{ "id": 1281384, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CABRERA, Defendant-Appellant", "name_abbreviation": "People v. Cabrera", "decision_date": "2001-12-12", "docket_number": "No. 3-00-0049", "first_page": "555", "last_page": "565", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 555" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "612 N.E.2d 1372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5100617 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0700-01" ] }, { "cite": "712 N.E.2d 826", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208086 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0607-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "741 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025927 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0905-01" ] }, { "cite": "734 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980621 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0568-01" ] }, { "cite": "409 U.S. 95", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171852 ], "weight": 6, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0095-01" ] }, { "cite": "635 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850460 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0781-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "730 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "191 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229709 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-2d/191/0168-01" ] }, { "cite": "752 N.E.2d 430", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "196 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351226 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/196/0269-01" ] }, { "cite": "746 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132390 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0013-01" ] }, { "cite": "740 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026052 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0573-01" ] }, { "cite": "747 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527697 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0891-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 854, "char_count": 22243, "ocr_confidence": 0.827, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33232593869372307 }, "sha256": "1820abc36211546d26f67443a2ca31dfeed91ce391bdee03ffca8078c214804a", "simhash": "1:f2d6f419abc1807f", "word_count": 3636 }, "last_updated": "2023-07-14T21:10:13.053989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CABRERA, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HOMER\ndelivered the opinion of the court:\nThe defendant, William Cabrera, was convicted of first degree murder and was sentenced to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(a)(2). His sentence was ordered to be served consecutively with a previous sentence. The defendant\u2019s conviction and sentence were affirmed by this court on direct appeal. People v. Cabrera, No. 3 \u2014 95\u20140148 (1998) (unpublished order under Supreme Court Rule 23). Subsequently, the defendant filed a postconviction petition, which the State moved to dismiss. The court granted a partial dismissal of his petition and held an evidentiary hearing on the remaining portion. After the hearing, the court dismissed his petition. On appeal, the defendant argues that: (1) his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (2) he was denied due process when Illinois Department of Corrections (DOC) personnel coerced an exculpatory witness not to testify; and (3) the court should have held an evidentiary hearing on the dismissed portion of his petition, which alleged that his trial attorneys were ineffective for failing to call two exculpatory witnesses. We affirm in part, reverse in part and remand for further proceedings.\nBACKGROUND\nThe defendant was charged by indictment with the first degree murder of Lawrence Kush, a DOC correctional officer. The indictment alleged that Salvatore Giancana, David Starks, and the defendant caused the death of Kush at the Stateville Correctional Center by beating him about the head and body with pipes.\nAccording to testimony at trial, the defendant was a member of the Latin Kings street gang. The defendant held the high-ranking position of \u201cnation enforcer\u201d within the Latin Kings \u201cnation.\u201d He was responsible for enforcing the rules or \u201claws\u201d for the entire \u201cnation.\u201d\nOfficer Kush was known to be very thorough when conducting \u201cshakedowns\u201d of prison cells at Stateville to find contraband such as drugs, makeshift weapons, and money. During one of these \u201cshakedowns,\u201d the other correctional officer, who was conducting the \u201cshakedown\u201d with Kush, overheard inmate Gino Colon say that both Kush and the other officer were going to get what was coming to them. Colon was one of the two highest-ranking members of the Latin Kings \u201cnation.\u201d\nTestimony at trial indicated that Colon ordered a \u201chit\u201d on Kush because his \u201cshakedowns\u201d were interfering with the Latin Kings\u2019 drug business. The State presented evidence that the defendant was in charge of enforcing the \u201chit\u201d on Kush and that he directed Starks and Giancana to carry out the \u201chit.\u201d\nOn July 1, 1989, Starks and Giancana put on prison jumpsuits, gloves, and stocking caps with holes cut in them such that the stocking caps looked like ski masks. Starks and Giancana ambushed Kush and beat him about the head and body with pipes. When other prisoners and prison officials discovered Kush and came to his assistance, he was vomiting and bleeding from the top of his head. By the time Kush arrived at the hospital, he was brain dead from the injuries he sustained in this beating. The pipes, jumpsuits, gloves, and ski masks used by Starks and Giancana were later recovered by investigators on the prison grounds.\nAt the conclusion of the defendant\u2019s trial, the jury found him guilty of first degree murder. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(a)(2). During the death penalty phase, the jury directed the court not to impose the death penalty.\nAt the sentencing hearing, the trial judge considered whether the defendant was eligible for a natural life sentence. First, the judge considered the discretionary factors whereby the court could impose a natural life sentence for this defendant. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(1)(b). The judge stated that he did not find that the murder was accompanied by exceptionally brutal or heinous behavior. The judge did, however, consider several aggravating factors listed in subsection (b) of section 9 \u2014 1 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(b)). The judge noted that a natural life sentence could be imposed because the murdered individual was an employee of the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(b)(2). The judge also noted the possible involvement of aggravating factors listed in subsections (8), (9), and (10). Ill. Rev. Stat. 1989, ch. 38, pars. 9 \u2014 1(b)(8), (b)(9), (b)(10).\nNext, the judge found that the defendant previously had been convicted of first degree murder. The judge concluded that \u201cwhether it is mandatory or whether it is discretionary, I am exercising my discretion to sentence this defendant and he is hereby sentenced to a term of natural life.\u201d See Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u2014 1(a)(1)(c).\nThe judge further stated that the defendant\u2019s sentence was to be served consecutively to his prior sentence. He stated that a consecutive sentence was mandatory under section 5 \u2014 8\u20144(f) of the Unified Code of Corrections (Code of Corrections), because the defendant was committed to the DOC at the time he committed the instant offense. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20144(f).\nPrior to this court\u2019s decision on his direct appeal, the defendant submitted a pro se postconviction petition, which later was amended by court-appointed counsel. In his amended petition, the defendant alleged that (1) his trial attorneys were ineffective because, contrary to his request, his attorneys refused to call David Starks and Wilfredo Rosario, who were exculpatory witnesses, and (2) he was denied due process because DOC personnel intimidated Brian Nelson such that he refused to testify for the defense.\nThe State moved to dismiss his amended petition at the second stage of postconviction proceedings. The court dismissed that portion of his petition concerning Starks and Rosario, but allowed the petition to proceed to an evidentiary hearing on his allegations regarding Brian Nelson. After the evidentiary hearing, the court dismissed his amended petition. The defendant appeals.\nAdditional facts will be introduced as they are relevant to individual issues.\nANALYSIS\nI. Apprendi Issues\nA. The defendant\u2019s natural life sentence\nWhen assessing the constitutionality of a statute, the standard of review is de novo. People v. Williamson, 319 Ill. App. 3d 891, 747 N.E.2d 26 (2001).\nThe sentence for first degree murder ordinarily is 20 to 60 years of imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u2014 1(a)(1)(a). However, if the court finds the presence of any of the aggravating factors listed in section 9 \u2014 1(b) of the Criminal Code, the court may sentence the defendant to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(1)(b). Among the aggravating factors listed in section 9 \u2014 1(b) is that the murdered individual was an employee of the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1(b)(2). Moreover, if the defendant previously has been convicted of first degree murder, the court shall sentence the defendant to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(1)(c).\nIn Apprendi, the United States Supreme Court held that \u201c[either than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.\nIn the present case, the judge ruled that the defendant could be sentenced to natural life in prison because the murdered individual was a DOC employee (discretionary sentence under section 5 \u2014 8\u2014 1(a)(1)(b)), or because the defendant previously had been convicted of first degree murder (mandatory sentence under section 5 \u2014 8\u2014 1(a)(1)(c)). Because our analysis of the appropriateness of the defendant\u2019s mandatory life sentence under section 5 \u2014 8\u20141(a)(1)(c) is dispositive, we need not address the court\u2019s imposition of a natural life sentence under the discretionary provisions of section 5 \u2014 8\u20141(a)(1)(b).\nThe issue of whether a natural life sentence imposed under section 5 \u2014 8\u20141(a)(1)(c) of the Code of Corrections violates Apprendi appears to be one of first impression in Illinois. However, the imposition of enhanced and extended-term sentences based on a defendant\u2019s recidivism has been upheld under Apprendi by Illinois courts.\nIn People v. Lathon, 317 Ill. App. 3d 573, 740 N.E.2d 377 (2000), the court held that while section 5 \u2014 5\u20143(c)(8) (730 ILCS 5/5 \u2014 5\u2014 3(c)(8) (West 1998)) authorizes an increase in a defendant\u2019s sentence if the defendant is convicted of a Class 1 or Class 2 felony after having twice been convicted of any Class 2 or greater class felonies, recidivism should not be treated as an essential element of the offense.\nIn People v. Childress, 321 Ill. App. 3d 13, 746 N.E.2d 783 (2001), the court considered the defendant\u2019s extended-term sentence which was imposed under section 5 \u2014 8\u20142(a)(3) of the Code of Corrections (730 ILCS 5/5 \u2014 8\u20142(a)(3) (West 1998)). Under this sentencing statute, a defendant can be sentenced to an extended term if the court finds the presence of aggravating factors listed in section 5 \u2014 5\u20143.2(b) of the Code of Corrections (730 ILCS 5/5 \u2014 5\u20143.2(b) (West 1998)). In Childress, the aggravating factor was the defendant\u2019s prior conviction of the same, a similar, or a greater class felony within 10 years of the instant conviction (730 ILCS 5/5 \u2014 5\u20143.2(b)(1) (West 1998)). The Chil-dress court upheld the statute by stating that Apprendi does not render recidivist provisions unconstitutional.\nWe find the recidivist sentencing provisions of section 5 \u2014 8\u2014 1(a)(1)(c) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20141(a)(1)(c)) to be analogous to those considered in Lathon and Childress. In this case, the defendant\u2019s sentence was increased to natural life from the range of 20 to 60 years because the defendant previously had been convicted of first degree murder. By analogy with the holdings of Lathon and Childress, such an increase in the defendant\u2019s sentence because of recidivism was not unconstitutional under Apprendi. Therefore, we hold, as a matter of law, that the trial court did not err by sentencing the defendant to natural life imprisonment. Because we base our ruling on the mandatory sentencing factor considered by the trial judge, we need not address the discretionary natural life sentencing factors considered by the trial court.\nB. Constitutionality of the defendant\u2019s consecutive sentence\nAs noted, the court ordered the defendant\u2019s natural life sentence imposed in this case to be served consecutively with his prior sentence. The defendant contends that the imposition of consecutive sentencing in this case offends Apprendi. Pursuant to section 5 \u2014 8\u20144(f) of the Code-of Corrections, an offender\u2019s sentence shall be served consecutively to the sentence he was serving if the offense occurred while the offender was being held by the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20144(f).\nConsideration of the constitutionality of section 5 \u2014 8\u20144(f) under Apprendi also seems to be one of first impression. However, in People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430 (2001), the Illinois Supreme Court recently subjected consecutive sentences imposed through section 5 \u2014 8-\u20144(b) to an Apprendi analysis. In Wagener, the court stated that consecutive sentences are not unconstitutional under Apprendi because each of the individual sentences imposed is within the statutory range established by the legislature. We find the rationale of Wagener to also apply to consecutive sentences imposed under section 5 \u2014 8\u20144(f). Therefore, we hold as a matter of law that the trial court did not err by imposing consecutive sentences upon the defendant.\nII. Due Process Claim\nNext, the defendant contends that he was denied due process when DOC personnel coerced an exculpatory witness, Brian Nelson, not to testify. Brian Nelson was an inmate at Stateville during the time that Kush was murdered. At trial, when Brian Nelson was called as a witness for the defense, .he was belligerent in court and refused to be sworn to testify. He directed an obscenity at the court when ordered to answer questions, whereupon the judge found him in criminal contempt. Defense counsel attempted to elicit unsworn testimony from him, but he gave nonresponsive answers. Eventually, defense counsel ceased asking Brian Nelson questions and he was remanded to the DOC.\nAt trial, Victor Spiezio, another inmate, had testified that the defendant was responsible for enforcing the \u201chit\u201d on Officer Kush. At the postconviction evidentiary hearing, Brian Nelson testified that Spiezio told him that he ordered the \u201chit\u201d on Kush. Brian Nelson also testified that Spiezio never mentioned to him the defendant in connection with the incident. Brian Nelson further testified that correctional officers had discovered heroin and cannabis during a \u201cshakedown\u201d of his cell after Kush\u2019s death. He testified that he was not prosecuted for possession of either of the drugs, but that he was placed in segregation for possession of cannabis. On cross-examination, he admitted that the prison\u2019s report on this incident mentioned cannabis but not heroin.\nBrian Nelson further testified that Russell Nelson, a DOC investigator, and other correctional officers threatened to bring federal charges against him for possession of heroin if he testified for the defendant at trial. He stated that these correctional officers advised him that possession of the amount of heroin he had in his cell carried a natural life sentence. Brian claimed that another inmate, Toby Phillips, was present during Russell\u2019s threat.\nRussell Nelson testified at the postconviction evidentiary hearing that his conversation with Brian Nelson did not include any threats.\nMichelle Hansen also testified at the evidentiary hearing. She had been the second chair defense counsel at trial. She stated that during pretrial preparation, Stan Markun worked as an investigator for the defense. Markun had taken a statement from Brian Nelson that Spie-zio told Brian that someone other than the defendant committed the offense against Kush. Hansen interviewed Brian prior to trial and Brian refused to testify. Brian told Hansen that correctional officers had threatened to bring charges against him for something that occurred while he was incarcerated if he testified for the defendant.\nAfter the evidentiary hearing, the court\u2019s written order dismissed the defendant\u2019s amended petition. The court found that Brian Nelson\u2019s testimony was not credible and was not corroborated by independent testimony.\nOn appeal, the defendant argues that he was denied due process because Brian Nelson was coerced by DOC employees into refusing to testify for the defendant. He asserts that Brian\u2019s testimony would have been exculpatory because it directly contradicted Spiezio\u2019s testimony at trial. The defendant claims that Brian\u2019s testimony was corroborated by Hansen\u2019s testimony and was bolstered by the statement Brian gave to Markun. Further, the defendant states that it was the State\u2019s burden to rebut Brian\u2019s testimony at the evidentiary hearing. We disagree.\nThe Illinois Post-Conviction Hearing Act allows a person imprisoned in the penitentiary to collaterally attack his conviction based on the substantial denial of his constitutional rights. 725 ILCS 5/122 \u2014 1 (West 1998). Following a third-stage evidentiary hearing on a postconviction petition, we subject the trial court\u2019s factual findings to a manifest weight of the evidence standard of review. People v. Childress, 191 Ill. 2d 168, 730 N.E.2d 32 (2000).\nThe State shall not deprive any person of liberty without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, \u00a7 2. A fundamental element of due process is the right of the accused to present witnesses in his defense. Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967); People v. Johnson, 262 Ill. App. 3d 781, 635 N.E.2d 827 (1994). A defendant\u2019s due process rights are violated if the State improperly admonishes defense witnesses about the potential ramifications of testifying, causing them not to testify. Webb v. Texas, 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351 (1972); Johnson, 262 Ill. App. 3d 781, 635 N.E.2d 827. Threatening admonitions are improper and result in preventing the witness from making a free and voluntary choice of testifying. Webb, 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351; Johnson, 262 Ill. App. 3d 781, 635 N.E.2d 827.\nIn the instant case, Brian Nelson asserted that he was threatened by DOC personnel, causing him not to testify. Michelle Hansen\u2019s testimony at the evidentiary hearing did not corroborate Brian\u2019s claim. She only stated that Brian had related the same allegation to her. The statement Brian gave to Markun made similar allegations that were unsubstantiated by any other testimony. Brian claimed that Toby Phillips witnessed Russell\u2019s threatening remarks and, thus, could have corroborated his testimony, but Phillips did not testify either at trial or at the evidentiary hearing.\nThe defendant claims that it was the State\u2019s burden to rebut Brian\u2019s testimony at the evidentiary hearing. The defendant, however, cites no authority for this proposition and this court knows of no such evidentiary requirement in such circumstances.\nThe trial court found that Brian\u2019s unsubstantiated testimony was not credible. We find nothing in the record to indicate otherwise. Therefore, the trial - court\u2019s determination, following the evidentiary hearing, that the defendant had failed to establish a violation of his constitutional rights with respect to Brian Nelson\u2019s testimony was not manifestly erroneous.\nIII. Ineffective Assistance of Counsel\nIn his amended petition, the defendant alleged that his trial attorneys were ineffective by refusing to call David Starks and Wilfredo Rosario as defense witnesses despite the defendant\u2019s request that they testify. According to Starks\u2019 affidavit attached to the petition, Starks would have testified that the defendant did not order the \u201chit\u201d on Kush. Rosario\u2019s affidavit stated he would testify that he did not have certain conversations with Spiezio contrary to Spiezio\u2019s testimony at trial.\nAt the hearing on the State\u2019s motion to dismiss, the court granted that portion of th\u00e9 motion regarding Starks and Rosario. The judge stated that because these individuals were on the defendant\u2019s witness list, they were not unknown to defense counsel, and that the defendant\u2019s attorneys acted properly as a matter of trial tactics if they chose not to call two of their own witnesses.\nIf the circuit, court determines that a postconviction petition should be dismissed without an evidentiary hearing, its judgment is subject to de novo review. People v. Ponyi, 315 Ill. App. 3d 568, 734 N.E.2d 935 (2000). Unlike partial dismissals of postconviction petitions at th,e first stage of the proceedings, partial dismissals at the second stage are not improper. People v. Lara, 317 Ill. App. 3d 905, 741 N.E.2d 679 (2000).\nThe right of the accused to counsel in preparation for trial is a fundamental constitutional right guaranteed by the sixth and fourteenth amendments of the Constitution of the United States, and article I, section 8, of the Constitution of the State of Illinois. U.S. Const., amends. VI, XTV; Ill. Const. 1970, art. I, \u00a7 8. This right includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).\nTo prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) trial counsel\u2019s performance fell below an objective standard of reasonableness, and (2) that counsel\u2019s deficient performance so prejtidiced the defendant that but for counsel\u2019s errors the outcome of the trial likely would have been different. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246. When the record is unclear concerning whether trial counsel\u2019s decision not to call exculpatory wit-\nnesses was a matter of counsel\u2019s trial strategy or counsel\u2019s incompetence, the defendant is entitled to a postconviction evidentiary hearing on that issue. People v. Tate, 305 Ill. App. 3d 607, 712 N.E.2d 826 (1999); People v. Gibson, 244 Ill. App. 3d 700, 612 N.E.2d 1372 (1993).\nIn the instant case, the record reflects that Starks and Rosario were on the defendant\u2019s witness list but were not called as witnesses. The postconviction judge ruled that this decision was a matter of trial tactics and dismissed that portion of the defendant\u2019s petition. We cannot say as a matter of law, however, that defense counsel\u2019s decision not to call these potentially exculpatory witnesses to testify was a matter of trial strategy. The record does not contain sufficient facts from which to make such a determination. Once evidence is heard on this matter, the circuit court will be in a better position to determine whether the defendant was deprived of effective assistance of trial counsel. Therefore, we reverse the trial court\u2019s partial dismissal of the defendant\u2019s petition and remand the matter for an evidentiary hearing on that portion of his petition.\nCONCLUSION\nFor the foregoing reasons, we reverse the partial dismissal of the defendant\u2019s postconviction petition by the Will County circuit court and remand for an evidentiary hearing on the dismissed portion of his petition. We affirm all other aspects of the Will County circuit court\u2019s ruling.\nAffirmed in part and reversed in part; cause remanded.\nHOLDRIDGE and McDADE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOMER" } ], "attorneys": [ "Kenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Jeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CABRERA, Defendant-Appellant.\nThird District\nNo. 3 \u2014 00\u20140049\nOpinion filed December 12, 2001.\nModified opinion filed January 16, 2002.\nKenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0555-01", "first_page_order": 573, "last_page_order": 583 }