People v. Guerrero

224 N.E.3d 196

2022 IL App (1st) 210400

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Daniel GUERRERO, Defendant-Appellant.

No. 1-21-0400

Appellate Court of Illinois, First District, Third Division.

Filed July 27, 2022

Appeal from the Circuit Court of Cook County. No. 12 CR 18726 (02), The Honorable William Raines, Judge Presiding.

James E. Chadd, Douglas R. Hoff, Chan Woo Yoon, and Hannah Lazar Pieterse, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Tasha-Marie Kelly, and Hareena Meghani-Wakely, Assistant State’s Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 In the instant appeal, defendant Daniel Guerrero challenges the trial court’s decision denying his postconviction petition at the first stage. This is the second time this defendant has appealed to this court. In his prior appeal, which was a direct appeal, defendant argued (1) that certain remarks made by the prosecutor during the State’s rebuttal closing argument constituted prosecutorial misconduct and (2) that his sentence is excessive when compared to the lesser sentence of a codefendant. We affirmed his conviction and sentence. See People v. Guerrero, 2020 IL App (1st) 172156, 444 Ill.Dec. 692, 164 N.E.3d 1267.

¶ 2 In this appeal, defendant argues that his postconviction petition established the gist of his claim that the imposition of a 45-year sentence for his crime of murder in the first degree violates the Illinois Constitution’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11) as applied to him. The trial court dismissed defendant’s postconviction petition. For the following reasons, we affirm the trial court’s decision.

¶ 3 BACKGROUND

¶ 4 The State’s evidence at trial established that, on May 29, 2010, at midnight, a group of men, who belonged to the same gang, approached two men on a street because one of the two men was wearing a red shirt, which was the color of a rival gang. One of the two men, Mario Gallegos, was able to escape, and he testified at trial as an eyewitness. The other man, Alan Oliva, who was wearing the red shirt, was beaten and stabbed to death. Gallegos identified defendant as the first person to strike the victim. Gallegos testified that defendant swung a baseball bat at the victim, thereby knocking the victim to the ground, whereupon the other men beat and stabbed the victim until he stopped moving. The victim later died from his wounds. Defendant was 22 years and two months old at the time of the killing.

¶ 5 On April 6, 2017, defendant was convicted of gunrunning. See 720 ILCS 5/24-3A(a) (West 2014) ("A person commits gunrunning when he or she transfers 3 or more firearms in violation of any of the paragraphs of Section 23-4 of this Code."). The underlying events giving rise to this conviction occurred in April 2012, almost two years after the killing of Oliva. Defendant was sentenced to seven years and seven months with the Illinois Department of Corrections (IDOC) for this conviction.

¶ 6 Defendant’s murder trial was held about two months after defendant’s conviction for gunrunning. On June 8, 2017, a jury found defendant guilty of first degree murder. On July 11, 2017, the trial court, after considering the aggravating and mitigating factors, sentenced defendant to 45 years with the IDOC. The trial court considered the defendant’s criminal history, his social history, his education, his background, his family history, and his physical health. More specifically, it considered defendant’s participation in gang involvement in aggravation, as well as defendant’s role as "leader of the pack," as he was armed with the bat that struck the first blow, allowing the others to continue the attack. The court also considered in aggravation the fact that defendant continued being involved in gang activity even after the murder, as evidenced by the gunrunning conviction just a couple months prior to the murder trial. In sum, "the defendant’s primary roll [sic] in this incident, this senseless killing of certainly an innocent individual Mr. Oliva, who had a bright future in front of him require[d] [in] the Court’s discretion a sentence greater than the minimum, and greater commensurate with the other individuals based on their level of participation."

¶ 7 On August 10, 2017, defendant filed a notice of appeal.¹ On June 4, 2020, this court issued its decision on defendant’s direct appeal. We held that the State’s remarks during the trial did not constitute error and certainly did not rise to the level of clear and obvious error as required for reversal under the plain error doctrine. We also held that defendant’s sentence was not excessive, as defendant was not similarly situated as his codefendants because he was the leader of the pack and, after the murder, was convicted of another crime.

¶ 8 On December 30, 2020, defendant filed his pro se postconviction petition alleging that (1) his 45-year sentence was unconstitutional under the eighth amendment (U.S. Const., amend. VIII), (2) his trial counsel was ineffective in failing to object to the State’s use of certain testimony, and (3) the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).² On March 2, 2021, the trial court issued a written order summarily dismissing the petition as frivolous and without merit. Subsequently, defendant filed a notice of appeal that substantially complied with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017), which sets forth notice requirements for incarcerated individuals filing documents with a court.³

¶ 9 ANALYSIS

¶ 10 On appeal, defendant argues that his 45-year sentence for his murder conviction violates the Illinois Constitution’s proportionate penalties clause as applied to him.

¶ 11 I. Standard of Review

[1, 2] ¶ 12 Defendant’s petition was dismissed at the first stage of postconviction proceedings. "‘At the first stage of postconviction [proceedings] there are no hearings, no arguments, and no introduction of evidence.’" People v. Savage, 2020 IL App (1st) 173135, ¶ 48, 448 Ill.Dec. 897, 178 N.E.3d 221 (quoting People v. Johnson, 2018 IL 122227, ¶ 21, 429 Ill.Dec. 24, 123 N.E.3d 1083). "‘Instead, there is only a pleading, the postconviction petition, that the circuit court must independently consider to determine whether it is frivolous or patently without merit.’" Savage, 2020 IL App (1st) 173135, ¶ 48, 448 Ill.Dec. 897, 178 N.E.3d 221 (quoting Johnson, 2018 IL 122227, ¶ 21, 429 Ill.Dec. 24, 123 N.E.3d 1083).

[3–5] ¶ 13 "Where the issue on review is limited to the sufficiency of the allegations in a postconviction petition, there is little justification for affording deference to the circuit court’s decision." People v. Robinson, 2020 IL 123849, ¶ 39, 450 Ill. Dec. 37, 181 N.E.3d 37. "Given that no factual findings or credibility determinations are required at the pleading stage of postconviction proceedings, a reviewing court is as capable as the circuit court of determining whether a petition and supporting documents contain adequate alle- gations." Robinson, 2020 IL 123849, ¶ 39, 450 Ill.Dec. 37, 181 N.E.3d 37. Thus, a reviewing court’s standard of review is de novo. Savage, 2020 IL App (1st) 173135, ¶ 49, 448 Ill.Dec. 897, 178 N.E.3d 221. De novo consideration means that we perform the same analysis that a trial judge would perform. People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 107, 448 Ill.Dec. 569, 177 N.E.3d 327.

¶ 14 II. Post-Conviction Hearing Act

¶ 15 Defendant seeks relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)).

[6, 7] ¶ 16 The Act provides a statutory remedy for criminal defendants who claim their constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711, ¶ 21, 360 Ill.Dec. 784, 969 N.E.2d 829. It is not a substitute for an appeal but, rather, a collateral proceeding that attacks a final judgment. Edwards, 2012 IL 111711, ¶ 21, 360 Ill.Dec. 784, 969 N.E.2d 829.

[8] ¶ 17 The Act provides for three stages of review by the trial court. People v. Domagala, 2013 IL 113688, ¶ 32, 370 Ill.Dec. 1, 987 N.E.2d 767. At the first stage, the trial court may summarily dismiss a petition only if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014); Domagala, 2013 IL 113688, ¶ 32, 370 Ill.Dec. 1, 987 N.E.2d 767.

[9, 10] ¶ 18 At the second stage, counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4 (West 2014); Domagala, 2013 IL 113688, ¶ 33, 370 Ill.Dec. 1, 987 N.E.2d 767. After counsel determines whether to amend the petition, the State may file either a motion to dismiss or an answer to the petition. 725 ILCS 5/122-5 (West 2014); Domagala, 2013 IL 113688, ¶ 33, 370 Ill.Dec. 1, 987 N.E.2d 767. At the second stage, the trial court must determine "whether the petition and any accompanying documentation make a substantial showing of a constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001).

[11, 12] ¶ 19 If the defendant makes a "substantial showing" at the second stage, then the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL 113688, ¶ 34, 370 Ill.Dec. 1, 987 N.E.2d 767. At a third-stage evidentiary hearing, the trial court acts as fact finder, determining witness credibility and the weight to be given particular testimony and evidence and resolving any evidentiary conflicts. Domagala, 2013 IL 113688, ¶ 34, 370 Ill.Dec. 1, 987 N.E.2d 767.

¶ 20 In the case at bar, defendant appeals the trial court’s order summarily dismissing his postconviction petition as frivolous and without merit at the first stage. He argues that his postconviction petition established the gist of a claim that his 45-year sentence, of which he must serve 100% under the truth-in-sentencing provisions of the Unified Code of Corrections (730 ILCS 5/3-6-3 (West 2014))...