Thursday, September 21, 2017

First Degree Perjury, Attempt to Influence a Public Servant and Tracing IP Addresses

This post examines a recent opinion from the Colorado Court of Appeals – Division III: People v. Garrison, 2017 WL 3431820 (2017). The court begins the opinion by explaining that the
common knowledge and experience of an ordinary person have become one marker of the boundary separating lay from expert testimony. This case involves lay witness testimony about e-mail. So, one might wonder whether this ubiquitous person would be aware that

·       the record of each e-mail transmission includes an Internet Protocol (IP) address from which the transmission initiated
·       the IP address can be linked to an Internet service provider (ISP); and
·       in turn, the ISP can often trace the IP address to the physical address of a particular ISP customer?
People v. Garrison, supra.
The court goes on to explain that
[d]espite the dramatic increase in use of e-mail, we join the few jurisdictions to have addressed this question and conclude that such a person would not be aware of these facts, at least in the combination used by the prosecution to explain how the investigation began with charges against the victim, but led to evidence of criminal acts by defendant, Lawson P. Garrison. And because this information was the glue that held much of the prosecution's case against Garrison together, he is entitled to a new trial on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant.
People v. Garrison, supra.
The opinion then explains that
[t]urning to Garrison's second issue, the trial court did not abuse its considerable discretion in denying him a continuance of the trial. And because the charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses, his conviction by a jury on those charges stands affirmed.
People v. Garrison, supra.
The Court of Appeals then outlined the “facts and procedural background” in the case:
According to the prosecution's evidence bearing on the two issues raised on appeal,1Garrison had an affair with the victim's wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim's name. Using that account, they began sending themselves derogatory and threatening e-mails.

Based on these e-mails, Garrison and his wife made several police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the e-mails at the hearing. The police filed charges against the victim.

Seeking evidence to support these charges, the police obtained a subpoena concerning the Gmail account. In response, Google identified two IP addresses. The police associated these addresses with two ISPs. After being subpoenaed, the ISPs identified one IP address as the home of Garrison's wife, where Garrison lived at the time, and the other as her employer. When interviewed by police, both Garrison and his wife denied having set up the account.

Even so, all charges against the victim were dropped, the investigation focused on the Garrisons, and they were charged. Garrison's wife pleaded guilty to several charges. Garrison elected to go to trial but he did not testify. His theory of defense was that the victim had hacked into his home computer and the server at his wife's workplace, changing the IP addresses used to access the Gmail account. This process is called `spoofing.
People v. Garrison, supra.
The Court of Appeals then took up Garrison’s argument that the trial court judge abused his or her discretion by “refusing to grant Garrison a continuance.”  People v. Garrison, supra. The court began its analysis of Garrison’s argument concerning this issue by explaining that
[i]f the trial court erred in denying Garrison a continuance and he could show prejudice, he would be entitled to a new trial on all charges. So, we begin with this contention.

On the first day of trial—March 3, 2015—defense counsel renewed her motion for a continuance that she had made at the trial readiness conference four weeks earlier. She conceded that Garrison `d[id] not want a continuance,’ but argued that she was not prepared for trial because the case required `specialized computer knowledge,’ she did not `get approval for [an] expert until January 30th,’ and she had `only met with [the expert] one time.’
People v. Garrison, supra.
The opinion goes on to explain that the
            prosecutor opposed the continuance for the following reasons:

This is one more delay causing one more frustration and anxiety from the victims, from the police officers that I have spent the last, you know, two weeks scheduling and going though all the reports. Again over a thousand pages of reports and discovery. This is the second time, well, that I prepped for this trial in its entirety.
As to Garrison's expert witness, the prosecutor argued that he had `in my receipt what the expert is going to testify to so apparently he's prepared to testify.’

The trial court denied the motion. The court explained that `[t]he procedural history of this case includes a lot of motions to continue’ and the `risk of prejudice that has been argued by [defense counsel] can be managed by the court.’ Specifically, the court said that Garrison's expert would be allowed to testify even though he had not been timely endorsed.
People v. Garrison, supra.
The Court of Appeals then began its analysis of the issues in the case by explaining that
[a] trial court's denial of a motion for a continuance is reviewed for an abuse of discretionPeople v. Faussett, 2016 COA 94M, ¶ 12, ––– P.3d ––––.  `A trial court abuses its discretion in denying a motion to continue if, under the totality of the circumstances, its ruling is manifestly arbitrary, unreasonable, or unfair.’ Id. (citation omitted).

 `No mechanical test exists for determining whether the denial of a request for a continuance constitutes an abuse of discretion.’ Id. (citation omitted). Rather, `the answer must be found within the circumstances of each case, particularly in the reasons presented to the trial judge at the time of the request.’ People v. Roybal, 55 P.3d 144, 150 (Colo. App. 2001).
People v. Garrison, supra.
The Court of Appeals then took up Garrison’s argument as to how the trial court judge dealt with his request for a continuance:
Garrison first argues that the trial court should have granted a continuance because his new trial counsel “inherited the case just two months prior and was running an entirely different defense than the prior public defender.” But Garrison fails to explain why the `different defense’ could not have been developed earlier, such as if it had arisen from newly discovered evidence.

In any event, the record shows that prior defense counsel was well aware of the technical aspects of this case. When that counsel first requested and received a continuance on February 3, 2014, he argued that there was `[p]retty complex internet legal service that needs be done before I can even subpoena the materials that I'm going to need to prepare for trial.’ Later, on May 5, 2014, defense counsel requested and received another continuance because he had `received 10 disks . . . which includes Google search warrant executions, videos, computer forensic information. And that's all information that is beyond the scope of my expertise.’

At that time, defense counsel also advised the court, `I have a request in for approval for an expert to help me review all of the computer forensics in this case.’ True, successor counsel later told the court that the expert had not been approved until January. But this delay of over seven months must be attributed to the defense.
People v. Garrison, supra.
The opinion then explains that
[a]s well, the record supports the trial court's finding that since the original trial date of April 1, 2014, numerous continuances had already been granted—three of which were at Garrison's request. See People v. Casias, 2012 COA 117, ¶ 21 n.3, 312 P.3d 208 (There was no abuse of discretion where `the case had been pending for over two and a half years,’ and `the court had already granted defendant two continuances.’).

Still, Garrison argues that a continuance should have been granted because this was his new counsel's first request. But Garrison cites no authority, nor have we found any in Colorado, that prior continuances are disregarded once new counsel has been appointed. To the contrary, in People in Interest of J.T., 13 P.3d 321, 322 (Colo. App. 2000), the division upheld denial of a continuance, even though new counsel had been appointed `three weeks before,’ because `the case had been pending for over six months and had been previously continued twice at [defendant's] request.’

Undaunted, Garrison argues that a continuance was needed because his new counsel was not prepared for trial. And during the trial, his counsel repeatedly sought a continuance on this basis. But the record belies this argument. It shows that Garrison's counsel `gave an opening statement; examined and cross-examined witnesses’ extensively, including the police officers who testified about IP addresses, as discussed below; `preserved objections to evidence; gave significant input on jury instructions; and presented a lengthy closing argument.’ People v. Alley, 232 P.3d 272, 274 (Colo. App. 2010) (upholding denial of a continuance).

            For these reasons, we discern no abuse of the court's discretion.
People v. Garrison, supra.
The court goes on, in what U.S. law refers to as “dicta,” to explain that
[f]urther, even if the trial court abused its discretion, to obtain a reversal, Garrison must also `demonstrate actual prejudice arising from denial of the continuance.’ People v. Denton, 757 P.2d 637, 638 (Colo. App. 1988). But the prejudice argued by Garrison involves only charges related to the IP testimony:

`After the motion to continue was initially denied, the only option left was to present a significantly hampered defense with a blind expert and without the ability to understand the technological intricacies of computer hacking, spoofing and how to find evidence of hacking or spoofing.’

He does not even suggest that the continuance denial caused prejudice related to his convictions for possessing a defaced firearm and felony menacing. Thus, because we have given Garrison a new trial on his convictions related to the IP testimony, as discussed in the next section, no prejudice has occurred.

In sum, we discern no basis for reversal in denying Garrison's motion for a continuance.
People v. Garrison, supra.

The Court of Appeals then took up Garrison’s next argument, which was that the trial court judge abused his “discretion by allowing police officers, testifying as lay witnesses, to testify about tracing IP addresses.”  People v. Garrison, supra. The court began its analysis of this argument by explaining that
[b]efore trial, defense counsel noted her `concern about the . . . type of evidence that the [prosecution] is going to attempt to introduce via lay witnesses, being police officers.’ She asked that `police officers not be able to give expert testimony’ on computer evidence. The prosecutor responded that the police officers' testimony did not require any specialized knowledge because it involved `get[ting] a warrant and compar[ing] two sets of data ... which they do all the time.’ The trial court declined to rule, explaining that it would `listen to the evidence’ and `handle it as it happens.’

Mark Garcia, one of the investigating detectives, was the first officer to take the witness stand. Testifying as a lay witness, he explained that during the investigation, warrants were issued for `emails, facebook messages, and stuff like that.’ He added,

`You can get the actual emails, text messages if they are still there and have not been destroyed, as well as you can get the internet protocol address on where the messages are coming from or who set up the account. When you go online, you set up an account, you fill out all the documents.’

The trial court overruled defense counsel's objection that Garcia was giving expert testimony.
People v. Garrison, supra.
The opinion goes on to explain that
[n]ext, Garcia testified:

`We sent Google a production of records for the internet protocol address. We provided Go[o]gle with the email address of [the Gmail account] and email addresses that basically were being used. Go[o]gle then provided the internet protocol addresses. They provided two. And what we get is just numbers. And with the numbers that [sic] we did the research....’

Again, the trial court overruled defense counsel's objection.
People v. Garrison, supra.
The opinion then goes on to explain that
Then, Garcia took the investigation to its culmination:

Q. And you have said there was two numbers. So they were associated with that [Gmail] account?
A. Yes.
Q. And in your investigation, did you determine where those two IP addresses belong?
A. Yes.
Q. Who belonged to those IP addresses?
A. Yes.
Q. What did you determine in your investigation?
A. One belonged to Century Link and another belonged to Comcast.
Q. And did you review the investigation as it pertains to the IP addresses for those two?
A. Along with Officer Calloway.
Q. And what did that investigation reveal? Were you able to determine based on your investigation with Comcast and Century Link who owned those IP addresses?
Defense counsel: Objection. I renew my objection.
The Court: Overruled. There's been an adequate foundation in the context of the investigation for this officer to testify. It doesn't step over into expert testimony in my view. Overruled. You may answer that question.
A. Yes, we completed a production of records search warrant and sent them to the companies requested on who owns the IP addresses.
Q. And what was the result of that investigation?
A. One address returned back to [Garrison's wife's home].... And the other one returned back to her employer....
People v. Garrison, supra.
The opinion then explains that Officer Charles Calloway
testified next, also as a lay witness. By now, the trial court had given defense counsel a standing objection. According to Calloway:

`Q. You got an IP address, a couple of IP addresses that you said were associated with the [Gmail account]. You said that you sent those to your computer guys, investigation folks?
A. Yes.
Q. And then what is the next step in the process?
A. ... those IP addresses came to Century Link and Comcast which I sent search warrants to both Century Link and Comcast.
Q. What were the results of those search warrants?
A. One came back to the address [of Garrison's wife and the other to her employer]....’

At the end of Calloway's testimony, the trial court asked him a juror's question: `Regarding the warrant to Google, what specific information was requested? Was there just a date range only requested or specific account names only?’ Calloway answered:

`The warrant to Google what I was requesting is all pretty much everything I can get from Google: The names, log in times, log out times. Anything dealing with that account. And what they produced back is to gave [sic] me a disk which had a lot of information on there. And one of the sheets on the paper were IP addresses. And those had—there were two distinct IP addresses.... [B]ut those two IP addresses it was determined came from singularly from Century Link and Comcast.’

`And the thing with Google when people create a[n] account with Google like any [of] us can go on Google and create an account, that's like a public account type. So what they give you is an IP addresses back. And then from there you see who is the provider. Century Link and Comcast. And so another warrant had to be done that way to find out where those locations are coming from. Because the IP address is as it says like an address of that computer specific on there. So that's the information I got back.’
People v. Garrison, supra.
At this point, the opinion explains that the “`sheets of paper’ to which Calloway referred included the following undifferentiated character string’”, which I am not including in this post due to formatting issues. People v. Garrison, supra.
The Court of Appeals then began its analysis of the fact, law and arguments in this appeal, explaining, initially, that
[a]s always, a trial court's evidentiary rulings—including those involving expert testimony—are reviewed for an abuse of discretion. People v. Howard-Walker, 2017 COA 81M, ¶ 44, ––– P.3d ––––. The trial court abuses its discretion if, among other things, its decision `is based on a misunderstanding or misapplication of the law.’ People v. Thompson, 2017 COA 56, ¶ 91, ––– P.3d ––––.

When an abuse of discretion occurs, `[w]e review nonconstitutional trial errors that were preserved by objection for harmless error.’ Howard-Walker, ¶ 44 (citation omitted). Evidentiary rulings involving experts are reviewed as such errors. Under this standard, reversal results only if the error `substantially influenced the verdict or affected the fairness of the trial proceedings.’ Id. (citation omitted).
People v. Garrison, supra.
The opinion then explains that Colorado Rules of Evidence Rule 701 “governs admission of lay testimony” and provides as follows:
[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
People v. Garrison, supra.
The court then explained that after Garrison’s trial, the Colorado Supreme Court “`clarified the standards that distinguishes lay testimony from expert testimony.’” People v. Garrison, supra. It explained that the court should
`[t]ake the standard first. To determine `whether testimony is lay testimony under Colorado Rule of Evidence 701 or expert testimony under Colorado Rule of Evidence 702, the trial court must look to the basis for the opinion.’ Venalonzo v. People, 388 P.3d 868 (Colorado Supreme Court).

Then consider its reasoning. To distinguish between lay and expert testimony, `the proper inquiry is not whether a witness draws on her personal experiences to inform her testimony; all witnesses rely on their personal experience when testifying.’ Id.at ¶ 22. Rather, `the nature of the experiences that could form the opinion's basis ... determines whether the testimony is lay or expert opinion.’ So, expert testimony `is that which goes beyond the realm of common experience and requires experience, skills, or knowledge that the ordinary person would not have.’ Id.

The supreme court recognized that this `distinction can be a difficult one.’ Id. at ¶ 24. To be sure, `[t]his is particularly the case when the witness is a police officer.’ Howard-Walker, ¶ 51.
People v. Garrison, supra.
The Court of Appeals went on to analyze how it should decide what, if anything, the usual lay person can be expected to know about IP addresses and email transmission. People v. Garrison, supra. It explained that two of the cases the Attorney General cited in the prosecution’s brief
persuade us that the concept of an e-mail transmission including an IP address, which can be linked to an ISP, and in turn traced to the physical location of a particular ISP customer, is not within the knowledge or experience of ordinary people. Thus, because some of the police testimony on direct examination was based on particular experience and specialized knowledge within the scope of [Colorado Rule of Evidence] Rule 702, we conclude that the trial court abused its discretion in admitting this portion of the testimony as lay testimony.9 See Colorado Rule of Evidence] Rule 701(c).
People v. Garrison, supra.
The court therefore went on to hold that
we conclude that Garrison is entitled to a new trial on his convictions for first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant, all of which turned on the e-mails which the Garrisons presented as having come from the victim.
People v. Garrison, supra.

Friday, September 15, 2017

The Judge, the Email and “Violating a Criminal Protection Order”

This post examines an opinion issued by the Presiding Disciplinary Judge of the Supreme Court of Colorado: People v. Lesuer, 2017 WL 3588713. The opinion begins by explaining that the
Presiding Disciplinary Judge approved the parties' conditional admission of misconduct and suspended James D. Lesuer (attorney registration number 18379) for six months, effective August 11, 2017.
 In January 2014, a temporary protection order was entered against Lesuer, forbidding him to contact his ex-wife. In March 2014, Lesuer sent his ex-wife a text message. He was arrested, was convicted of a violation of the protection order, and received a deferred judgment. In November 2014, Lesuer contacted his ex-wife by email. He was again arrested and was convicted of violating a criminal protection order, a class-one misdemeanor. He was sentenced to sixty days in jail and two years of supervised probation. His deferred judgment was also revoked. Lesuer failed to report both of his convictions to disciplinary authorities.
People v. Lesuer, supra.
The opinion goes on to explain what happened next, i.e., that
[i]n October 2016, Lesuer violated a protection order by contacting his ex-wife via an online mail service. He was arrested, charged with violating a protective order, and released on bond. He then emailed his ex-wife again in November 2016. He was again arrested and charged. In April 2017, Lesuer pleaded guilty to violating a protective order in one case in exchange for the dismissal of the second case. He was sentenced in June 2017 to 120 days in jail. He was later placed on work release.

In this matter, Lesuer violated Colorado Rules of Professional Conduct 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects); Colorado Rules of Procedure Regarding Attorney Discipline 251.5(b (any criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer amounts to grounds for discipline); and Colorado Rules of Procedure Regarding Attorney Discipline 251.20(b) (a lawyer shall notify disciplinary authorities of any conviction within fourteen days of the conviction).
People v. Lesuer, supra.



Monday, September 11, 2017

“Doing Something on a Laptop,” Ineffective Assistance of Counsel and the Bench Trial

This post examines a recent decision from the Appellate Court of Illinois – Second District: People v. Perry, 2017 WL 3328365 (2017). The court began the opinion by explaining that
the trial court properly summarily dismissed defendant's postconviction petition, which alleged that appellate counsel had been ineffective for failing to argue that the State presented false testimony to the grand jury: defendant did not demonstrate that the testimony at issue was even arguably false and, in any event, defendant did not provide the entirety of the grand-jury testimony and thus we could not determine that the grand jury, even arguably, would not have indicted him absent that testimony.

 Defendant, Clarence E. Perry, appeals the trial court's order summarily dismissing his postconviction petition. He contends that he stated the gist of a meritorious claim that his appellate counsel was ineffective for not arguing that the State knowingly used false or misleading testimony to obtain the indictment. . . .
People v. Perry, supra
The Appellate Court went on to explain that
 [f]ollowing a bench trial, defendant was convicted of two counts of online theft by deception (720 [Illinois Compiled Statutes]5/16–40(b) (West 2012)). At that trial, Tannie Wilson testified that he owned Wilson Maintenance Company. In April and May 2012, he received two invoices from Grainger Corp. totaling more than $10,000 for merchandise that he did not order. Both invoices listed the purchaser as Cheryl Curry. The shipping address was a Smartstop storage facility, and the e-mail address was in the name of Edward Johnson. Wilson recognized neither name.
People v. Perry, supra.
The court then explained what happened next:
After receiving the first invoice, Wilson called Grainger. Kenneth Boyd, Grainger's loss-prevention specialist, discovered that the order was placed from Grainger's website. With his suspicions thus aroused, Boyd noticed that, when the second order came in, the shipping address was the same storage facility in Cicero as the first order. Both orders listed the name Cheryl Curry and the e-mail address edwardjohnson491@yahoo.com. The Internet protocol (IP) address on both forms was 99.179.146.37.

Boyd contacted Lincolnshire detective Adam Hyde. They placed a tracking device on one of the boxes shipped with the second order. Hyde later recovered that device from a box found in the basement of a Maywood address that Hyde knew was the residence of defendant's brother, Elgin Perry.

An employee of the storage facility provided Hyde with information about a rented storage locker, as well as Cheryl Curry's phone number. Curry said that she picked up the packages for a person she knew as `Snag.’ From a photographic array, she identified defendant as `Snag.’

Hyde also requested business records from AT&T regarding the IP address 99.179.146.37. Based on the information he received, he obtained a search warrant for 2007 12th Avenue in Maywood. He executed the warrant with Dean Kharasch, cybercrimes investigator for the Lake County State's Attorney's office. While there, Kharasch discovered a U–verse wireless router and an HP laptop. Kharasch learned that the home's Internet signal was an unsecured wireless signal, meaning that it was not password-protected. The IP address for the laptop was 99.179.146.37.
People v. Perry, supra.
The opinion then explains that
Kharasch testified that the wireless account had been accessed at one time or another by at least 20 different devices. The homeowner, Jennifer Jackson, recognized only two of those devices, the laptop and a wireless printer. The other devices that accessed the network had been used outside the residence. Another indicator that `outside subjects’ were using the wireless connection without the Jackson's authority came from Hyde, who told Kharasch that someone had told him that `a subject by the nickname of “Snag” would sit in a vehicle down the street using this witness's wireless connection.’

In the search-warrant application, Hyde wrote that, while at the residence, the next-door neighbors approached him and said that `Snag,’ whom they identified as defendant, frequented the area. Driving a cream-colored Buick, he would park halfway down the block from the house. According to the neighbors, `He sits in the car doing something, and then drives away.’

On cross-examination, defendant asked Hyde whether `[t]his phantom someone came up to you and told you that Snag sometimes parks on the block and sits in his car and does something that they don't know, is that correct?’ Hyde replied, `A gentleman does do that. And a group of gentlemen said that to us, yes.’
People v. Perry, supra.
Since this case presented a rather complicated set of facts, the court went on to outline what happened next:
A consensual search of Elgin Perry's house revealed that it had no Internet connection. However, an office was set up in the basement with a computer, some other equipment, and two cell phones. Hyde returned to Elgin Perry's house later to attempt to speak with defendant. As Hyde approached, defendant stood up and ran, jumped the fence behind the house, and ran into an apartment complex.

A former Grainger branch manager testified that defendant worked for the company for two or three months during the summer of 2005. During that time, he could have had access to customer account information.

Curry testified that she met defendant through a mutual friend. Defendant asked her if she would be willing to rent a storage locker. She and defendant drove to the facility and she went in and paid the rent. A week later, she returned to the facility to pick up packages that Grainger had sent there. She brought them back to Maywood, and defendant put them in a garage. Approximately a week later, she picked up more packages from the same location. defendant once again took the packages and put them in the garage.
People v. Perry, supra.
The opinion then takes up Perry’s prosecution, explaining that the
parties stipulated to defendant's conviction of computer fraud, which was introduced to show common design and knowledge. The earlier case involved defendant using customer account numbers to place fraudulent online orders with Grainger. The orders were then shipped to a storage locker, which was opened in another person's name.

The court found defendant guilty on both counts and sentenced him to concurrent 12–year prison terms. On direct appeal, defendant argued that the trial court erred in denying a motion to dismiss for improper venue. This court affirmed. People v. Perry, 2014 IL App (2d) 130397–U.

Defendant then filed a postconviction petition in which he contended, inter alia, that appellate counsel was ineffective for failing to argue that his due process rights were violated when the prosecutor presented false or misleading evidence to the grand jury. The court summarily dismissed the petition, and defendant timely appeals.
People v. Perry, supra.
The court then took up the arguments Perry made on appeal, beginning with his claim that
the court should not have dismissed his petition summarily, because it stated at least the gist of a claim that appellate counsel was ineffective. He points out that Hyde told the grand jury that neighbors said they saw defendant in the neighborhood of the 12th Avenue home doing something `on a laptop,’ while in his application for a search warrant and at trial, he related that the neighbors merely saw defendant `doing something.’ Defendant contends that, given the low threshold presented by the `gist’ standard at the first stage of postconviction review, it is at least arguable that, had the grand jurors not been told that defendant was seen with a laptop, they might not have indicted him for crimes of computer fraud, and, thus, appellate counsel was ineffective for not arguing this issue.
People v. Perry, supra.
The opinion goes on to explain that
[w]e begin our analysis of this issue with a brief review of the Post–Conviction Hearing Act (the Act) (725 Illinois Compiled Statutes 5/122–1 et seq. (West 2016)). A proceeding under the Act is not an appeal of a defendant's underlying conviction. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to postconviction relief, the defendant bears the burden of establishing a substantial deprivation of federal or state constitutional rights. People v. Evans, 186 Ill. 2d 83, 89 (1999).

A proceeding under the Act may consist of three stages. At the first stage, the court independently reviews the petition to decide if it is `frivolous or is patently without merit.’ 725 Illinois Compiled Statutes 5/122–2.1(a)(2) (West 2016). If the court reaches this conclusion, it must dismiss the petition in a written order. 725 Illinois Compiled Statutes 5/122–2.1(a)(2) (West 2016). A petition is considered `frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the ‘gist of a constitutional claim.’ People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). The `gist’ standard is `”a low threshold.”’ Id. (quoting Gaultney, 174 Ill. 2d at 418)). To set forth the `gist’ of a constitutional claim, a petition `need only present a limited amount of detail’ (Gaultney, 174 Ill. 2d at 418) and, thus, need not set forth the claim in its entirety. The petition need not include `legal arguments or [citations] to legal authority.’ Id.
People v. Perry, supra.
The court, though, also goes on to explain that
[h]owever, the recognition of a low threshold does not mean that a pro se petitioner is excused from providing any factual detail at all surrounding the alleged violation. Section 122–2 also provides that `[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.’ 725 Illinois Compiled Statutes 5/122–2 (West 2016). `The purpose of the ‘affidavits, records, or other evidence’ requirement is to establish that a petition's allegations are capable of objective or independent corroboration.’ People v. Hodges, 234 Ill. 2d 1, 10 (2009).
A claim of ineffective assistance of appellate counsel is cognizable in a postconviction petition. To successfully state such a claim, a defendant must show that the failure to raise an issue was objectively unreasonable and that the decision prejudiced the defendant. People v. Easley, 192 Ill. 2d 307, 328–29 (2000). Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues that, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong. Accordingly, unless the underlying issue is meritorious, the defendant has suffered no prejudice from counsel's failure to raise it on appeal. Id.
People v. Perry, supra.
The Court went on to explain that
Defendant argues that appellate counsel should have argued that the prosecution presented misleading evidence to the grand jury. We disagree. Initially, Hyde's statements are not fundamentally inconsistent. `Doing something on a laptop’ is `doing something,’ so the statements are consistent. Defendant's entire argument, then, is based on the fact that Hyde omitted the detail `on a laptop’ from the search-warrant application. Why he did so is unknown. Perhaps he simply forgot. However, his failure to include this detail in the warrant application does not even arguably show that the reference in his grand-jury testimony to a laptop was invented.

Defendant makes much of the fact that Hyde did not testify at trial that the neighbors told him that defendant was using a laptop. However, as the State points out, the prosecutor did not ask Hyde about the statement at all on direct examination (perhaps because it was hearsay). Hyde's only mention of it consisted of answering on cross-examination defendant's leading questions, which in turn were based on the warrant application.

Interestingly, Kharasch testified that Hyde told him that neighbors said that Snag `would sit in a vehicle down the street using this witness's wireless connection.’ From this version of the statement, it is at least inferable that the neighbors did in fact tell Hyde that they saw defendant with a computer. Alternatively, if what the neighbors told Hyde was that they saw defendant using Williams's wireless connection, it was reasonable for Hyde to infer that he was using a laptop to do so
People v. Perry, supra.
The court then explains that
[i]n any event, even assuming that Hyde's statement about the laptop was utterly false, the ultimate question is to what extent the statement influenced the grand jury's deliberations. `”The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.”’ People v. Oliver, 368 Ill. App. 3d 690, 694 (2006) (quoting People v. DiVincenzo, 183 Ill. 2d 239, 257 (1998)). However, to permit the dismissal of an indictment, the denial of due process must be unequivocally clear and the prejudice must be actual and substantial. Id. at 694–95.

In Oliver, on which defendant relies, we said that `it seems fairly self-evident’ that a due-process violation based on prosecutorial misconduct before a grand jury is actually prejudicial only if without it the grand jury would not have returned an indictment. Id. at 696–97. We cannot make that critical determination here, because we do not know what other evidence the grand jury heard. Defendant's petition includes only the page containing the allegedly offending statement. Without knowing the rest of the evidence that the grand jury heard, we cannot assess the impact of Hyde's statement on the jury's deliberations. The State argues that, if the evidence was similar to that presented at trial, the grand jury had ample other evidence on which to base an indictment. However, this requires us to speculate, and we need not do so.
People v. Perry, supra.
The court went on to explain that
[a]s noted, the Act requires that a petition shall have attached thereto `affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.’ 725 ILCS 5/122–2 (West 2016). Defendant argues that, to state the gist of a claim, it need only be `arguable’ that the alleged violation prejudiced him. However, the `arguable’ claim must still have factual support. A reasonably clever defendant can always construct a hypothetical argument, but the purpose of the evidentiary-support requirement is to demonstrate that the critical allegations underlying the argument can be independently corroborated. Hodges, 234 Ill. 2d at 10. Thus, the record does not demonstrate that any alleged violation prejudiced defendant, i.e., that the grand jury would not have indicted him but for the challenged statement.

The judgment of the circuit court of Lake County is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4–2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
People v. Perry, supra. 
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