Rule 23 order filed

April 3, 2015; Motion to publish granted NO. 5-13-0189 April 20, 2015. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 05-CF-1784 ) GARY WINGATE, ) Honorable ) Michael N. Cook, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Stewart concurred in the judgment and opinion.

OPINION

¶1 The defendant, Gary Wingate, appeals the dismissal, by the circuit court of St.

Clair County and at the second stage of proceedings, of his petition for postconviction

relief. For the following reasons, we affirm.

¶2 FACTS

¶3 The facts necessary to our disposition of this appeal follow. They are derived

from this court's review of the record on appeal, as well as from our earlier disposition in

this case, in which, on direct appeal, we affirmed the defendant's convictions and his

sentence. People v. Wingate, No. 5-09-0267 (2010) (unpublished order under Supreme

1 Court Rule 23). As we explained therein, the defendant was charged with first-degree

murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon, all

in connection with the shooting death of Darlene Russell on November 1, 2005. The trial

court granted the defendant's motion to sever the aggravated-unlawful-use-of-a-weapon

charge, and the State elected to proceed on the remaining counts.

¶4 Andre Garrett testified at the defendant's jury trial as follows. On November 1,

2005, he was living with his wife, Darlene Russell, at 5204 Caseyville Avenue in

Washington Park, Illinois. Garrett saw the defendant, who lived nearby, walking down

52nd Street. Garrett approached the defendant, whom he had known for more than 20

years, to speak with the defendant about some money the defendant owed Russell. As

Garrett approached, the defendant raised his fists and began to talk "crazy." Fearing that

the defendant would strike him, Garrett punched the defendant, knocking him down.

Garrett testified that he was a former amateur boxing champion and that he "never owned

a gun, never carried a gun." After knocking down the defendant, Garrett went back into

his house. Russell then went to speak with the defendant. Garrett followed her, telling

her to come back inside. Garrett saw the defendant in a nearby yard and saw a person he

knew as "Torre" (Torrian Hopkins), who had been with the defendant when Garrett

punched him, across the street, walking across a field. Garrett urged Hopkins to stop and

talk with him, but Hopkins continued walking and said, "I ain't got nothing to do with it."

¶5 Garrett then heard a sound he described as "du-du-du-du-du." He turned and saw

the defendant on his knees and firing a weapon in Garrett's direction. At first, Garrett

thought the defendant was firing blanks, but when he heard gunfire strike his house, he 2 and Russell ran to the house. As Russell was standing on the porch reaching for the door,

she was struck and killed by gunfire. The shooting stopped, and when Garrett arrived at

the porch, he saw blood on it. Garrett turned and saw the defendant fleeing through an

alley carrying "a big rifle."

¶6 Keith McNeal testified that on November 1, 2005, he was at the home of his

cousin, Bryan Turner, at 1542 North 52nd Street, helping Turner repair an automobile.

Just to the south of Turner's house was the house where the defendant stayed. McNeal

saw Garrett and the defendant and heard them arguing about money. McNeal went inside

to get some tools, and when he came out, he saw the defendant lying on the ground. The

defendant got up and said that he was "going to get" Garrett. Turner then sent McNeal to

a nearby liquor store to purchase some soft drinks. As McNeal was walking back to

Turner's house, he heard the sound of gunfire. As he reached Turner's house, he saw

"somebody" walk down the alleyway and turn left onto 49th Street. McNeal could not

positively identify the man he saw in the alley, but his height and build were similar to

the defendant's.

¶7 Bryan Turner testified that he saw Garrett strike the defendant and knock him to

the ground. After Garrett left, the defendant got up and walked away. Douglas Scott

testified that on November 1, 2005, he was at Turner's house helping Turner and McNeal

work on a car. The defendant was outside the house next door. Garrett walked up and

the two men began arguing about money. Garrett struck the defendant, knocking him to

the ground. Garrett walked away. After about 10 or 15 minutes, the defendant got up

and went into his house. Russell came over to Garrett and tried to calm him down. The 3 defendant came out of his house carrying an "AK-47" and went towards the alley. The

defendant then began shooting at Garrett. The defendant knelt as he fired. He stood up,

walked toward Garrett's house, knelt, and then fired some more. Garrett was running

from the defendant, toward his house. Scott saw Russell "laying [sic] there." The

defendant then ran away, still holding the rifle.

¶8 Willie T. Lee testified that on November 1, 2005, he was outside his automobile

repair business when he heard the sound of gunfire. Shortly thereafter, Lee saw "[a]

black guy" with a rifle coming up the alley towards him. The man turned down a street,

walked up three houses, and went into an abandoned building. Lee did not see the man's

face clearly but described him as being short, with a stocky build. Dennis Janis, a crime

scene investigator with the Illinois State Police, testified that on November 1, 2005, he

was directed to the vicinity of Caseyville Avenue and 52nd Street in Washington Park,

Illinois. Garrett's house had sustained damage that was "consistent with gunshot

damage." Janis recovered "a projectile" from the side door of the house and "a bullet

jacket" from a "porch post." Two vehicles near the house had also been damaged by

gunfire. Janis recovered "a projectile and a fragment" from one of the vehicles. Janis

searched the vicinity around Garrett's house and found a number of "discharged 7.62

cartridge cases." Janis also searched an abandoned house nearby, where he found an

"assault rifle" under a mattress. The following day Janis attended Russell's autopsy. The

pathologist removed a "jacket and fragment" from Russell's body, which Janis collected

and preserved. After the autopsy, Janis returned to the Garrett residence, where he found

further gunshot damage inside the kitchen. He also found several bullets and bullet 4 fragments inside the residence.

¶9 Benjamin Koch, a crime scene investigator with the Illinois State Police, testified

that when he arrived at the crime scene, a detective asked him to help search an

abandoned house nearby. In the living room, Koch lifted a mattress off the floor and

found an "assault rifle." Koch contacted Janis, who took possession of the rifle. James

Hall, a forensic scientist specializing in firearms and tool mark identification, testified

that his testing demonstrated that the cartridge cases and the bullet and bullet fragments

found at the scene, as well as the bullet fragments recovered from Russell's body, all

came from the rifle.

¶ 10 The defendant testified as well, stating that on November 1, 2005, he and his

nephew, Torrian Hopkins, were standing outside his house when they were approached

by Andre Garrett. The defendant had borrowed money from Russell and was late paying

it back. When Garrett asked the defendant if he had Russell's money, the defendant

replied that his check had not arrived and that the defendant would pay him as soon as it

did. When the defendant looked away briefly, Garrett struck him twice, knocking him

down. When he regained consciousness, he got up off the ground. Hopkins was gone

and no one else was around. The defendant then walked a few feet to the fence in his

yard and grabbed his "assault rifle." The defendant claimed that he retrieved his rifle

because Garrett was "a drug dealer" and "a loan shark" who was "known for carrying

guns," and the defendant assumed that Garrett "had gone home to get a gun." The

defendant had been in Garrett's house before and had seen guns there. As the defendant

stood by his fence holding the rifle, he saw Garrett emerge from his house and begin to 5 walk in the defendant's direction. The defendant stepped out into the street to show

Garrett that he was armed, but Garrett continued walking toward him. Although the

defendant did not see a weapon in Garrett's possession, he began firing at Garrett in order

to frighten him. He was not trying to hit Garrett. When the defendant started shooting,

Garrett stopped. The defendant then stopped shooting. He saw Garrett "reach[ ] down

his side like he was going in his pocket." Suspecting that Garrett was reaching for a

weapon and not wanting to wait until Garrett had the weapon in hand, the defendant

began firing again. Garrett turned and ran towards his house but stopped and knelt

between two vehicles in his driveway. Believing that Garrett was going to start shooting

at him, the defendant continued to fire in the direction of the vehicles. At that point, the

defendant was trying to hit Garrett but was acting out of fear for his own safety and a

desire to defend himself. The defendant did not see Russell at any point during the entire

episode. After he stopped shooting, the defendant ran down the alley and to a nearby

abandoned house, where he left the assault rifle. He then went to a friend's house in East

St. Louis, where police arrested him the following day.

¶ 11 At the conclusion of the trial, the jury was instructed on both self-defense and

second-degree murder, under both the serious-provocation prong and the unreasonable-

belief prong, as well as first-degree murder and aggravated discharge of a firearm, the

two charged offenses. The jury found the defendant guilty of first-degree murder and

aggravated discharge of a firearm.

¶ 12 On November 26, 2006, the defendant filed a posttrial motion for a new trial,

arguing, inter alia, that the State failed to prove him guilty beyond a reasonable doubt of 6 the charges. On April 13, 2007, he filed an amended posttrial motion arguing that trial

counsel, Karen Craig, had rendered ineffective assistance of counsel for failing to call

Torrian Hopkins as a witness because Hopkins could have testified that Garrett was

armed with a firearm when he approached the defendant. On March 7, 2008, the

defendant filed a second amended posttrial motion, adding an allegation that Craig had

rendered ineffective assistance by failing to argue that the defendant was unfit to stand

trial. The defendant also filed a petition pursuant to section 104-11 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/104-11 (West 2006)) requesting the trial court

to appoint an expert to examine the defendant and to determine whether the defendant

had been fit to stand trial. The trial court appointed Dr. Daniel Cuneo to examine the

defendant.

¶ 13 On November 12, 2008, a hearing was held on the defendant's fitness petition and

on the ineffective-assistance allegations of his posttrial motion. The defendant testified

that he had told Craig that Hopkins had witnessed the incident but that she failed to

contact him. The defendant also testified that at the time of the trial he was "hearing

voices" and "seeing things" and that he did not understand the nature and purpose of the

proceedings against him. The defendant testified that he had asked Craig to request a

fitness hearing but that she had not done so. The defendant introduced into evidence the

August 31, 2003, reports of Drs. Patel and Bermani, which indicate that the defendant

suffers from major depression, and the July 8, 2004, and September 14, 2004, reports of

Dr. Katzman, which indicate that the defendant suffers from schizoaffective disorder.

¶ 14 Dr. Cuneo testified that he is a clinical psychologist and has performed between 7 4,000 and 5,000 fitness examinations. Dr. Cuneo examined the defendant's medical

records and interviewed him on several occasions. It was Dr. Cuneo's opinion that the

defendant was feigning his reported psychiatric symptoms to avoid prosecution. Dr.

Cuneo opined that at the time of his trial the defendant had been able to understand the

nature and purpose of the proceedings against him and was able to assist in his own

defense.

¶ 15 Defense counsel Karen Craig testified that when she first spoke with the

defendant, he had indicated that a person he knew as "Tori" (Torrian Hopkins) had been

present during his argument with Garrett but that he did not know "Tori's" last name or

address. The defendant also told Craig that Hopkins had already left the scene when the

defendant regained consciousness and went to retrieve his rifle. Shortly before trial Craig

again spoke with the defendant regarding Hopkins, but the defendant still could not

provide her with any more information regarding him. Craig explained that because the

defense strategy of self-defense turned on what happened after the defendant had

retrieved his rifle and was approached by Garrett the second time, any testimony Hopkins

could provide would be of limited value because he had already left the scene by then.

Craig further testified that at no time did she observe anything regarding the defendant's

demeanor that would lead her to suspect that there was a bona fide doubt regarding his

fitness to stand trial.

¶ 16 The trial court denied the petition for a fitness determination, finding that the

defendant had been fit to stand trial. The trial court also denied the defendant's second

amended posttrial motion with respect to the allegations of ineffective assistance of 8 counsel, finding that Craig had not been ineffective for having failed to pursue the

Hopkins matter further, given the defendant's inability to demonstrate that Hopkins could

have provided any pertinent information.

¶ 17 On February 19, 2009, the defendant filed a third amended posttrial motion,

arguing, inter alia, that subsequent to his trial and to the filing of his original posttrial

motion, he learned of "newly discovered evidence" which would support his claim of

self-defense. Specifically, the defendant alleged that Torrian Hopkins would testify that

the defendant saw Garrett with a gun prior to shooting at him. Attached to the motion

was an affidavit from Hopkins wherein Hopkins averred that after Garrett knocked the

defendant to the ground, he went into his house and came back out with a gun in his

hand. It was after the defendant saw the gun that he went and got his own rifle and began

shooting at Garrett.

¶ 18 A hearing on the defendant's third amended posttrial motion was held on March

12, 2009. Torrian Hopkins testified that on November 1, 2005, he was talking to the

defendant when Garrett approached and asked the defendant for the money he owed

Russell. The defendant said he did not have it because his check had not arrived. Garrett

became angry and told the defendant that he then owed double the amount. When the

defendant stated that he would not pay double, Garrett punched him, knocking him down.

As Hopkins helped the defendant up, Garrett walked away and went into his house.

Hopkins then started walking towards the middle of the street. He saw Garrett coming

back out of his house carrying something that appeared to be a gun. As Hopkins

continued walking, he heard some gunshots. He then "struck off" across the street. On 9 cross-examination, however, Hopkins stated that he had not seen a gun but had

"assumed" that Garrett had a gun and that other people had said that Garrett had a gun.

The trial court denied the defendant's third amended posttrial motion, finding that

Hopkins's testimony would not lead to a different verdict on a retrial and that the

remaining claims did not warrant a new trial.

¶ 19 A sentencing hearing was held on April 20, 2009. The defendant was sentenced to

50 years' imprisonment. The defendant subsequently filed a motion to reconsider his

sentence, arguing that for a 46-year-old man, a 50-year sentence was tantamount to a life

sentence. The trial court denied the motion, finding that while the possibility of

rehabilitation was an important consideration, a 50-year sentence was appropriate given

the defendant's criminal history.

¶ 20 After this court affirmed the defendant's convictions and sentence on direct appeal,

the defendant, on October 20, 2011, filed pro se a petition for postconviction relief.

Therein, the defendant claimed that, based upon "newly discovered evidence," he was

"actually innocent" of the crimes of which he was convicted. Attached to the petition

was the affidavit of one Jeff Mosley, dated April 29, 2011, who averred that he too

witnessed the events of November 1, 2005. Mosley averred that he had been conversing

with Garrett, that he watched the first encounter between Garrett and the defendant from

"about 25 feet away," and that Garrett twice struck the defendant in the face with a silver

handgun, knocking the defendant down. Mosley averred that Garrett then walked past

Mosley and into Garrett's home. Mosley averred that Mosley "stayed standing there and

waiting on him to come back out," and that when Garrett did come back outside, "[a]bout 10 two minutes" later, Garrett did so "with his gun in his hand." Mosley averred that he

observed the defendant "grab a big gun *** and point it in [Garrett's] direction," and

that because both men now had guns, Mosley "took cover and continued to watch." He

averred that during this second encounter with the defendant, Garrett raised "his gun in

the direction of" the defendant, and that when the defendant then opened fire, Garrett

"took off running back towards his house and when he got there he ducked in between his

trucks in the driveway." Mosley did not describe what happened next, nor did he

describe the killing of Russell by the defendant. Mosley further averred that he waited

several years to come forward because he was a "close friend" of Garrett and Russell and

had "mixed emotions about coming forward." He also averred, "During all the

commotion between [the defendant] and [Garrett] it was impossible for [the defendant] to

know I was out there or I had witness [sic] what [Garrett] did and attempted to do to [the

defendant]."

¶ 21 Counsel was appointed for the defendant and an amended petition for

postconviction relief was filed on September 28, 2012. A second amended petition for

postconviction relief was filed by counsel on December 21, 2012 (the petition). It alleged

ineffective assistance of trial counsel, including on the basis of the failure of counsel to

locate witness Jeff Mosley prior to trial, and it alleged actual innocence on the basis of

Mosley's affidavit, which was again attached to the petition as an exhibit. The State

moved to dismiss the petition, and a hearing was held on the State's motion on March 20,

2013. At the conclusion of the hearing, the trial court dismissed the petition, and this

11 timely appeal followed.

¶ 22 ANALYSIS

¶ 23 On appeal, the defendant contends the petition should have advanced to a third-

stage evidentiary hearing because the petition "made a substantial showing that [the

defendant] was actually innocent based on Jeff Mosley's affidavit." He claims "Mosley's

affidavit constitute[s] newly discovered evidence because neither [the defendant], nor his

attorney, could have discovered that Mosley" was a witness to the events of November 1,

2005. He also claims that had the jury heard Mosley's version of events, "the result of the

trial would have likely been different." The State counters that the defendant's claim, as

supported by Mosley's affidavit: (1) is positively rebutted by the record; (2) does not

establish that the defendant is actually innocent; (3) cannot be construed to be newly

discovered evidence; and (4) would not probably change the outcome of a new trial.

¶ 24 We begin by noting our standard of review. When a trial court dismisses a

petition for postconviction relief at the second stage of proceedings, we review that

dismissal de novo, taking as true all well-pleaded facts that are not positively rebutted by

the trial record. People v. Pendleton,

(2006). To be entitled to a

third-stage evidentiary hearing, a petition for postconviction relief must make "a

substantial showing of a violation of constitutional rights." People v. Coleman,

(1998). In Illinois, petitioners may "assert a freestanding claim of actual

innocence based on newly discovered evidence." People v. Ortiz,

(2009). The evidence that supports such a claim "must be newly discovered; material and

not merely cumulative; and 'of such conclusive character that it would probably change 12 the result on retrial.' "

(quoting People v. Morgan,

(2004)).

"Newly discovered" evidence is "evidence that has been discovered since the trial and

that the defendant could not have discovered sooner through due diligence." Id. at 334.

"The focus of a freestanding claim of actual innocence is on the new evidence itself and

whether it would totally vindicate or exonerate the defendant." People v. Flowers,

. Where, as in the case before us, a claim of actual innocence is

dismissed at the second stage of proceedings, "the relevant question is 'whether the

petitioner has made a substantial showing of actual innocence such that an evidentiary

hearing is warranted.' "

(quoting People v. Lofton,

).

Moreover, "newly discovered evidence 'which merely impeaches a witness' will typically

not be of such conclusive character as to justify postconviction relief." People v.

Barnslater,

(2007) (quoting People v. Chew,

(1987)); see also People v. Harris,

(1987) ("Newly

discovered evidence which merely has the effect of impeaching, discrediting, or

contradicting a witness does not afford a basis for a new trial.").

¶ 25 For the reasons that follow, we affirm the ruling of the trial court. The first reason

we affirm is that with regard to the requirement that the newly discovered evidence be of

such conclusive character that it would probably change the result on retrial (see People

v. Ortiz,

(2009)), we agree with the reasoning of the Barnslater and

Harris courts, and conclude that any evidence Mosley might offer, which we take as true

for purposes of this appeal, would merely impeach Garrett's testimony that he "never

owned a gun, never carried a gun," and thus would not justify postconviction relief. See 13 People v. Barnslater,

(2007) ("newly discovered evidence

'which merely impeaches a witness' will typically not be of such conclusive character as

to justify postconviction relief" (quoting People v. Chew,

(1987))); see also People v. Harris,

(1987) ("Newly discovered

evidence which merely has the effect of impeaching, discrediting, or contradicting a

witness does not afford a basis for a new trial."). Therefore, we decline to conclude that

Mosley's proffered impeachment testimony is of such conclusive character that it would

probably change the result on retrial. It simply is not.

¶ 26 A second, and independent, reason that we affirm the ruling of the trial court is

that we do not agree with the defendant's claim that Mosley's affidavit meets the criteria

to be construed as "newly discovered" evidence on the basis of the defendant's bald

assertions, in his brief on appeal, that "[t]here was no reason to know of Mosley's

presence at the scene *** before Mosley stepped forward several years later" and that

"neither [the defendant], nor his attorney, could have discovered that Mosley" was a

witness to the events of November 1, 2005. The appellate court has previously ruled that

a defendant seeking relief on the basis of newly discovered evidence bears the burden of

demonstrating "that there has been no lack of due diligence on his [or her] part." People

v. Harris,

(1987). The appellate court's ruling in Harris is

consistent with the requirement, discussed above, that for purposes of seeking

postconviction relief, "newly discovered" evidence must be "evidence that has been

discovered since the trial and that the defendant could not have discovered sooner

through due diligence." People v. Ortiz,

(2009). In People v. 14 Barnslater,

(2007), the appellate court held that a defendant

was not entitled to an evidentiary hearing where his petition and accompanying

documents, even when taken as true and liberally construed in the defendant's favor at the

second stage of proceedings, failed to make a substantial showing that the defendant

could not have discovered the purportedly "newly discovered" evidence sooner through

due diligence on the defendant's part.

¶ 27 In his affidavit, Mosley claims he waited several years to come forward because

he was a "close friend" of Garrett and Russell and had "mixed emotions about coming

forward." Even if this assertion is treated as a statement of fact, and therefore is taken at

this point in the proceedings as true, it merely excuses Mosley's failure to come forward

sooner on his own accord, and it does not address the question of the due diligence of the

defendant in independently discovering Mosley as a witness. Mosley does not aver that

he was unavailable at any time prior to coming forward, and makes no other averment

that would allow us to conclude that he would not have offered his affidavit or testimony,

if asked, prior to the defendant's trial. Nor does Mosley make any other averment that

would allow us to conclude that he "essentially made himself unavailable as a witness,"

as did the witness in Ortiz. See

. Although Mosley speculates in his

affidavit, "During all the commotion between [the defendant] and [Garrett] it was

impossible for [the defendant] to know I was out there or I had witness [sic] what

[Garrett] did and attempted to do to [the defendant]," such speculation does not amount to

a statement of fact. To the contrary, it is a nonfactual and nonspecific assertion that

amounts to a conclusion; therefore, this court need not treat it as a well-pleaded fact that 15 must be taken as true at this stage of the proceedings and that is sufficient to require an

evidentiary hearing in this case. See, e.g., People v. Rissley,

(2003).

¶ 28 Indeed, unlike the affidavit in question in Ortiz, which demonstrated that the

newly discovered witness was standing in a location "where he would not have been seen

by [the] defendant" (

), Mosley's affidavit contains no such statement of

fact. To the contrary, the facts contained within Mosley's affidavit, taken as true, are that

he and Garrett were conversing just prior to Garrett's first encounter with the defendant,

which Mosley watched from "about 25 feet away." There are no facts in Mosley's

narrative that suggest he was in a location where he could not be seen by the

defendant−or for that matter by the other witnesses who were interviewed by police and

who testified at the defendant's trial−before, during, or after the defendant's first

encounter with Garrett, or during the early stages of the defendant's second encounter

with Garrett. Moreover, there are no facts that suggest that even when Mosley "took

cover and continued to watch" the escalation of the second encounter, he was in a

location where he could not be seen by the defendant. Because Mosley's affidavit, even

when taken as true and liberally construed in favor of the defendant, contains no

statements of fact that would support the contention that the failure to discover Mosley as

a witness prior to the defendant's previous trial was not due to a lack of due diligence on

the part of the defendant−and therefore because it does not support the contention that its

contents constitute newly discovered evidence that warrants an evidentiary hearing−the

defendant's argument that the petition should have advanced to an evidentiary hearing

because the petition "made a substantial showing that [the defendant] was actually 16 innocent based on Jeff Mosley's affidavit" necessarily fails.

¶ 29 Nevertheless, in the interests of justice, we will consider if any other evidence was

presented to the trial court that would demonstrate that the defendant had met his burden

of demonstrating due diligence so that Mosley's affidavit could be construed as newly

discovered evidence that would constitute a substantial showing of actual innocence

sufficient to warrant an evidentiary hearing. The defendant, in his sworn verification of

the petition, swore only that "the facts in this petition are true and correct in substance

and in fact." However, the petition itself, although filed by counsel, contains no facts

regarding the defendant's knowledge or lack of knowledge of Mosley's purported

witnessing of the shooting, and contains no other facts related to due diligence on the part

of the defendant to discover Mosley. It does not allege, for example, that the defendant

did not see Mosley at the scene of the crime, or that for some reason he could not have

seen Mosley at the scene of the crime, despite Mosley's averments as to his location as

the events unfolded; it does not allege that the defendant did not in fact know that Mosley

was at the scene of the crime; it does not allege that none of the other witnesses who were

interviewed by police failed to tell the police that Mosley was also at the scene of the

crime, and that therefore he could not have learned of Mosley's existence from those

witnesses or the police; it does not allege that the defendant did not learn of Mosley's

alleged witnessing of the shooting until Mosley came forward with his affidavit.

¶ 30 This is not to imply that all of the foregoing would be necessary to make a

substantial showing that the defendant's failure to discover Mosley prior to the

defendant's previous trial was not due to a lack of due diligence on the defendant's part. 17 The problem is that neither the petition nor its verification contains any facts that would,

if taken as true, validate the proposition that the defendant exercised due diligence in this

case with regard to discovering Mosley. On the basis of the record before us, we

conclude that this is not a case wherein well-pleaded facts, taken as true, merit the

proving ground of an evidentiary hearing; to the contrary, this is a case in which there are

no facts alleged that, even if true, would entitle the defendant to the relief he seeks.

Clearly, even the most liberal construction of an affidavit, petition, or sworn verification

cannot create from whole cloth facts that in no way exist therein. Accordingly, we hold

that the defendant has not met his burden of demonstrating that Mosley's affidavit is

newly discovered evidence that could not have been discovered earlier through due

diligence on the part of the defendant; therefore, the defendant did not make a substantial

showing of actual innocence sufficient to warrant an evidentiary hearing in this case.

¶ 31 A third, and again independent, reason that we affirm the ruling of the trial court is

that to the extent it could potentially reduce the defendant's liability from first-degree

murder to second-degree murder, the defendant's proffered evidence does not

demonstrate his actual innocence. At oral argument, we asked the parties to thereafter

provide supplemental argument and support therefor with regard to the question of

whether an actual innocence claim can encompass a situation in which the newly

discovered evidence might make the defendant guilty of a lesser offense, but not make

the defendant guilty of no crime at all. We have now received the supplemental materials

of the parties. The defendant reiterates that it is his position that on retrial, the newly

discovered evidence could lead to his complete acquittal, on the basis of self-defense, or 18 to his conviction for the lesser offense of second-degree murder. The defendant posits

that with regard to the latter situation, the relevant inquiry is whether a conviction for a

lesser offense is a "different outcome" than that of the first trial, and proposes to us that it

is. However, we conclude that the relevant inquiry with regard to the latter situation is

found within People v. Barnslater,

(2007).

¶ 32 Like the present case, Barnslater involves the dismissal of a defendant's petition

for postconviction relief at the second stage of proceedings.

. In Barnslater,

our colleagues in the First District discussed claims of actual innocence based on newly

discovered evidence. They pointed out that previous decisions of the appellate court

make it clear that "actual innocence" refers not to whether a defendant has been proven

guilty beyond a reasonable doubt, but instead means "total vindication, or exoneration."

(Internal quotation marks omitted.)

. Accordingly, "actual innocence requires

that a defendant be free of liability not only for the crime of conviction, but also of any

related offenses."

.

¶ 33 After reviewing the materials submitted with the defendant's petition for

postconviction relief, and construing those materials liberally in the defendant's favor, the

Barnslater court held that because the purported newly discovered evidence in that case

did not demonstrate that the defendant, "even if 'not guilty' of aggravated criminal sexual

assault predicated on aggravated kidnaping, is 'actually innocent' of any crime against

Y.B., including lesser included offenses of aggravated criminal sexual assault such as

simple criminal sexual assault or criminal sexual abuse," the defendant was not entitled to

postconviction relief.

. In the case at bar, the defendant argues that 19 Mosley's testimony, if consistent with his affidavit, "would support the claim of self-

defense and would also assist the jury in resolving whether [the defendant] should be

found guilty of second degree murder."

¶ 34 To the extent Mosley's proffered testimony could potentially reduce the

defendant's liability from first-degree murder to second-degree murder, we conclude that

pursuant to Barnslater, even if it did so, it would not support a claim of actual innocence.

See

("actual innocence requires that a defendant be free of liability not only for

the crime of conviction, but also of any related offenses"). Accordingly, the defendant

has not made a substantial showing of actual innocence on this basis.

¶ 35 To the extent Mosley's proffered testimony could potentially lead to the

defendant's complete acquittal, on the basis of self-defense, we conclude that even if we

assume, arguendo, that the testimony would under those circumstances be exonerating to

the extent it could support a claim of actual innocence, that would not assist the defendant

in overcoming the infirmities that justify us in affirming the trial court's ruling for the two

other independent reasons discussed above.

¶ 36 CONCLUSION

¶ 37 For the foregoing reasons, we affirm the dismissal of the defendant's petition for

postconviction relief.

¶ 38 Affirmed.

20

NO. 5-13-0189

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT _____________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 05-CF-1784 ) GARY WINGATE, ) Honorable ) Michael N. Cook, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________________

Rule 23 Order Filed: April 3, 2015 Motion to Publish Granted: April 20, 2015 Opinion Filed: April 20, 2015 _____________________________________________________________________________________

Justices: Honorable James R. Moore, J.

Honorable Judy L. Cates, P.J., and Honorable Bruce D. Stewart, J., Concur _____________________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, for Dan W. Evers, Assistant Appellate Defender, Fifth Judicial District, 909 Appellant Water Tower Circle, Mt. Vernon, IL 62864 _____________________________________________________________________________________

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square, for Belleville, IL 62220; Patrick Delfino, Director, Stephen E. Norris, Deputy Appellee Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 _____________________________________________________________________________________