Supreme Court Summaries

Opinions filed November 29, 2012




People v. Tate, 2012 IL 112214

Appellate citation: No. 1-09-2379 (unpublished order under Supreme Court Rule 23).


      JUSTICE FREEMAN delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.


      Douglas Tate was convicted in a Cook County bench trial for a 2001 fatal shooting in Chicago. Four eyewitnesses who testified for the State identified him, and he received a 50-year term. The appellate court affirmed.

      In the matter at issue here, Tate retained private counsel and filed a postconviction petition, claiming alibi and attaching two affidavits of alibi witnesses. Also attached were the affidavits of two occurrence witnesses, one of whom said that he did not see Tate anywhere near the shooting, and another who said he was five feet from the victim and was sure that Tate was not the shooter. Ineffective assistance of trial counsel in failing to call these four witnesses was alleged. Although this issue had not been raised by posttrial motion, the supreme court said that Tate could assert it by postconviction petition and that there was no forfeiture of the claim. Nevertheless, the circuit court summarily dismissed the petition, and the appellate court affirmed. Tate appealed.

      Under the Post-Conviction Hearing Act, a postconviction petition may be dismissed, initially, if it is “frivolous or patently without merit.” If this does not occur, the matter advances to a second stage, and the court determines if there is a substantial showing of a constitutional violation so as to call for a third stage, which is an evidentiary hearing. Most postconviction petitions are filed pro se, without legal advice. Here, because Tate had private counsel in filing his postconviction petition, the State argued that, at the first stage, he should be held to the higher standard of making a substantial showing of a constitutional violation. However, the supreme court, in this decision, rejected this approach as contrary to the Act. Tate’s petition could survive the first stage if it was arguable that counsel’s performance fell below an objective standard of reasonableness and if it was arguable that he was prejudiced. Those tests were met here. Tate’s petition should have been allowed to advance to the second stage, and the cause was remanded to the circuit court for that purpose. The appellate court was reversed.

      This decision does not speak to the issue of whether Tate can meet his burden of proof in the postconviction proceeding.