{ "id": 4263912, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR M. BARCIK, Defendant-Appellant", "name_abbreviation": "People v. Barcik", "decision_date": "2006-04-19", "docket_number": "Nos. 2-03-1045, 2-04-0476 cons.", "first_page": "183", "last_page": "194", "citations": [ { "type": "official", "cite": "365 Ill. App. 3d 183" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "226 Ill. App. 3d 465", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238811 ], "year": 1992, "pin_cites": [ { "page": "468", "parenthetical": "rejecting a claim of ineffectiveness where \"[a] 11 three of the potential alibi witnesses may have been related to codefendant ***, and thus, their credibility may have carried little weight\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0465-01" ] }, { "cite": "341 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572639 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "635", "parenthetical": "rejecting a claim of ineffectiveness where \"the alibi witnesses [that counsel did not call] were defendant's cousins and, as such, their credibility may have carried little weight\"" }, { "page": "635" }, { "page": "635" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0621-01" ] }, { "cite": "336 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599228 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "714-15" }, { "page": "715" }, { "page": "718-19" }, { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0711-01" ] }, { "cite": "148 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3282852 ], "year": 1992, "pin_cites": [ { "page": "473-74", "parenthetical": "where evidence of guilt was overwhelming, counsel was not ineffective for arguing for jury nullification" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0466-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 33, "year": 1984, "pin_cites": [ { "page": "684-85" }, { "page": "691-92" }, { "page": "2062-63" }, { "page": "696" }, { "page": "699" }, { "page": "2069" }, { "page": "686" }, { "page": "692-93" }, { "page": "2064" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "693" }, { "page": "697" }, { "page": "2067" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "309 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349584 ], "year": 1999, "pin_cites": [ { "page": "597-98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0595-01" ] }, { "cite": "356 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749308 ], "year": 2005, "pin_cites": [ { "page": "866" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0863-01" ] }, { "cite": "202 Ill. 2d 59", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442048 ], "year": 2002, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0059-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "380" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "year": 2002, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "197 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259103 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "243-44" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0239-01" ] }, { "cite": "217 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136533 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "1044-45" }, { "page": "1047-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/1043-01" ] } ], "analysis": { "cardinality": 1029, "char_count": 29161, "ocr_confidence": 0.768, "pagerank": { "raw": 1.432303374207837e-07, "percentile": 0.6515331588830082 }, "sha256": "8977f5b2b0664e6c261362378bc9d57d0824f891c6a1d6056da047c59ee5cf6e", "simhash": "1:8b7afa8e7f8d0ef3", "word_count": 4750 }, "last_updated": "2023-07-14T16:12:10.332814+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. VICTOR M. BARCIK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Victor M. Barcik, was convicted of two counts each of aggravated driving under the influence (DUI) (625 ILCS 5/11 \u2014 501(a)(2), (c \u2014 1)(3) (West 2002)) and enhanced driving while his license was revoked (DWLR) (625 ILCS 5/6 \u2014 303(a), (d) (West 2002)). He was sentenced to seven years\u2019 imprisonment for DUI to run concurrently with the six years he was given for DWLR.\nDefendant filed a consolidated appeal, arguing that (1) his multiple convictions for each of his crimes violated the one-act, one-crime rule; (2) his extended sentence for DWLR was improper; and (3) the trial court erred in summarily dismissing a petition that he had filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2002)), in which he claimed that he was denied the effective assistance of counsel. We vacated one of defendant\u2019s convictions of both DUI and DWLR and remanded his case for resentencing on the remaining count of DWLR. People v. Barcik, 357 Ill. App. 3d 1043, 1044-45 (2005). At the same time, we dismissed his appeal from the dismissal of his postconviction petition, because we found that we lacked jurisdiction to consider the substance of that matter. Barcik, 357 Ill. App. 3d at 1047-48. But the supreme court, in the exercise of its supervisory authority, directed us to vacate the portion of our decision in which we found jurisdiction lacking and to resolve defendant\u2019s postconviction appeal on the merits. People v. Barcik, 217 Ill. 2d 569 (2005). We do so now.\nI. BACKGROUND\nMuch of the facts and procedure of this case is detailed in our earlier decision (see Barcik, 357 Ill. App. 3d 1043) and is repeated here only as necessary to an understanding of defendant\u2019s postconviction petition.\nAccording to Sgt. Charles Yanz of the Wheaton police department, defendant was pulled over shortly after midnight on March 1, 2003, after the car he was driving, which had one headlight out, veered off the road, went onto a curb, went over the curb, and then crashed back down onto the road. When Sgt. Yanz approached defendant\u2019s car, he smelled an \u201cextremely strong\u201d odor of alcohol coming from the driver\u2019s-side window. In the car with defendant were his fianc\u00e9e, Anita Mazzochi, and Duane and Brian Besch. Although defendant\u2019s speech was normal, his eyes were glassy and bloodshot. As Sgt. Yanz neared, defendant told his companions: \u201cI\u2019m fucked, I\u2019m going to jail.\u201d\nThis was the first time Sgt. Yanz had met defendant. When Sgt. Yanz asked him for his driver\u2019s license, defendant replied that he had a Wisconsin driver\u2019s license, but he did not have it with him. He did, however, have an Illinois identification card, which he handed to Sgt. Yanz. After receiving the identification card and an insurance card, Sgt. Yanz returned to his police vehicle. There, he called for a second officer, which is customary in suspected DUI encounters. A few minutes later, Wheaton police officer James Craig arrived. At that point, Sgt. Yanz went back over to defendant and instructed him to walk over to Officer Craig so that he, defendant, could perform some field sobriety tests. Defendant did so. Then, when defendant reached Officer Craig, defendant turned around and put his hands behind his back as if preparing to be handcuffed.\nOn cross-examination, Sgt. Yanz admitted that, prior to pulling defendant over, he, Sgt. Yanz, had not observed defendant committing every traffic violation associated with drunk driving. For example, Sgt. Yanz admitted that he had not seen defendant brake erratically, straddle the road\u2019s center line, or swerve in his lane. Sgt. Yanz conceded that, before observing defendant hit the curb, he, Sgt. Yanz, had observed only one traffic violation, namely, the nonfunctioning headlight. And Sgt. Yanz acknowledged that, when he initially made contact with defendant, defendant did not slur his words or gesture wildly. Sgt. Yanz further acknowledged that defendant had no trouble retrieving his identification. In addition to these concessions, Sgt. Yanz admitted that, when he filed a report after defendant\u2019s arrest, he, Sgt. Yanz, did not specifically indicate that he had smelled alcohol coming from the driver\u2019s-side window of the car; rather, he said only that he had smelled alcohol coming from the car. (When he smelled this, however, Sgt. Yanz had been standing by the driver\u2019s side of the car.) Sgt. Yanz also acknowledged that, when defendant stepped out of the car, he did not fall down, stumble, or lean on the car for support. Nor did he urinate in his pants. In short, defendant had no difficulty getting out of the car. Also, when he walked over to Officer Craig, defendant walked like a \u201cnormal\u201d person.\nAfter defendant walked over to Officer Craig, Sgt. Yanz spoke with the other people in the car defendant had been driving. The car belonged to defendant\u2019s fianc\u00e9e, and Sgt. Yanz determined that she and the other two passengers were too drunk to drive.\nMeanwhile, Officer Craig prepared to administer field sobriety tests to defendant. According to Officer\u2019s Craig\u2019s testimony, at the time, he was standing on the sidewalk, about five feet behind defendant\u2019s fianc\u00e9e\u2019s car. The weather was cool, but not cold. It was \u201clong sleeves\u201d weather. The night was clear and the ground was dry.\nWhen defendant reached Officer Craig, defendant placed his hands behind his back, but Officer Craig informed defendant that he was not under arrest. That said, Officer Craig noticed that defendant\u2019s eyes were bloodshot and glassy and that there was a strong odor of an alcoholic beverage on defendant\u2019s breath. Also, defendant\u2019s speech was \u201cslightly\u201d slurred. Officer Craig recognized the slight slurring because, unlike Sgt. Yanz, Officer Craig had had prior contact with defendant and knew what he normally sounded like. Officer Craig asked defendant where he had been that evening. Defendant said he had been at the Wheaton Bowl, a local bowling alley, restaurant, and bar. He also said that, while there, he drank only one beer. After receiving this answer, Officer Craig was ready to start the field sobriety testing.\nThis was not Officer Craig\u2019s first time administering field sobriety tests. In fact, after receiving extensive training in such testing, Officer Craig had performed field sobriety tests on \u201cprobably close to a hundred\u201d people. He had also observed thousands of people under the influence of alcohol. From all of this training and experience, Officer Craig said, he knew what to look for when administering the field sobriety tests.\nWhat he looked for, in particular, were \u201cclues\u201d indicating that the suspect was under the influence of alcohol. In each test, the presence of a certain number of clues indicates that the suspect fails the test. Based on a count of these clues, defendant failed all three of the field sobriety tests Officer Craig gave him. These included the one-leg stand test, which requires the suspect to stand on one leg and count to a given number. Based on defendant\u2019s failing these tests \u2014 along with his glassy, bloodshot eyes, slightly slurred speech, and strong odor of alcohol \u2014 Officer Craig concluded that defendant was under the influence of alcohol. So he told defendant he was under arrest for DUI, cuffed him, and took him to the Wheaton police station. There, defendant said he would not take a Breathalyzer test without his lawyer present. In the end, he never took the test.\nOn cross-examination, Officer Craig admitted that he could not name the specific words that defendant had slurred. Officer Craig also admitted that defendant had not evidenced every outward manifestation of being under the influence of alcohol. For example, although defendant swayed on his feet during the field sobriety testing, he did not fall to the ground. Nevertheless, Officer Craig reaffirmed his belief that defendant had failed the tests. Officer Craig denied that defendant had said he had any injuries that would prevent him from performing the tests. Nor did defendant say that he had any missing or wooden limbs, such as a wooden leg. Although Officer Craig said that he did not ask defendant about injuries and prostheses, Officer Craig said that defendant showed no outward signs of having any non-alcohol-related impairment to his test-taking ability. And, although Officer Craig acknowledged that defendant had been wearing workboots during the testing, Officer Craig said that these were not the kind of \u201chigh heels\u201d that might prevent a suspect from performing well during the testing.\nDefendant contradicted most of what the two police officers said. According to defendant, on the evening of his arrest, he had gone to meet his fianc\u00e9e and the Besches at the Wheaton Bowl. He had taken a cab to get there, because his driver\u2019s license was revoked. While there, he did not drink much. In fact, because he did not feel well, he drank only about half a beer. Instead of drinking, defendant said, he ate three buckets of popcorn. The others, however, were \u201cpretty smashed\u201d by the time they left the Wheaton Bowl. But despite being intoxicated, defendant\u2019s fianc\u00e9e got behind the wheel of her car and began driving. No sooner had she done so, however, than she almost backed into a ditch. At that point, even though his license was revoked, defendant took over behind the wheel. Then the four drove off.\nNot far down the road, defendant was pulled over by Sgt. Yanz. Before being pulled over, defendant said, he was driving well. Defendant denied striking the curb when he pulled over. Nevertheless, defendant conceded that he had said to his companions that he was \u201cfucked\u201d and \u201cgoing to jail.\u201d Defendant said that he had said this only because he was driving without a valid license.\nDefendant said he had no trouble getting out of his car and walking over to where Officer Craig waited to administer the field sobriety tests. Defendant said that, before he began the tests, Officer Craig (contrary to what he had testified to) asked defendant if he had any injuries or wooden legs that would prevent him from performing the tests. And, also contrary to Officer Craig\u2019s testimony, defendant said he informed Officer Craig that, in high school, he, defendant, had had knee surgery that had been necessitated by football injuries.\nDespite his injuries, defendant said, he performed well on the field sobriety tests. He said that, after each test, Officer Craig said \u201cgood.\u201d Still, at the conclusion of the tests, Officer Craig placed defendant under arrest. However, according to defendant, Officer Craig did not tell defendant that he was being arrested for DUI. For his part, defendant said he assumed that he was being arrested for driving while his license was revoked. But after he arrived at the police station, Officer Craig asked defendant to take a Breathalyzer test. At that point, defendant realized he had been arrested for DUI. He was \u201cshocked.\u201d He declined to take a Breathalyzer test without his lawyer present.\nIn closing arguments, the State argued that the evidence showed defendant was guilty of both DUI and DWLR. Defense counsel, meanwhile, argued that the evidence did not establish guilt beyond a reasonable doubt of DUI. In particular, defense counsel highlighted the uncontradicted fact that defendant had not shown many of the common signs of drunkenness. Defense counsel also attacked Officer Craig\u2019s testimony that defendant had failed the field sobriety tests.\nTurning to the DWLR charge, defense counsel conceded that defendant had driven with a revoked license. But defense counsel argued that defendant did so only because everyone else in the car was so intoxicated. For this reason, defense counsel argued that \u201cpublic policy\u201d counseled against finding defendant guilty of DWLR. As defense counsel put it:\n\u201cWas Mr. Barcik driving that vehicle while his license was revoked? Absolutely yes, absolutely. Does that mean you should find him guilty of that offense? Guess what? You today are the judges in this case. You today are the law in this case. You today can find that man not guilty of driving while license revoked, and on what basis, ladies and gentleman? Something that we call public policy. ***\nWell, what do we have here, ladies and gentleman, which really, which really defines the public policy in Illinois? Should we allow a person[J in this case Anita [defendant\u2019s fianc\u00e9e], the owner of that vehicle, [to drive]? As a matter of fact, there is no dispute that she was unfit to drive. *** And that [the] [ ]other *** occupants of that vehicle, the two men[,] were [un]fit to drive.\nSo should you as judges say[:] you know what, the public policy in Illinois should be make [them] drive, make [them] hit somebody, make [them] kill somebody[?] ***\nYou as judges in this case can say you know what *** if there is a [sober] person in the car, let them take the responsibility to make sure that no deaths occur, to make sure that no injury occurs. ***\n***[U]nder the facts of this case, under the circumstances of this case, we are not going to find him guilty of driving while license revoked because we want to promote the public policy and say if you see somebody drunk and you\u2019re in the car, you better damn well take action to avoid injury to the citizens of the State of Illinois.\nThat\u2019s why I submit to you that you can go back there and find that man not guilty.\u201d\nDefense counsel concluded: \u201cSend a message that says *** we don\u2019t want people to be irresponsible and let drunk people drive, because there is no question Anita was drunk. There is no question that everybody else in that vehicle was unfit to drive. [Defendant] did the responsible thing. Don\u2019t make him a criminal for it.\u201d\nThe jury found defendant guilty of both DUI and DWLR He filed, among other things, a postconviction petition, arguing that he had been denied the effective assistance of counsel. Specifically, defendant claimed that counsel was ineffective because he had not called as witnesses the Besches and defendant\u2019s fianc\u00e9e. Defendant said these witnesses would have testified that he was not drunk on the night of his arrest. However, defendant did not attach to his petition affidavits from all three witnesses. Instead, without explanation, he attached affidavits only from himself and his fianc\u00e9e. In her affidavit, defendant\u2019s fianc\u00e9e stated that defendant was \u201ccompletely sober\u201d and that he was driving because he was the only \u201ccompletely sober\u201d person in the car. She stated further that defendant\u2019s counsel \u201cinformed [her] that he did not need [her] testimony to win [defendant\u2019s] trial.\u201d She concluded that \u201cit was not right that [defendant] was charged with D.U.I. because he was entirely sober, and this is a fact.\u201d\nThe trial court summarily dismissed defendant\u2019s petition. In a written order setting out its decision, the trial court stated that, because defendant had not attached to his petition affidavits from the Besches, the trial court would not consider defendant\u2019s allegation that counsel was ineffective in not calling them as witnesses. However, the trial court stated that it did consider defendant\u2019s allegation that counsel was ineffective for not calling defendant\u2019s fianc\u00e9e as a witness. The trial court found that that allegation did not state the gist of a meritorious claim of ineffectiveness. This was so, the trial court reasoned, because defendant\u2019s fianc\u00e9e was defendant\u2019s fianc\u00e9e, and because, according to defendant\u2019s testimony, she was highly intoxicated on the night of defendant\u2019s arrest. Defendant appealed that decision, and we dismissed his appeal for lack of jurisdiction. But the supreme court, in the exercise of its supervisory authority, ordered us to assume jurisdiction and to decide on the merits defendant\u2019s appeal from the dismissal of his postconviction petition.\nII. ANALYSIS\nThe Act provides a remedy to defendants who have suffered substantial violations of their constitutional rights. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). When the death penalty is not involved, there are theoretically three stages to proceedings under the Act. People v. Boclair, 202 Ill. 2d 89, 99 (2002). However, in the present case, defendant\u2019s petition was dismissed at the first stage, so it is only this stage with which we are concerned. At this stage, the trial court determines whether the defendant\u2019s allegations sufficiently demonstrate a constitutional violation that would necessitate relief. People v. Coleman, 183 Ill. 2d 366, 380 (1998). In making this determination, the court may dismiss the petition if it is not supported by affidavits, records, or other evidence and does not explain the absence of such supporting material. 725 ILCS 5/122 \u2014 2 (West 2002); People v. Collins, 202 Ill. 2d 59, 66 (2002). Also, the court may summarily dismiss the petition if the court finds that the petition is \u201cfrivolous or is patently without merit.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002); Coleman, 183 Ill. 2d at 379. A petition is \u201cfrivolous or patently without merit\u201d if it does not state the gist of a constitutional claim. Edwards, 197 Ill. 2d at 244. We review de novo the first-stage dismissal of a postconviction petition. People v. Pendleton, 356 Ill. App. 3d 863, 866 (2005).\nHere, defendant alleged in his petition that he did not receive the effective assistance of counsel. Specifically, he alleged that his counsel was ineffective for not calling his passengers to testify that he was not drunk on the night of his arrest. When in a postconviction petition a defendant attacks the competency of trial counsel for having failed to call or contact certain witnesses, the defendant must attach to his petition affidavits from those witnesses. People v. Arias, 309 Ill. App. 3d 595, 597-98 (1999). In this case, although defendant had three passengers \u2014 Duane Besch, Brian Besch, and defendant\u2019s fianc\u00e9e\u2014 defendant attached to his petition affidavits from only himself and one of his passengers, namely, his fianc\u00e9e. Moreover, defendant did not explain in his petition why he had failed to attach affidavits from the other passengers. See 725 ILCS 5/122 \u2014 2 (West 2002) (\u201cThe petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached\u201d). Therefore, defendant can succeed in his attack on counsel\u2019s competency only if counsel was ineffective for not calling defendant\u2019s fianc\u00e9e as a witness. We turn now to consider this issue.\nBoth the United States and Illinois Constitutions guarantee a defendant the right to effective assistance of counsel. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a7 8. The purpose of this guarantee is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 691-92, 104 S. Ct. 2052, 2062-63 (1984). The ultimate focus of the inquiry is on the fundamental fairness of the challenged proceedings. Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. However, there is a strong presumption of outcome reliability, so a defendant must show that counsel\u2019s conduct \u201cso undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u201d Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. To do so, the defendant must establish both (1) that counsel\u2019s performance was deficient; and (2) that the deficiency prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Failure to establish either prong is fatal. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nWith regard to the second prong, the burden is on the defendant to affirmatively prove prejudice. Strickland, 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067. To establish prejudice, the defendant must show that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d 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.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nHere, even assuming counsel was deficient for not calling defendant\u2019s fianc\u00e9e, defendant\u2019s claim would still fail because defendant cannot establish prejudice. To see why this is so, we will consider her testimony with regard to each of the crimes with which defendant was charged.\nFirst, as to DWLR, defendant admitted that he drove while his license was revoked. However, defense counsel argued that defendant should nevertheless be found not guilty. Counsel argued that this was so because defendant had to drive in order to protect the public from his drunken fianc\u00e9e. In light of the evidence, this was the only argument counsel could make. See People v. Ganus, 148 Ill. 2d 466, 473-74 (1992) (where evidence of guilt was overwhelming, counsel was not ineffective for arguing for jury nullification). And the only support that defendant\u2019s fianc\u00e9e could have given this argument was to testify that she was too intoxicated to drive. But there was no dispute on this point. Indeed, Sgt. Yanz himself testified that defendant\u2019s fianc\u00e9e was too intoxicated to drive. Thus, there is no reasonable probability that, had counsel called defendant\u2019s fianc\u00e9e as a witness, the result of the DWLR proceeding would have been different. In other words, defendant cannot show he was prejudiced by his counsel\u2019s decision. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nSecond, as to DUI, both Sgt. Yanz and Officer Craig testified that defendant appeared to be intoxicated. Specifically, the officers testified that defendant smelled of alcohol and had bloodshot eyes. Additionally, Officer Craig, who had had prior contact with defendant, testified that defendant\u2019s speech was slightly slurred. And, although the officers admitted that defendant did not exhibit every sign of drunkenness, Officer Craig testified that defendant failed every one of the field sobriety tests he was given. Despite all of this evidence, defendant argues that counsel\u2019s decision not to call defendant\u2019s fianc\u00e9e amounted to ineffective assistance. We disagree.\nTo be sure, as defendant points out, counsel\u2019s decision not to call defendant\u2019s fianc\u00e9e left defendant\u2019s claim of sobriety uncorroborated. As defendant also points out, counsel may be deemed ineffective if counsel fails to call a witness who could corroborate an otherwise uncorroborated defense. See People v. Brown, 336 Ill. App. 3d 711 (2002). Here, however, counsel was not ineffective for not calling defendant\u2019s fianc\u00e9e. This is because, as with the DWLR proceeding, there is no reasonable probability that, had counsel called defendant\u2019s fianc\u00e9e, the result of the DUI proceeding would have been different. That is, defendant cannot show that counsel\u2019s not calling defendant\u2019s fianc\u00e9e prejudiced defendant. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nThere are two important reasons why this is so. The first reason is that, because of her relationship to defendant, defendant\u2019s fianc\u00e9e likely would not have been considered a credible witness. See People v. Deloney, 341 Ill. App. 3d 621, 635 (2003) (rejecting a claim of ineffectiveness where \u201cthe alibi witnesses [that counsel did not call] were defendant\u2019s cousins and, as such, their credibility may have carried little weight\u201d); People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (rejecting a claim of ineffectiveness where \u201c[a] 11 three of the potential alibi witnesses may have been related to codefendant ***, and thus, their credibility may have carried little weight\u201d). The second reason is that, because of her intoxication on the night of defendant\u2019s arrest, defendant\u2019s fianc\u00e9e\u2019s perception of defendant\u2019s condition that night probably would not have carried much weight with the jury. Defendant argues that just because his fianc\u00e9e was too intoxicated to drive, does not mean that she was too intoxicated to perceive how much he had to drink and whether he was intoxicated. Perhaps not. But her intoxication likely would have undermined the weight the jury gave to her testimony. For both of these reasons, defendant has not shown that he was prejudiced by counsel\u2019s decision not to call defendant\u2019s fianc\u00e9e.\nIn an effort to avoid the above conclusion, defendant argues that Brown supports his claim of ineffectiveness. We disagree. In Brown, the defendant filed a postconviction petition, arguing, among other things, that he could not have committed the murder he was convicted of committing, because, at the time of the crime, he was not in the same city as the victim. Brown, 336 Ill. App. 3d at 714-15. In his petition, the defendant further claimed that his lawyer had not permitted him to testify and had failed to call three alibi witnesses who would have testified that the defendant was not in the same city as the victim at the time of the crime. The defendant\u2019s petition was accompanied by affidavits from both himself and the three witnesses. Brown, 336 Ill. App. 3d at 715. In their affidavits, two witnesses averred that they had contacted the defendant\u2019s lawyer and informed him of the testimony they could offer, but the defendant\u2019s lawyer had nevertheless failed to call them as witnesses. Brown, 336 Ill. App. 3d at 718-19. The court held that, based on counsel\u2019s allegedly preventing the defendant from testifying and on counsel\u2019s failing to call crucial witnesses, the defendant\u2019s petition sufficiently stated a claim of ineffective assistance of counsel. Brown, 336 Ill. App. 3d at 720.\nBrown is readily distinguishable from the present case. To begin with, there defense counsel allegedly prevented the defendant from exercising his constitutional right to testify. No similar claim is made here; in fact, defendant did testify. More importantly, defendant\u2019s testimony aside, as discussed above, it is clear here that the testimony of defendant\u2019s fianc\u00e9e likely would have added little to defendant\u2019s defense. Again, with regard to DWLR, her testimony was unnecessary; with regard to DUI, her testimony likely would have been of little weight in light of both her relationship to defendant and her intoxication. By contrast, in Brown, there was no suggestion that the alibi witnesses had credibility problems or would have offered cumulative testimony. Therefore, Brown does not undermine the conclusion that defendant cannot establish prejudice as a result of his counsel\u2019s decision not to call defendant\u2019s fiancee.\nWe find additional support for this conclusion in Deloney. There, following his conviction of first-degree murder, the defendant filed a postconviction petition, alleging, among other things, that his counsel was ineffective for not calling two potential alibi witnesses. Deloney, 341 Ill. App. 3d at 635. The court rejected the defendant\u2019s claim. In doing so, the court reasoned that the witnesses were the defendant\u2019s cousins and, as such, their credibility would have been suspect. Deloney, 341 Ill. App. 3d at 635. The court also reasoned that their testimony could have contradicted the defendant\u2019s own alibi claim. Thus, the court found that the defendant could not establish that he had received ineffective assistance. Deloney, 341 Ill. App. 3d at 635. Neither can defendant do so here. First, the credibility of defendant\u2019s fianc\u00e9e was clearly suspect. Second, her perception was questionable. Third, although unlike in Deloney her testimony would not have directly contradicted anything defendant said, at least with regard to DWLR it would not have added anything. Thus, here, like in Deloney, defendant cannot establish ineffectiveness.\nTo summarize, defendant cannot establish that he was prejudiced by counsel\u2019s decision not to call defendant\u2019s fianc\u00e9e. As to the DWLR charge, her testimony was completely unnecessary. As to the DUI charge, her testimony likely would have carried little weight. Because defendant cannot establish prejudice, he cannot establish ineffectiveness. See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Therefore, the trial court correctly summarily dismissed defendant\u2019s petition.\nIII. CONCLUSION\nFor the reasons stated, we vacate our prior decision in part and affirm the judgment of the circuit court of Du Page County.\nAffirmed.\nCALLUM and GILLERAN JOHNSON, JJ., concur.\nDefendant stated only that he \u201c[did] not have the affidavits from *** [the Besches;] however[,] they will provide affidavits to this court in support of this petition.\u201d", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Marshall M. Stevens, 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. VICTOR M. BARCIK, Defendant-Appellant.\nSecond District\nNos. 2\u201403\u20141045, 2\u201404\u20140476 cons.\nOpinion filed April 19, 2006.\nRehearing denied June 5, 2006.\nThomas A. Lilien and Steven E. Wiltgen, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Marshall M. Stevens, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0183-01", "first_page_order": 201, "last_page_order": 212 }