"a EC i 99313 Stx?i?iivf? 013?: Decethi?e? 29312009 i .. r' 9.. 7" . 9E9999. 113 tad of, this order may be ?anged or ear-remit pn?cr to the mmeemadisms?mat lite same No. 1-99-2837 IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Appeal from the Circuit Court of Respondent-Appellee, Cook County V. ROOSEVELT MYLES, Petitioner- Appellant. No. 93 CR 1003 Honorable DENNIS PORTER, Judge Presiding. ORDER Petitioner, Roosevelt Myles, appeals the dismissal of his pro se petition for postconvietion relief. We reverse and remand. Petitioner was charged by indictment number 93-1003 with ?rst degree murder and attempted armed robbery for the shooting death of Shaharain Brandon, which occurred on November 16, 1992. Following a jury trial, defendant was convicted and sentenced to serve consecutive sentences in prison of 50 years for ?rst degree murder, and 10 years for attempted Scanned by CamScanner 1-99-2837 0 o? - c: armed robbery. Petitioner?s convictions and sentences were a?inncd by court 0? FBbruary 9, 1993 (unpublished Rule 23 order.) On October 6, 1998, the Illinois Supreme Court declined to hear petitioner?s appeal of that order. On January 11, 1999, petitioner ?led his pro se petition for post relief, pursuant . HE. to the Post-Conviction Hearing Act (the Act) (725 ILCS 5l122-1 el seq. (West 1996)), which was summarily dismissed by the circuit court on June 30, 1999, as frivolous and patently without merit. Defendant now appeals the denial of his postconviction petition without an evidentiary hearing, arguing that he has made a substantial showing that he was deprived of his constitutional rights. Our review of the trial court's decision to dismiss a postconviction petition without an evidentiary hearing is de novo. People v. Coleman, 183 Ill. 2d 366, 387-89, 701 1063 (1998). As explained by our supreme court, the Act creates a three-step process for adjudicating claims of constitutional deprivation following a criminal conviction; in the ?rst stage, the trial court determines whether the petition is frivolous or patently without merit. People v. Goulmey, 174 Ill. 2d 410, 418, 675 102 (1996). When reviewing a decision made at the ?rst stage of a postconviction proceeding, we must assume the allegations in the petition are true and construe them liberally. Coleman, 183 Ill. 2d at 382, 701 1063. The inquiry into whether a post-conviction petition contains suf?cient allegations of constitutional deprivations does not require the trial court to engage in any fact??nding or credibility determinations. People v. 191 Ill. 2d 168, 174, 730 32, 3S (2000). Rather, at this initial stage, in order to survive summary dismissal, a petition need only contain a simple statement which presents the gist Scanned by CamScanner '?lT -2 2i 199.2337 0f, meritOI'lOUS constitutional claim. People v. Ganlmey, 174 Ill. 2d at 418 675 2d 102 (1996); People v. DeSavieu, 256111. App. 3d 731, 733, 628 1117, 1119 (1993). In pro se petition, petitioner alleged, among other things, that his trial counsel was ine?'ective for failing to investigate and call three known alibi witnesses at trial. Petitioner Speci?cally alleged that Michael Hooker, Hubert Floyd, and Derrick Floyd would have testi?ed that, at the time of the shooting, petitioner was with them in front of the house of an individual named Ronnie Bracy, and, therefore, petitioner could not have been the gunman in this case. Assertions that are nonfactual and nonspeci?c and that merely amount to conclusions are not suf?cient to require an evidentiary hearing. People v. Coleman, 183 111.2d 366, 381, 701 1063 (1998). The assertions in the petition here are not conclusory; they are speci?c factual allegations which we must take as true. The allegations contained in petitioner?s pro se postconviction petition, taken as true, are suf?cient to invoke relief under the Act. The allegations are not contradicted by the record; rather they concern matters outside the record. Although petitioner?s allegations were not supported by any af?davits from the individuals petitioner has alleged were alibi witnesses his trial counsel failed to call, petitioner has satis?ed the requirements of the statute. The relevant statutory language provides as follows: ?The petition shall have attached thereto af?davits, records, or other evidence supporting its allegations or shall state why the same are not attached.? 725 ILCS Sf122-2. Petitioner clearly stated in his petition that the needed evidentiary submissions which were omitted were directly due to his incarceration in a maximum security facility and limited ?Jnds. To establish a claim for ineffective assistance of counsel, a defendant must Show that Scanned by CamScanner (N . . 6' a 5? 1-99-2337 counsel's Pelformance fell below an objective standard of reasonableness and that, bu 0T counsel?s Professional errors, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 US. 668, 680, 30 L. Ed. 674, 104 S. Ct- 2052 (1934); People v. Albanese, 104 111. 2d 504, 473 1246 (1984). Although counsel's decision regarding whether to present a particular witness is generally considered strategic, counsel may be deemed ineffective where counsel fails to make a proper investigation or fails to present Exculpatory evidence, such as testimony that would support an otherwise uncorroborated defense. See, People v. lore, 305 Ill. App. 3d 607, 612, 712 826, 829-30 (1999) (?irther explaining that once evidence could be heard on such an issue, the trial court would be in a better position to determine whether defendant received ineffective assistance of counsel.) A?er plenary review of this matter, we conclude that petitioner has presented the gist of a meritorious claim of a constitutional violation and that he is entitled to an evidentiary hearing. thus, the petition should not have been summarily dismissed as ?ivolous or patently without merit. Our conclusion that the petitioner met his burden at the initial stage of the proceeding, does not consider the issue of whether it will withstand challenge at a later point in the proceedings. People v. Von Perbandt, 221 Ill. App. 3d 951, 583 90 (1991). Our decision merely means that the petition advances to stage two where petitioner will have the assistance of counsel. In this appeal, petitioner puts forth an additional claim that his appellate counsel was ineffective on direct appeal in failing to argue for a reversal of the attempted armed robbery Scanned by CamScanner ?l 3' ?w "am; 1 1 39?283 7 conviction. Because this claim was not I I II 1 3 a weed to petitioner 5 original postconviction petition, the rate contends th at defendant has waived the issue. The Act provides as follows: ?Any claim of substant' tal denial of constitutional rights not raised in the original or an amended petition is waived.? (Emphasrs added.) 725 ILCS 5/122-3 (West 1996). ThuS, in view of our decision to remand this case, which will afford petitioner the right to postconviction counsel and the Opportunity to ?le an amended petition, it cannot be said that this issue has been waived. In a supplemental brief, petitioner has raised the issue that his consecutive sentences must be modi?ed to run concorrently because, pursuant to the United States Supreme Court's holding in Apprendi v. New Jersey, US. 147 L. Ed 435, 120 S. Ct. 2348 (2000). This court recently extended Apprendr' to a case on collateral review, such as the one here. See Peopfe v. Beacham, (No. 1-99-0852, December 6, 2000). In Beacham, this court remanded the cause to afford the opportunity to the post-conviction hearingjudge to consider the impact of Apprendi on the defendant's sentence. Beacham, No. 1-99?0852, slip op. at 25. Since we have remanded the case for the reasons already stated, postconviction counsel will have the opportunity to raise the issue in an amended postconviction petition. In accordance with the foregoing, we reverse the trial court's summary dismissal of petitioner?s postconviction petition and remand the cause for further proceedings consistent with this order. Reversed and remanded. GALLAGHER, 1., with CAMPBELL, 9.1., and J, concurring Scanned by CamScanner