{ "id": 5730668, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL MAKIEL, Defendant-Appellant", "name_abbreviation": "People v. Makiel", "decision_date": "2005-06-03", "docket_number": "No. 1-03-2266", "first_page": "102", "last_page": "120", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 102" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "year": 1992, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "63 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. 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App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5366393 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "55, 72-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0054-01" ] } ], "analysis": { "cardinality": 1274, "char_count": 47876, "ocr_confidence": 0.759, "pagerank": { "raw": 1.574661133287994e-07, "percentile": 0.6792940437840198 }, "sha256": "0c8129adba0b0cd68019f56b972cf0985b7cc11f6dbf189b384c8d13bacdd57a", "simhash": "1:abb8f5a66244b2f1", "word_count": 7577 }, "last_updated": "2023-07-14T22:37:08.387494+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. DANIEL MAKIEL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nFollowing a jury trial defendant was found guilty of first degree murder and armed robbery. He was sentenced to natural life in the Illinois Department of Corrections for murder and consecutively to 60 years for armed robbery. On appeal defendant argued his statement should have been suppressed, the trial court erred in excluding witness testimony, and the prosecution made improper remarks in closing argument. People v. Makiel, 263 Ill. App. 3d 54, 55, 72-73 (1994). We affirmed on these issues, hut remanded the case for voir dire of the excluded witness to determine the competence and relevance of the excluded witness. The trial court on remand conducted a hearing and held that the testimony of the witness was not relevant and we affirmed. People v. Makiel, No. 1 \u2014 97\u20142140 (1998) (unpublished order under Supreme Court Rule 23).\nDefendant filed a postconviction petition on June 30, 1995. It was stayed pending the completion of the appeal, which, as noted above, was affirmed. The petition was supplemented. The State filed a motion to dismiss. In April 2002, defendant filed his final motion to supplement the petition. The State filed a supplemental motion to dismiss. The circuit court granted the State\u2019s motion. Defendant appeals.\nOn appeal of the dismissal of the petition at the second stage of the postconviction process, defendant makes the following arguments: (1) an evidentiary hearing was required because the circuit court improperly relied on evidence outside the record regarding defendant\u2019s allegation that trial counsel was ineffective for failing to interview or call Sam Illich as a witness; (2) an evidentiary hearing should have been conducted on defendant\u2019s allegation that appellate counsel was ineffective for failing to challenge the trial court\u2019s exclusion of evidence that prosecution witness Allen Martin lied when he denied having a pending forgery charge; and (3) an evidentiary hearing should have been conducted regarding defendant\u2019s allegation that appellate counsel was ineffective for failing to challenge the trial court\u2019s exclusion of defense witness Brian Spodach from providing testimony of character evidence. We address each argument in turn.\nBACKGROUND\nDefendant was found guilty of the murder and armed robbery of Katherine Hoch, which occurred on October 19, 1988, at the Mobil gasoline station she managed in Calumet City, Illinois. The facts surrounding this case are fully discussed in People v. Makiel, 263 Ill. App. 3d 54 (1994), and will be repeated here as they relate to the issues raised in the instant postconviction appeal.\nPOST-CONVICTION HEARING ACT\nThe Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2000)) provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). A post-conviction petition is a collateral attack on a prior conviction. Mahaffey, 194 Ill. 2d at 170.\nIn a noncapital case, the Act creates a three-stage procedure for postconviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from the State, examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stage two, where section 122 \u2014 4 of the Act provides for the appointment of counsel for an indigent defendant. 725 ILCS 5/122 \u2014 4 (West 2000). At stage two the State has the opportunity to either answer or move to dismiss the petition (725 ILCS 5/122 \u2014 5 (West 2000)), and the trial court determines whether the petition makes a substantial showing of a constitutional violation (People v. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not dismissed at stage two, it proceeds to stage three, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122 \u2014 6 (West 2000).\nThe instant case presents an appeal from the dismissal of a petition at the second stage of the postconviction process. Defendant contends the circuit court erred in dismissing his postconviction petition without an evidentiary hearing. A defendant is not entitled to an evidentiary hearing on a postconviction petition as a matter of right. People v. Albanese, 125 Ill. 2d 100, 105 (1988). \u201c[A] hearing is required only when the allegations of the petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right.\u201d People v. Hobley, 182 Ill. 2d 404, 428 (1998). All well-pleaded facts are taken as true at this stage; therefore, the summary dismissal of a postconviction petition is subject to de novo review. Coleman, 183 Ill. 2d at 380-81.\nIssues that were decided on direct appeal are barred by the doctrine of res judicata and issues that could have been raised on direct appeal, but were not, are deemed waived. People v. Towns, 182 Ill. 2d 491, 502-03 (1998). The doctrines of res judicata and waiver will be relaxed \u201c \u2018where fundamental fairness so requires.\u2019 \u201d People v. Gaines, 105 Ill. 2d 79, 91 (1984), quoting People v. Burns, 75 Ill. 2d 282, 290 (1979). Where the alleged waiver stems from the incompetence of appellate counsel, the doctrine is relaxed. People v. Barnard, 104 Ill. 2d 218, 229 (1984). The rule is also relaxed when the facts relating to the claim do not appear on the face of the original appellate record. People v. Eddmonds, 143 Ill. 2d 501, 528 (1991). A claim may survive waiver as the result of any one of these three exceptions. People v. Whitehead, 169 Ill. 2d 355, 372 (1996). The Illinois Supreme Court has repeatedly recognized that waiver or procedural default may not preclude an ineffective assistance claim for what trial or appellate counsel allegedly ought to have done in representing a criminal defendant. See People v. Erickson, 161 Ill. 2d 82, 88 (1994) (and cases cited therein).\nIn the instant case, defendant\u2019s allegations involve claims of ineffective assistance of trial and appellate counsel. Such claims are resolved by application of the Strickland standard. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant must demonstrate both a deficiency in counsel\u2019s performance and prejudice resulting from the deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001), citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Claims of ineffective assistance of appellate counsel are measured against the same standard. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989).\nTo demonstrate performance deficiency, a defendant must establish that counsel\u2019s performance was below an objective standard of reasonableness. Edwards, 195 Ill. 2d at 163. Prejudice is demonstrated if there is a reasonable probability that, but for counsel\u2019s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel\u2019s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.\u201d People v. Enis, 194 Ill. 2d 361, 376 (2000), citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The defendant must overcome a \u201cstrong presumption\u201d that his lawyer\u2019s conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.\nBased on the second-stage procedural posture of the instant case, the relevant question is whether the allegations of the petition, supported by the trial record and the accompanying affidavits, demonstrate a substantial constitutional deprivation which requires an evidentiary hearing. Coleman, 183 Ill. 2d at 381.\nI. Ineffective Assistance of Trial and Appellate Counsel; Improper Fact-Finding Based on Evidence Outside Record\nBoth defendant\u2019s original and supplemental petitions alleged he was denied effective assistance of counsel as guaranteed by the United States and Illinois Constitutions as follows: \u201cTrial counsel should have subpoenaed and provided transportation for Sam Illich to appear at trial. Illich, was crucial to the defense case in that he denied being with defendant and Hlinko the night of the murder, thus undermining the State\u2019s theory of the case.\u201d Defendant further alleged he was denied effective assistance of appellate counsel \u201cto the extent appellate counsel failed to raise\u201d the above-noted issue.\nA. Ineffective Assistance of Counsel\nA defendant is guaranteed the right to the effective assistance of counsel under the United States and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7 8. Failure to subpoena witnesses known to defense counsel who contradict the State\u2019s case or provide exonerating testimony demonstrates ineffective assistance of counsel. People v. Butcher, 240 Ill. App. 3d 507 (1992). In the instant case, Todd Hlinko was the key State witness. The State obtained Hlinko\u2019s testimony after Illich was acquitted. The State dismissed the murder and armed robbery charges against Hlinko in exchange for his testimony against Makiel. The State agreed to a five-year sentence on Hlinko\u2019s pending drug charge to run concurrent with a five-year sentence he was serving for a violation of conditional discharge for aggravated battery.\nIllich\u2019s affidavit indicates that he would have directly contradicted Hlinko. Illich would testify, according to his affidavit, that he was not with Makiel or Hlinko on the night of the shooting, contrary to Hlinko\u2019s testimony. Also, Illich would deny going to Shane Miller\u2019s house on October 19, 1988, or October 20, 1988. Illich farther stated in his affidavit as follows: \u201cI have never seen Daniel W Makiel have possession of a gun. Daniel W. Makiel never gave me any indication, by either words or actions, that he had committed the robbery-murder of Katherine Hoch at 1007 Burnham Avenue, Calumet City, Illinois, on October 19, 1988.\u201d\nIllich would also testify that the Cutlass automobile that Hlinko said Makiel used during the shooting was not capable of being driven. Illich\u2019s affidavit further contradicts the testimony provided by Allen Martin, another State witness. Martin testified that he saw Illich, Makiel, and Hlinko in the Cutlass automobile the night of the shooting. Illich\u2019s testimony, according to his affidavit, would contradict Miller as to Illich being present and as to the Cutlass being driven.\nThe court\u2019s conclusion that strategy was involved in not calling Illich as a witness was not supported by the record. The record fails to support the court\u2019s conclusion that \u201cDefendant\u2019s attorneys were aware of the published statement and concluded if Mr. Illich testified in this trial Mr. Illich\u2019s testimony could be detrimental to the case.\u201d In fact the record rebuts that conclusion. Illich was acquitted, which raises questions of fact regarding the court\u2019s reasoning that trial strategy concerning the detrimental effect of Illich\u2019s testimony motivated defense counsel\u2019s decision not to subpoena or call Illich as a witness.\nAccording to the affidavit of Illich attached to the petition, Illich \u201cwas never contacted to be a witness by the defense.\u201d An attorney who fails to conduct reasonable investigation, fails to interview witnesses, and fails to subpoena witnesses cannot be found to have made decisions based on valid trial strategy. People v. Coleman, 267 Ill. App. 3d 895, 899 (1994). Whether defense counsel was ineffective for failure to investigate is determined by the value of the evidence that was not presented at trial and the closeness of the evidence that was presented. People v. Dillard, 204 Ill. App. 3d 7, 10 (1990). Attorneys have an obligation to explore all readily available sources of evidence that might benefit their clients. Brown v. Sternes, 304 F.3d 677, 692 (7th Cir. 2002), citing Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997). Defense counsel has a professional obligation, both legal and ethical, to explore and investigate a client\u2019s case. People v. Morris, 335 Ill. App. 3d 70, 79 (2002). Failure to conduct investigation and develop a defense has been found to be ineffective assistance. People, v. Wright, 111 Ill. 2d 18 (1986); Coleman, 267 Ill. App. 3d 895. Failure to present available witnesses to corroborate a defense has been found to be ineffective assistance. People v. Solomon, 158 Ill. App. 3d 432 (1987).\nIn People v. Garza, 180 Ill. App. 3d 263, 268 (1989), we found ineffective assistance when defense counsel failed to call alibi witnesses or to elicit inconsistencies from the State\u2019s only eyewitness. In that case, the identification statements by the eyewitness were inconsistent: The eyewitness twice selected other individuals from mug books and the identification was unreliable. We further rejected the State\u2019s argument that defense counsel\u2019s failure to call witnesses, including an alibi witness, was trial strategy and we found no sound reason not to call the alibi witness. Garza, 180 Ill. App. 3d at 269.\nIn People v. Montgomery, 327 Ill. App. 3d 180 (2001), defendant sought postconviction relief alleging ineffective assistance of trial counsel. We found the record at the first stage of the postconviction process did not rebut allegations regarding defense counsel\u2019s failure to investigate and present medical evidence demonstrating that the cause of the victim\u2019s death was not homicide. We recognized that trial counsel has a duty to conduct both factual and legal investigations on behalf of the client. Montgomery, 327 Ill. App. 3d 180. We reversed the dismissal of the postconviction petition and advanced the petition to the second stage of the postconviction process. Montgomery, 327 Ill. App. 3d at 191.\nIn the instant case, regarding ineffective assistance of trial counsel defendant alleged that his trial attorney failed to interview or subpoena Illich as a witness. Those allegations are unrebutted by the record. The pleadings, affidavits and unrebutted record raise factual questions as to the nature and extent of the investigation undertaken by defense counsel prior to trial. There are unanswered questions as to why trial counsel did not contact Illich. The record raises questions of fact as to whether it was sound trial strategy for defense counsel not to subpoena Illich or call him as a witness. The record raises questions of fact as to whether defense counsel\u2019s strategy undermined defendant\u2019s right to a fair trial. Thus, at this second stage of the post-conviction process we conclude that defense counsel\u2019s representation as alleged fails to satisfy the objective standard of reasonableness required under the deficiency prong of the Strickland test.\nWe next address whether the prejudice prong of the Strickland test regarding ineffective assistance of trial counsel in the context of this second stage of the postconviction proceeding has been satisfied. In order to establish prejudice \u201c[t]he defendant must prove that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d People v. Richardson, 189 Ill. 2d 401, 411 (2000). \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel\u2019s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.\u201d Enis, 194 Ill. 2d at 376, citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nIn People v. House, 141 Ill. 2d 323, 386 (1990), trial counsel failed to investigate evidence that would have established that the victim described someone other than defendant at the scene. Based on the closeness of the evidence, the Illinois Supreme Court found that the failure to conduct such investigation and present evidence was ineffective assistance of counsel which likely affected the outcome of the case. House, 141 Ill. 2d at 386.\nIn Coleman, 267 Ill. App. 3d at 899, we granted a new trial after an evidentiary hearing on the postconviction petition. The Coleman court found that defense counsel\u2019s failure to investigate the crime scene, failure to interview or subpoena witnesses, and failure to \u201cpursue information in his possession which indicated that the victim had not been attacked as he reported to the police, but actually had been shot in his car,\u201d supported the defendant\u2019s allegations of ineffective assistance of trial counsel. Coleman, 267 Ill. App. 3d at 899. The Coleman court concluded, \u201cWe can attribute no conceivable valid trial strategy to counsel\u2019s conduct.\u201d Coleman, 267 Ill. App. 3d at 899.\nDefense counsel\u2019s failure to investigate by contacting Illich and failure to subpoena Illich raise questions of fact unanswered by the record. There are questions of fact as to whether the failure to call Illich as a witness rendered the trial fundamentally unfair. Those questions can only be resolved by consideration of matters that are outside the record. The record as developed up to this point in the proceeding reflects no strategic reason for defense counsel\u2019s failure to contact, interview, subpoena, and call Illich as a defense witness. The circuit court improperly dismissed defendant\u2019s postconviction petition without an evidentiary hearing regarding the allegation of ineffective assistance for failing to subpoena and call Illich as a witness. That allegation demonstrates a substantial showing of a constitutional violation requiring an evidentiary hearing.\nBased on the record, together with the nature of the alleged evidence precluded from the jury\u2019s consideration as the result of defense counsel\u2019s conduct, we find defendant\u2019s allegation at this pleading stage of the postconviction process satisfies the prejudice prong of the ineffective assistance of counsel claim.\nB. Improper Fact-Finding Based on Evidence Outside Record\nAt the dismissal stage of the postconviction process, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, the court is prohibited from engaging in any fact-finding. Coleman, 183 Ill. 2d at 380-81. It is not intended that the petition be decided solely on the pleadings when the allegations implicate matters outside the record. Coleman, 183 Ill. 2d at 382.\nAs previously noted, defendant alleges in his postconviction petition that his trial counsel provided ineffective assistance of counsel for failing to contact, subpoena, and call Illich as a witness at his trial. In the instant case, the testimony of Illich clearly occurred outside the record. Codefendant Sam Illich was acquitted in a separate trial which took place eight months before defendant\u2019s trial. The petition includes an affidavit from Illich in which Illich indicates he was never contacted by defendant\u2019s trial counsel and that he would have provided evidence to impeach Todd Hlinko had he been called to testify on behalf of defendant at trial. As previously noted, Illich would testify, according to his affidavit, that he was not with Makiel or Hlinko on the night of the shooting, in direct contradiction to Hlinko\u2019s testimony. The State\u2019s case relied largely on the credibility of Hlinko. Hlinko was a critical witness for the prosecution.\nIn granting the State\u2019s motion to dismiss the petition, the circuit court ruled that defense counsel\u2019s failure to call Illich as a defense witness was trial strategy not subject to judicial review in a postconviction proceeding. The court in its written ruling stated the following:\n\u201cThe second allegation of ineffective assistance of counsel was that trial counsel failed to call Sam Illich petitioner\u2019s co-defendant who had been acquitted in a separate trial 8 months prior to petitioner\u2019s trial. Mr. Illich\u2019s defense was that he only saw defendant and Todd Hlinko the third inmate in their case on weekends and therefore, he could not have been with them since this murder was committed in mid week.\nThe petitioner\u2019s trial counsel also had the transcript of the Sam Illich trial, in which the State published a statement that Mr. Illich gave (to the Calumet City police) after he was extradited from California in March 1989 which placed him at the scene of the crime at the time of the murder with Mr. Makiel and Mr. Hlinko. Defendant\u2019s attorneys were aware of the published statement and concluded if Mr. Illich testified in their trial Mr. Illich\u2019s testimony could be detrimental to the case. This was trial strategy not subject to judicial review in post-conviction proceedings.\u201d\nThe circuit court\u2019s conclusion that trial counsel had a strategic reason for not calling Illich as a witness \u2014 because counsel would have had Illich\u2019s trial transcript which contained a statement of Illich\u2019s published at his trial \u2014 was not based on the record. The record, including defendant\u2019s trial and postconviction record, did not contain the transcript of the Illich trial. The record, including defendant\u2019s trial and postconviction record, did not contain the statement that Mr. Illich gave to the Calumet City police after he was extradited from California. In reaching the conclusion that defense counsel\u2019s decision not to call Illich as a witness was trial strategy, the circuit court engaged in fact-finding. In reaching this conclusion, the circuit court relied on a statement that was not published at defendant\u2019s trial and was not made part of the record during defendant\u2019s trial or postconviction proceeding. We are mindful that at the second stage of the postconviction process the circuit court may resolve the State\u2019s motion to dismiss a petition based on the facts in the record and supporting materials in defendant\u2019s petition. People v. Moore, 189 Ill. 2d 521, 532-33 (2000). Motions to dismiss are generally limited to consideration of the petitioner\u2019s allegations and the original trial record. Moore, 189 Ill. 2d at 533, citing Coleman, 183 Ill. 2d at 381-82. The prosecution may not provide evidentiary materials and the circuit court is not to consider evidence introduced by the State. Moore, 189 Ill. 2d at 532-33.\nIn the instant case, the State did not improperly introduce evidence to support the conclusions reached by the circuit court. Rather, the circuit court in dismissing the petition improperly relied upon matters outside the record to support its ruling. Coleman, 183 Ill. 2d at 380-81. An evidentiary hearing is necessary when allegations raised in the petition can only be resolved by consideration of matters outside the record. Coleman, 183 Ill. 2d at 380-81. Moreover, the circuit court is foreclosed from engaging in fact-finding at this second stage of the postconviction process. The Illinois Supreme Court in Coleman indicated as follows:\n\u201cThus, at the dismissal stage of a post-conviction proceeding, whether under section 122 \u2014 2.1 or under section 122 \u2014 5, the circuit court is concerned merely with determining whether the petition\u2019s allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act. Moreover, our past holdings have foreclosed the circuit court from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding.\u201d Coleman, 183 Ill. 2d at 380-81.\nThe court in Coleman recognized that factual disputes raised by the pleadings require determination of their truth or falsity and such determination cannot be made at a hearing on a motion to dismiss at either the first or second stage of the postconviction process but, rather, can only be resolved by an evidentiary hearing. Coleman, 183 Ill. 2d at 390-91. In the instant case, an evidentiary hearing is necessary because the circuit court engaged in fact-finding and relied on matters outside the record in dismissing the allegation regarding defense counsel\u2019s failure to call Illich as a witness.\nWe take no position on defendant\u2019s ability to prove his allegation that trial counsel provided ineffective assistance by failing to interview Illich and subpoena him as a witness. We find the petition and the record warrant proceeding to the evidentiary stage of the postconviction process. The petition and record raise questions of fact regarding whether trial counsel\u2019s failure to interview and subpoena Illich as a witness violated defendant\u2019s right to a fair trial. The allegations of ineffective assistance of trial counsel at this point in the proceeding are unrebutted by the record.\nWe note that appellate counsel may \u201crefrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong.\u201d Barnard, 104 Ill. 2d at 230. For the reasons previously discussed, at this stage of the postconviction process we cannot conclude the issue regarding ineffective assistance of trial counsel for failing to interview and subpoena Illich as a witness is without merit. An evidentiary hearing will provide a fully developed factual record regarding the allegation that trial and appellate counsel provided ineffective assistance.\nII. Ineffective Assistance of Appellate Counsel\nDefendant contends an evidentiary hearing should have been conducted on the allegation that appellate counsel provided ineffective assistance. Defendant supports this argument with the following conduct by appellate counsel which allegedly demonstrates ineffective assistance: (1) appellate counsel failed to challenge the trial court\u2019s exclusion of defense evidence of a pending forgery charge against prosecution witness Allen Martin; and (2) appellate counsel failed to challenge the trial court\u2019s ruling that precluded defense witness Brian Spodach from providing character evidence testimony against two witnesses for the State. The circuit court did not separately address each of the petition\u2019s allegations of error regarding evidentiary rulings made by the trial judge. Rather, in dismissing the petition the circuit court, in general, found: \u201cNone of the issues raised in the second section of the petitioner\u2019s claims substantiate any abuse of the trial court\u2019s discretion.\u201d We will address each allegation in turn.\nAs previously noted, the two-pronged Strickland test applies to allegations of ineffective assistance of appellate counsel. Caballero, 126 Ill. 2d at 269-70. A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts showing such failure was objectively unreasonable and that counsel\u2019s decision prejudiced defendant. Enis, 194 Ill. 2d at 377. Unless the underlying issue has merit, a defendant cannot be considered to have suffered prejudice from appellate counsel\u2019s failure to brief that issue. People v. Childress, 191 Ill. 2d 168, 175 (2000).\nA. Appellate Counsel\u2019s Failure to Challenge Court\u2019s Ruling Barring Evidence of Pending Forgery Charge\nDefendant\u2019s supplemental petition alleges he was denied a fair trial in violation of the United States and Illinois Constitutions because \u201c[t]he trial court denied the defendant his Sixth Amendment Right to Confrontation when it barred the defense from questioning Allen Martin about any possible bias or motive to fabricate due to a forgery charge Martin had pending against him. The defense was also improperly barred from \u2018proving up\u2019 the charge against Martin once he denied it even existed.\u201d Defendant further alleges that appellate counsel provided ineffective assistance of counsel \u201cto the extent appellate counsel failed to raise\u201d the above-noted issue.\nWe note that the State incorrectly argues that defendant is precluded from raising this issue because it was not raised in his post-conviction petition. The State\u2019s argument is contradicted by the record, which reflects that defendant raised this issue in a supplemental postconviction petition. That supplemental petition, together with the original petition, was addressed by the circuit court when the court granted the State\u2019s motion to dismiss. Accordingly, we find the case of People v. Jones is inapplicable. People v. Jones, 211 Ill. 2d 140 (2004) (issue not alleged in postconviction petition cannot be raised on appeal).\nDuring cross-examination of Allen Martin, defense counsel asked Martin if he had a pending forgery charge. The State did not object to this question. Martin denied that such a charge was pending. Out of the presence of the jury, defense counsel informed the court he wanted to impeach Martin by introducing evidence of the pending forgery charge in the form of a certified copy of the charge. During the discussion out of the presence of the jury, the State did not contest the fact that Martin had a pending forgery charge. However, the State did ask that the testimony regarding a pending forgery charge be stricken, and the jury be instructed to disregard it. The State argued that \u201cthe defense didn\u2019t elicit a question that there was any type of agreement between him and the State, and there isn\u2019t. And therefore, it\u2019s not proper, and I would ask that it be stricken.\u201d The trial judge refused that request, but instructed the State and defense not to comment on it. Defense counsel argued that Martin lied by denying he had a pending forgery charge, and the defense should be allowed to impeach Martin\u2019s credibility regarding that lie with the certified copy of the pending forgery charge. The trial court would not allow defense counsel to impeach prosecution witness Allen Martin. The trial court indicated: \u201cIf the State had elicited or raised an objection right at the point of the question, I would have sustained it before he even answered that yes or no, because an arrest would have made no difference.\u201d\nEvidence that a witness has been arrested or charged with a crime is a proper subject for cross-examination where it would reasonably tend to show that the testimony of the witness might be influenced by bias, interest or motive to testify falsely. People v. Triplett, 108 Ill. 2d 463, 475-76 (1985). The court explained in Triplett as follows:\n\u201cTherefore, although evidence of an arrest or indictment is not admissible to impeach credibility generally, it is admissible to show that the witness\u2019 testimony may be influenced by bias, interest, or motive to testify falsely.\n* * *\nFurthermore, when impeaching by showing bias, interest or motive, \u2018the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony\u2019 and, therefore, the evidence used must not be remote or uncertain. [Citations.]\nIn addition, the defendant need not show before cross-examining a witness as to the witness\u2019 possible bias, interest, or motive \u2018that any promises of leniency have been made or any expectations of special favor exist in the mind of the witness. [Citation.] Further defense counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. [Citations.]\u2019 [Citation.]\u201d Triplett, 108 Ill. 2d at 476.\nIn the context of the ineffective assistance claim, the issue to be determined at this stage of the postconviction process is whether the petition alleges a substantial constitutional deprivation unrebutted by the record which requires an evidentiary hearing. Coleman, 183 Ill. 2d at 381. The defendant\u2019s fundamental right to confront witnesses against him, including cross-examination for the purpose of impeaching credibility, is guaranteed by both the federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7 8. Such cross-examination may concern any matter that goes to explain, modify, discredit, or destroy the testimony of the witness. People v. Aughinbaugh, 36 Ill. 2d 320, 325-26 (1967); People v. Averhart, 311 Ill. App. 3d 492 (1999). The jury is entitled to details of the theory of defense so it can make an informed judgment, and the right to cross-examination is satisfied when counsel is permitted to \u201cexpose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.\u201d Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111 (1974).\nLimitation of a defendant\u2019s cross-examination of the bias, motive, or interest of a witness may violate a defendant\u2019s constitutional right to confront the witnesses against him guaranteed by both the federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7 8. The jury is entitled to know the nature of the criminal charges pending against a witness in order to have complete information \u201c \u2018so as to be better able to resolve the bias question.\u2019 \u201d People v. Reese, 121 Ill. App. 3d 977, 988 (1984), quoting People v. Rufus, 104 Ill. App. 3d 467, 474 (1982). Cross-examination to demonstrate a witness may be vulnerable to pressure, whether real or imagined, from the State regarding a pending charge is a matter of right. People v. Tomes, 284 Ill. App. 3d 514, 520 (1996). \u201cTo this end a defendant has the right to cross-examine a witness regarding pending criminal charges without first establishing that the witness was promised something in return for his testimony.\u201d People v. Ciavirelli, 262 Ill. App. 3d 966, 977 (1994).\n\u201c[Cjross-examination is proper whenever the prosecution has sufficient \u2018leverage\u2019 over the witness justifying the defendant\u2019s claim that the witness has an interest or bias, or that there is corruption or coercion that would tend to make the witness testify falsely.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 607.7, at 436-37 (7th ed. 1999). In the instant case, the record raises questions of fact as to whether the prosecution had \u201cleverage\u201d over Allen Martin, thereby justifying defendant\u2019s claim that Martin had an interest or bias in providing testimony favorable to the State. The record reflects contradictory evidence regarding the forgery charge. Martin denied having a pending forgery charge. The defense offered a certified copy of Martin\u2019s pending forgery charge. The State did not deny the pending forgery charge; however, the State objected to introduction of the certified copy. That objection was sustained by the trial judge.\nIn the instant case, the record raises questions of fact as to whether cross-examination of Martin regarding his pending forgery charge would reasonably tend to show that his testimony was influenced by bias, interest, or motive to testify falsely. Defense counsel was prohibited from providing evidence to impeach the credibility of Allen Martin with the certified copy of the pending forgery charge. Limitation of defense counsel\u2019s impeachment demonstrated an alleged constitutional deprivation unrebutted by the record.\nThe petition and the record raise questions of fact as to whether the trial court violated defendant\u2019s right to a fair trial by refusing to allow defense counsel to impeach Allen Martin with his pending forgery charge. The unrebutted allegation raises unanswered questions of fact as to what strategy motivated appellate counsel to not challenge the trial court\u2019s ruling excluding evidence impeaching Martin\u2019s credibility with the pending forgery charge. The petition raises unanswered questions of fact as to whether the prosecution had leverage over Martin justifying defendant\u2019s allegation that Martin had a possible bias or motive to fabricate due to the pending forgery charge. These questions can only be answered by matters outside the record, thereby demonstrating the need for an evidentiary hearing. Coleman, 183 Ill. 2d at 380-81 (evidentiary hearing is necessary when allegation in petition can only be resolved by consideration of matters outside the record).\nB. Appellate Counsel\u2019s Failure to Challenge Trial Court\u2019s Ruling Barring Character Testimony\nDefendant alleged in his original petition that he was denied a fair trial in violation of the United States and Illinois Constitutions because \u201c[t]he court improperly refused to allow the defense to question Brian Spodach regarding Shane Miller\u2019s and Allen Martin\u2019s reputation for truthfulness and veracity.\u201d The defendant further alleged he was denied the effective assistance of appellate counsel \u201cto the extent appellate counsel failed to raise\u201d the above-noted issue.\nThe State called as witnesses Shane Miller and Allen Martin to corroborate the testimony of codefendant Todd Hlinko, who testified for the State against defendant. Hlinko\u2019s testimony was crucial to the State\u2019s case and provided direct testimony regarding the homicide. Allen Martin testified that he saw defendant and Hlinko at the gas station around 11 p.m. Hlinko testified that on October 19, 1988, he and defendant went inside the Mobil gas station in Calumet City located at the corner of Michigan City Road and Burnham Avenue. Defendant pointed a gun at Katherine Hoch and led her into a back room. As Hlinko acted as a lookout, he heard defendant demand money from Hoch, heard noises like drawers slamming, and heard a single gunshot. Defendant then exited the back room, holding the gun and a purse, and went behind the counter to the cash register. Defendant picked up an envelope from the cash register and took two packs of cigarettes, handing them to Hlinko. Hlinko saw no one else in the station at the time.\nHlinko further testified that they went to Shane Miller\u2019s house and picked up Miller. Miller testified that, while at defendant\u2019s house, he was told about the robbery and shooting. He later saw Hlinko throw something out of the car and he was told hy Hlinko that it was a gun. Miller also testified that Brian Spodach picked him up from defendant\u2019s house.\nThe defense called Brian Spodach as a witness to contradict Miller\u2019s testimony. Spodach denied ever picking Miller up from defendant\u2019s house. The defense also called Spodach to impeach both Allen Martin and Shane Miller by testifying as to their reputations in the community for truthfulness and veracity. However, the trial court refused to allow Spodach to testify as to the reputations of Martin and Miller for truthfulness and veracity as demonstrated by the following exchange:\n\u201cDEFENSE COUNSEL: Brian, do you know Shane Miller\u2019s reputation among your friends, and in the community? Do you know his reputation for truth and veracity?\nTHE STATE: Objection.\nTHE STATE: Objection, Judge.\nTHE COURT: Sustained.\nDEFENSE COUNSEL: Do you know Allen Martin\u2019s reputation among your friends and among the community of people that you know for truth and veracity?\nTHE STATE: Objection.\nTHE COURT: Sustained.\nDEFENSE COUNSEL: Were Allen Martin and Shane Miller among the friends that you have?\nSPODACH: Yes.\nDEFENSE COUNSEL: And Shane Miller and Allen Martin knew other friends you had, is that right?\nSPODACH: Yes.\nDEFENSE COUNSEL: And you saw them over a period of years, is that right?\nSPODACH: Yes.\nDEFENSE COUNSEL: And you have talked to other people in the community, is that right, about these people?\nTHE STATE: Objection.\nTHE COURT: Sustained.\u201d\nDuring a sidebar out of the presence and hearing of the jury defense counsel argued that he should be allowed to offer evidence of the character and reputation of a witness for truth and veracity. The trial court refused to allow Spodach to testify as to the reputation of Miller and Martin for truthfulness and veracity, ruling as follows: \u201cI won\u2019t let you, you can\u2019t have a person rebut the testimony of someone else, and then through that person rebut another person as to what his character is.\u201d Defense counsel made an offer of proof as to Spodach\u2019s testimony indicating that Spodach would have testified that Miller and Martin both had reputations in the community as liars. As previously noted, defendant\u2019s petition alleged the trial court denied him a fair trial by barring the reputation testimony and that appellate counsel was thereby ineffective for failing to raise this issue.\nA witness may be impeached by testimony showing generally a poor reputation for truth and veracity. People v. Rosario, 180 Ill. App. 3d 977, 982 (1989); People v. Nash, 36 Ill. 2d 275, 280 (1966) (it is permissible to show that a witness has a bad reputation for truth and veracity). In the instant case, Spodach had knowledge regarding the reputations of Martin and Miller for truth and veracity based upon contact with members of the community. Accordingly, Spodach was called upon to provide reputation testimony. In re Brooks, 63 Ill. App. 3d 328, 342 (1978).\nWe are mindful that a defendant who alleges that appellate counsel\u2019s assistance was ineffective must show that counsel\u2019s decision not to raise the issue was objectively unreasonable and that this decision prejudiced defendant. People v. Flores, 153 Ill. 2d 264, 283 (1992). The State argues, \u201cIn this case, it is obvious that appellate counsel would not have offered a successful challenge because petitioner could not establish what Spodach would have testified to if he had been able to testify.\u201d This argument by the State is contradicted by the record. The record reflects an offer of proof made by defense counsel during trial specifically articulating what Spodach would have testified to regarding the reputation of Miller and Martin if the trial judge had allowed Spodach\u2019s testimony. Defense counsel made the following offer of proof:\n\u201cDEFENSE COUNSEL: Judge, I did have just one offer of proof just to make my record complete, a witness by the name of Brian\u2014 when I was questioning the witness, Brian Spodach, I asked the question, \u2018Do you know the reputation of Shane Miller in the community for which he lives for truth and veracity,\u2019 and the State made an objection and the court sustained it.\nMy offer of proof would be if he were to answer that question he would say that Shane Miller was a liar and that is his reputation in the community where he lives.\nI was also intending on asking the same question about Allen Martin. I believe I did and that objection was also sustained. He would say that Allen Martin is also a person who does not tell the truth, who lies and that\u2019s his reputation in the community where he associates with those friends. That\u2019s my offer of proof.\u201d\nThe jury is entitled to the details of the theory of defense so it can make an informed judgment. See Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). In the instant case, defense counsel was precluded from impeaching the credibility of two State witnesses with testimony regarding their poor reputation in the community for truth and veracity. The petition and the record raise questions of fact regarding whether the trial court\u2019s refusal to allow the reputation evidence deprived the jury of information regarding the credibility of Martin and Miller, thereby depriving defendant of the right to a fair trial. The allegations of ineffective assistance of appellate counsel for failing to raise these errors are unrebutted by the record. The petition raises unanswered questions of fact as to the strategy that motivated appellate counsel to not challenge the trial court\u2019s ruling excluding reputation evidence.\nWe are mindful that appellate counsel may \u201crefrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong.\u201d Barnard, 104 Ill. 2d at 230. The petition raises questions as to whether appellate counsel\u2019s failure to challenge the trial court\u2019s ruling excluding reputation evidence and excluding impeachment with the pending forgery charge demonstrated ineffective assistance of counsel. For the reasons previously discussed, at this pleading stage of the postconviction process, the allegations of ineffective assistance of appellate counsel demonstrate a substantial showing of a constitutional violation so as to require an evidentiary hearing. We take no position on defendant\u2019s ability to prove his ineffective assistance claims. However, an evidentiary hearing will provide a fully developed factual record regarding the allegations of ineffective assistance of appellate counsel.\nCONCLUSION\nThe allegations regarding trial counsel\u2019s failure to contact, subpoena, and present defense witness testimony from Illich are not positively rebutted by the record. The circuit court in dismissing the petition in the context of the allegations regarding Illich improperly relied upon matters outside the record to support its ruling. Coleman, 183 Ill. 2d at 380-81. The allegations of appellate counsel\u2019s failure to challenge the trial court\u2019s exclusion of reputation evidence and exclusion of impeachment with a pending forgery charge are not positively rebutted by the record. The pleadings, affidavits, and record raise unanswered questions of fact. Unless positively rebutted by the record, factual disputes raised by the pleadings require determination of their truth or falsity and cannot be resolved at a hearing on a motion to dismiss at the second stage of the postconviction process. Coleman, 183 Id. 2d at 381.\nWe are mindful that the instant case presents review of a second-stage dismissal of a postconviction petition. Whether the petition, record, and any accompanying documents make a substantial showing of a constitutional violation is a second-stage inquiry. For the reasons previously discussed, the allegations of ineffective assistance of trial and appellate counsel satisfy both prongs of the Strickland test at this pleading stage of the postconviction process. At this stage of the proceeding, taking all well-pleaded facts as true, we find the allegations of the petition, supported by the record and accompanying documents, demonstrate a substantial showing of a constitutional violation. These allegations raise questions of fact to be resolved by a hearing at the third stage of the postconviction process. Based on the record, we find the petition survives second-stage dismissal and shall advance to the third stage of the postconviction process for an evidentiary hearing. At the hearing it is to be determined whether defendant has been denied effective assistance of counsel as guaranteed by the sixth amendment of the United States Constitution and article I, section 8, of the Illinois Constitution.\nOur holding is limited to the conclusion that defendant is entitled to an evidentiary hearing at the third stage of the postconviction process regarding these allegations. We emphasize that we make no determination regarding the outcome of that hearing. We take no position on defendant\u2019s ability to prove his allegations of ineffective assistance of trial and appellate counsel. We reverse the judgment of the circuit court dismissing the postconviction petition and remand for an evidentiary hearing. The dismissal order is vacated; the petition is to be docketed for a third-stage evidentiary hearing consistent with this opinion and consistent with the terms provided by section 122 \u2014 6 of the Post-Conviction Hearing Act. 725 ILCS 5/122 \u2014 6 (West 2000).\nReversed and remanded for proceedings consistent with this opinion.\nMcNULTY and TULLY, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Michael J. Pelletier and Michael C. Bennett, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and George Samuel, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL MAKIEL, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201403\u20142266\nOpinion filed June 3, 2005.\nMichael J. Pelletier and Michael C. Bennett, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and George Samuel, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0102-01", "first_page_order": 120, "last_page_order": 138 }