People v. Lopez

2019 IL App (3d) 170798

123 N.E.3d 1136

429 Ill.Dec. 77

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

v.Jamie L. LOPEZ, Defendant-Appellant.

Appeal No. 3-17-0798

Appellate Court of Illinois, Third District.

Opinion filed January 4, 2019

Jeffrey J. Neppl and Theresa L. Sosalla, of Neppl & Zhang Law Firm LLC, of Rock Island, for appellant.

John L. McGehee, State’s Attorney, of Rock Island (Patrick Delfino, David J. Robinson, and Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 Defendant, Jamie L. Lopez, appeals the third-stage denial of his successive postconviction petition, arguing that the court erred in denying his postconviction petition where the sentencing court failed to consider defendant's youth when determining his sentence. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In 1995, defendant was convicted of first degree murder ( 720 ILCS 5/9-1(a)(2) (West 1994) ) and aggravated battery (id. § 12-4(b)(1) ). The evidence at trial established that Chad Van Klavern and Craig Jordan were attacked with a club. Our brief review of the facts is based on our order in People v. Lopez , No. 3-95-0421, 285 Ill.App.3d 1110, 237 Ill.Dec. 333, 709 N.E.2d 319 (1996) (unpublished order under Illinois Supreme Court Rule 23 ). Van Klavern died due to multiple craniocerebral injuries ; a police officer testified that he was able to observe Van Klavern's brain through a golf ball sized hole in his skull. Jordan survived but suffered a head wound requiring 11 staples. The Moline Police Department questioned Augustin Torres about the incident based on an anonymous tip. During questioning, Torres implicated himself, defendant, and Anthony Olvera. The police conducted an investigation and recovered the club and clothing allegedly worn by defendant during the attack. The blood on the clothing matched Van Klavern's blood. Olvera and Torres testified that it was defendant's idea to attack Van Klavern and Jordan. Torres testified that defendant alone attacked Van Klavern with the club. Defendant told them to deny that he was with them at the time of the incident if they were questioned by police.

¶ 4 A sentencing hearing was held on May 9, 1995. In mitigation, a pastor testified that defendant did some volunteer work. As a result, the pastor developed a positive opinion of defendant. Defendant's mother testified that she and defendant's father got divorced and remarried twice, which had a negative impact on defendant. She stated that defendant's sister was diagnosed with "manic depressive illness" and defendant was worried and concerned about her. Defendant's father testified that he had a good relationship with defendant, revolving particularly around baseball. He said defendant had a strong faith.

¶ 5 The presentence investigation report (PSI) established that defendant was 16 years old at the time of the PSI. He completed the tenth grade but dropped out "because there were too many kids that he was afraid to be around." He had earned three credits of the 21.5 required for graduation, had a grade point average of 0.167, and was ranked 567 out of 576. According to the school, defendant was dropped from school due to lack of attendance.

¶ 6 Defendant told the police that he was not with Torres and Olvera on the day of the incident but that the two of them "had been pressuring him to become involved in activities that he did not wish to become involved in." Defendant also said that the blood found on his clothing could have come from a fight he had earlier, since he got into a lot of fights. He further stated that he had loaned clothes to Torres and Olvera in the past. Defendant's prior juvenile record included disturbing the peace, two separate retail thefts, and a curfew violation. Defendant reported that he had good relationships with his parents but that his relationship with his mother changed when he became a teenager "and began being dragged down by his peers." Defendant's parents reported that two of his sisters were diagnosed as manic depressive. Defendant reported that he did not belong to a gang but was "involved with" Gangster Disciples, Vice Lords, and the Bishops. Defendant first drank alcohol at age 14 and last drank in September 1994. He said drinking caused problems with his girlfriend, friends, and at home. Defendant reported that he started smoking marijuana at age 15.

¶ 7 The PSI further included information regarding defendant's time at the Mary Davis Detention Home. At first, defendant had a number of "lock up offenses" because he had a difficult time adjusting. However, it was reported that he had improved. A counselor reported that the home had a grading process based on room neatness, behavior, peer interaction, and authority problems. Defendant had been receiving C's and D's. He then improved and started earning B's and then A's. Defendant started volunteering for chore assignments and was a good worker, showed good sportsmanship, and wrote and performed a positive rap for teens in a talent show. Defendant stopped retaliating when taunted by racial slurs. The PSI further included multiple victim impact letters from friends and family of Van Klavern.

¶ 8 Defendant made a brief statement in allocution in which he stated that he was sad about the tragedy and sorry for the families of the victims and his own family. The State asked the court to sentence defendant to between 45 and 55 years, which was less than the maximum, based on defendant's potential for rehabilitation.

¶ 9 The court stated that it had considered the PSI and the evidence presented. The court then stated:

"But factors in aggravation and mitigation—the first, the defendant's criminal conduct neither caused nor threatened serious physical harm to another, and second, the defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another. I cannot consider them in lieu of the fact it's an element of the offense in this case, when death is an element of the offense and serious bodily harm, Court cannot consider that at sentencing, a sentence is not aggravated or mitigated in this case.

Number three, the defendant acted under a strong provocation. From what evidence Court has heard throughout this entire trial, the facts, even at Torres' trial, it's clear this was an unprovoked assault by two young teenagers out beyond hours that they should be out on the street, up in Chicago, travelling around unsupervised, they should not be travelling in Chicago, should be home, but in any event on the night in question when this—the night this murder occurred, an aggravated assault occurred, these defendants acted under no provocation. In fact, the statement of [defendant] himself as he told one of his friends the day afterwards when he is getting rid of the club, the lower portion of the club, he said they beat up two guys, jumped two guys because they had nothing else to do. Nothing else to do—so on the night in question—Court finds absolutely no provocation, no taunting by Van Klavern, no taunting by Jordan, they were simply walking home.

There were substantial grounds tending to excuse or justify the defendant's criminal conduct though failing to establish a defense. I don't find any in this case.

The defendant's criminal conduct was induced or facilitated by someone other than the defendant. Yes and no. I think it's clear if you listen to the testimony of Olvera and Torres, corroborated by friends of the defendant he was prime mover in this case to go outside and assault the two boys. Now that doesn't excuse Torres. He knew exactly what he was doing. He got out of that car with the defendant, they took parts of that club, crawled by a cement wall waiting to assault two young men in the street. I think it's clear he and Torres were two planners of the fight and prime mover was [defendant].

Defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained. Inapplicable in this case. No monetary damage shown here, no monetary damage that would apply.

The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime. No great criminal record. I want to note [he] had drug problems, very serious in the [PSI], his mother was attempting to get him help for, had a fighting problem, but his real record was couple thefts as you point out. I am not basing—if anything is probably mitigating to the defendant.

The defendant's criminal conduct was the result of circumstances unlikely to recur. Court cannot come to that conclusion, [defendant], you have tried to alibi for yourself from day one when the evidence is overwhelming against you. You never thought your friends would turn on you but they did, they helped convict you in this case, the people you ran with, not the people the victim ran with, day after the crime depositing of evidence, lower half of the club with blood on it. It's clear the day after, after the day of the crime, you are taking people to the crime scene, almost in a bragging way this is where we jumped two people, had a fight, pointed it out to your friends, had this alibi in Court, you weren't there, all the way—The imprisonment of the defendant would entail excessive hardship to his dependents. No evidence of that—he has no dependents at this point.

The imprisonment of the defendant would endanger his or her medical condition. No evidence of this and not mentally retarded as defined in the Code, I don't find factors in mitigation there.

Factors in aggravation, actually the flip side. I think when you turn to this, sentence necessary to deter others from committing the same crime.

Court is considering [defendant's] rehabilitation potential which you, you are a young man, you have committed a horrible crime. The Court must balance this, all part

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