People v. Gallardo

1

2024 IL App (2d) 230289-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMANDO GALLARDO, Defendant-Appellant.

No. 2-23-0289

Court of Appeals of Illinois, Second District

November 25, 2024

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

Appeal from the Circuit Court of Kane County. No. 13-CF-245 Honorable John A. Barsanti, Judge, Presiding.

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Kennedy and Mullen concurred in the judgment.

ORDER

SCHOSTOK, JUSTICE

¶ 1 Held: The trial court's denial of the defendant's postconviction petition after a third-stage evidentiary hearing was not manifestly erroneous.

¶ 2 The defendant, Armando Gallardo, filed a postconviction petition pursuant to section 1221 of the Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2016)). After an evidentiary hearing, the trial court denied the petition. The defendant appeals from this order. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On February 7, 2013, the defendant was charged with two counts of attempted first-degree murder (720 ILCS 5/9-1(a)(1) West (2012)), one count of aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and various weapons violations arising from a gang-related drive-by shooting on September 6, 2011, in which the defendant was alleged to have personally discharged a gun.

¶ 5 On Friday, February 15, 2013, a hearing was held that was originally scheduled as a final pretrial hearing for another case involving the defendant, No. 11-CF-2049 (hereinafter "the 2011 case"). The trial for the 2011 case was set to start the following Tuesday, with the defendant being represented by Kane County assistant public defender Beth Peccarelli. The State informed the trial court that the defendant had been indicted in the present case a week earlier, and that the warrant was being served on the defendant that day. The present case and the 2011 case both involved shootings that occurred six days apart. While the charges in both cases were similar, they involved different victims. The State announced that it was ready for trial but stated that the trial, scheduled for the following Tuesday should be on the charges in the present case rather than those in the 2011 case. Peccarelli stated that she was not ready to proceed to trial on the present charges, as she had not yet been appointed to represent the defendant in this case. The trial court appointed Peccarelli to represent the defendant and stated that it would be unfair to expect her to be prepared for trial in this case on such short notice. The case was thus continued.

¶ 6 On May 28, 2013, at a hearing, the State indicated that the defendant was going to enter "cold" pleas on both cases. In each case, he would enter a "cold" plea to aggravated discharge of a firearm, a class 1 felony. The remaining charges would be nolle prossed. After the defendant realized there was confusion as to whether his sentences would have to be served at 50% or 85%, he requested a continuance to reconsider his plea. The defendant also asked for a "bench trial setting because the State has some witness issues." The State acknowledged that it was in contact with most of its witnesses but that it was having trouble contacting the victim, Gabriel Berrios, who was under subpoena. The trial court entered a rule to show cause against the victim and continued the case. At a hearing two days later, the defendant declined to enter a "cold" plea and requested a bench trial.

¶ 7 The bench trial commenced in June 2013. The facts of the case were set forth in detail in our order issued in the defendant's direct appeal. See People v Gallardo, 2016 IL App (2d) 140506-U. Therefore, we provide only those facts necessary to this disposition. In relevant part, Adam Argo testified that he was driving the car when the defendant fired three or four shots at the victim. Argo acknowledged that he was charged with similar offenses but reached a plea agreement with the State in exchange for his testimony against the defendant. Four days into the trial, after the State had rested, the trial court realized that the defendant had never been arraigned in the present case and arraigned the defendant for the first time. The trial court explained all of the charges, the potential minimum and maximum sentences for each charge, applicable firearm enhancements, and requirements of mandatory supervised release. The defense then proceeded with its case. The defendant's mother testified that the defendant was at home at the time of the alleged offenses. During the State's rebuttal case, the trial court admitted transcripts of telephone calls to and from the defendant while he was in the Kane County jail. Those recordings showed that the defendant had solicited a false alibi from his mother. The defendant also told his mother that the victim was not cooperating and that, if he had an alibi, that he could "beat" his case.

¶ 8 The trial court convicted the defendant of attempted first-degree murder, aggravated discharge of a weapon, and two weapons violations. Among other evidence, the trial court noted that the defendant's attempt to solicit a false alibi supported the finding of guilt. The defendant filed a motion for a new trial, arguing that the trial court's failure to arraign him prior to trial impaired his ability to make an informed decision regarding trial or plea. The trial court denied the motion and sentenced the defendant to 30 years' imprisonment for attempted murder; the other convictions merged into the attempted murder conviction. The defendant appealed, and we affirmed his convictions. Id.

¶ 9 On June 26, 2017, the defendant filed a pro se postconviction petition in which he acknowledged declining an open plea in May 2013, but argued that he was never made aware of the nature of the charges against him or the minimum and maximum sentence for those charges, such that he could "knowledgeably enter such a plea." The trial court summarily dismissed the petition. The defendant appealed from that order. This court reversed and remanded for second-stage proceedings. People v. Gallardo, 2019 IL App (2d) 170822-U. We held that the defendant stated the gist of a constitutional claim that his trial counsel's performance was deficient because he was allegedly never "made aware of" the sentencing ranges he faced on all of the charges prior to rejecting the plea offer. Id. ¶ 20.

¶ 10 On March 22, 2022, the defendant filed an amended postconviction petition. The defendant noted that he was charged with attempted first-degree murder, which had a sentencing range of 6 to 30 years, a mandatory 20-year firearm enhancement, and was subject to truth-insentencing. Thus, the defendant's minimum sentence was 26 years. The defendant was offered a plea agreement that, if he pleaded guilty to aggravated discharge of a firearm, all remaining charges would be dropped. There was no agreement as to the sentence. The sentencing range for aggravated discharge of a firearm was between 4 and 15 years, with the possibility of probation. The defendant argued that trial counsel was ineffective in failing to inform him of his minimum and maximum sentences, and misstated the consequences of rejecting the State's plea offer by telling him that there was a substantial possibility that he would receive close to a four-year sentence if convicted.

¶ 11 In an affidavit, the defendant asserted that, at the hearing on May 28, 2013, he was planning to accept the plea offer and had already signed the paperwork. However, there was disagreement between the State and defense counsel as to whether the sentence for aggravated discharge of a firearm would have to be served at 50% or 85%. Two days later, when he learned that the sentence would have to be served at 85%, he told defense counsel he was upset. She told him that she would proceed with trial and see what happened. The defendant further asserted that defense counsel never informed him of the minimum and maximum sentences for his charges, and did not explain the consequences of accepting or rejecting the plea offer. The defendant stated that he would have accepted the plea offer if he had been adequately advised as to the sentencing parameters for his charged offenses.

¶ 12 Thereafter, the State filed a motion to dismiss the defendant's petition. The trial court denied the motion and the matter proceeded to a third-stage evidentiary hearing.

¶ 13 On April 21, 2023, the defendant testified that, prior to the commencement of his bench trial, neither the trial court nor defense counsel informed him of the potential penalties of the charges against him. Prior to trial, defense counsel told him that the State was offering a "cold" plea to aggravated discharge of a firearm, to be served at 50%, in exchange for dropping all the other charges. During discussions about the plea, defense counsel never explained the possible sentences for all the charges he faced. When it came time to enter the plea at a hearing, defense counsel learned that a "cold" plea to aggravated discharge of a firearm would have to be served at 85%. Defense counsel told the defendant that she would request a continuance to speak with the State about the discrepancy over whether the sentence would have to be served at 50% or 85%. At defense counsel's request, the trial court continued the case for two days. Defense counsel never came to speak with him during that time. When he returned to court two days later, defense counsel said he would have to serve the sentence on the "cold" plea at 85%. He told her that he did not want to take the 85% deal. The defendant further stated that he was not aware of the...