People v. Foster, 3-21-0379

CourtUnited States Appellate Court of Illinois
Writing for the CourtPETERSON JUSTICE.
Citation2022 IL App (3d) 210379 U
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISIAH FOSTER III, Defendant-Appellant.
Docket Number3-21-0379
Decision Date22 November 2022

2022 IL App (3d) 210379-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.

ISIAH FOSTER III, Defendant-Appellant.

No. 3-21-0379

Court of Appeals of Illinois, Third District

November 22, 2022


This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 11-CF-619 Honorable Katherine S. Gorman, Judge, Presiding.

JUSTICE PETERSON delivered the judgment of the court. Justices Daugherity and Hauptman concurred in the judgment.

ORDER

PETERSON JUSTICE.

¶ 1 Held: Defendant's second-stage postconviction petition made a substantial showing of a constitutional violation.

¶ 2 Defendant, Isiah Foster III, appeals the denial of his postconviction petition at the second stage of proceedings. Defendant contends that his petition made a substantial showing that he received ineffective assistance, where counsel failed to investigate an alibi witness that defendant provided him with the contact information. We reverse and remand for further proceedings.

1

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged by indictment with aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)), aggravated discharge of a firearm (id. § 24-1.2(a) (2)), and unlawful possession of a weapon by a felon (id. § 24-1.1 (a)). The charges relate to the 2011 shooting of Robert Norris. After a bench trial, the court found defendant guilty of all charges. On appeal, this court affirmed defendant's sentence. People v. Foster, 2015 IL App (3d) 130500-U, ¶ 12.

¶ 5 Defendant filed a postconviction petition that alleged he received ineffective assistance because his counsel failed to adequately investigate potential alibi witness, Christy Burns. Defendant's petition alleged that Burns would have testified that defendant was at her house on the day of the shooting. Defendant told counsel that Burns was willing to speak to him and provided counsel with her contact information. The petition further alleged that counsel told defendant that he attempted to contact Burns and was unable to locate her.

¶ 6 Defendant's petition advanced to the second stage. Postconviction counsel amended the petition to include an affidavit signed by Burns confirming she could have provided alibi testimony. If Burns had been called to testify, her testimony would have included that she invited defendant to her home on the morning of June 21, 2011, and that he arrived at approximately 7 a.m. Defendant spent the rest of the morning at Burns's house and did not leave until they heard that a shooting had occurred earlier that day and defendant was wanted in connection with it. Burns further stated that defense counsel never contacted her.

¶ 7 The State filed a motion to dismiss arguing that defendant failed to establish the deficient performance prong to prove ineffective assistance of counsel. The court granted the State's motion. Defendant appeals.

2

¶ 8 II. ANALYSIS

¶ 9 Defendant argues that the circuit court erred in dismissing his postconviction petition at the second stage of proceedings because he made a substantial showing of ineffective assistance of counsel. Specifically,...

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