sternes, No. 01-2326, slip op. at 24 (7th Cir. September 4, 2002), citing Hall v. Washington, 106F.3d 742, 749 (7th Cir. 1997). Defense counsel has a professional obligation, both legal andethical, to explore and investigate a client's alibi defense. It is fundamental that this obligationnecessarily requires discussion by defense counsel with the client regarding the alibi defense. Failure to conduct investigation and develop a defense has been found to be ineffectiveassistance. People v. Wright, 111 Ill. 2d 18 (1986). Failure to present available witnesses tocorroborate a defense has been found to be ineffective assistance. People v. Solomon, 158 Ill.App. 3d 432 (1987).

In determining whether a defendant has been denied his right to the effective assistance ofcounsel, we use a "fact sensitive analysis," which seeks to measure "the quality and impact ofcounsel's representation under the circumstances of the individual case." People v. Garza, 180Ill. App. 3d 263, 268 (1989), citing 2 W. LaFave & J. Israel, Criminal Procedure