People v. Oliveros

1

2024 IL App (1st) 210303-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERNANDO OLIVEROS, Defendant-Appellant.

No. 1-21-0303

Court of Appeals of Illinois, First District, Third Division

February 28, 2024

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 Cook County. No. 20 CR 733 Honorable Neera Walsh, Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment.

ORDER

LAMPKIN, JUSTICE

¶ 1 Held: Defendant's first-stage petition for postconviction relief successfully stated the gist of a constitutional claim and the trial court's judgment dismissing defendant's petition is reversed.

¶ 2 Defendant Fernando Oliveros is currently serving a 90-year sentence in the Illinois Department of Corrections (IDOC) subsequent to convictions for numerous counts of predatory criminal sexual assault, aggravated criminal sexual abuse and aggravated child pornography. Defendant now appeals the trial court's dismissal of his pro se first-stage petition for postconviction relief pursuant to the Post-Conviction Hearing Act (the Act), 725 ILCS 5/122-1 et seq. (West 2020).

¶ 3 For the reasons that follow, we reverse the judgment of the trial court and remand for second-stage proceedings and the appointment of counsel.^[1]

¶ 4 I. BACKGROUND

¶ 5 On January 11, 2013, defendant was charged by indictment with six counts of predatory criminal sexual assault, seven counts of aggravated child pornography, seven counts of aggravated sexual abuse of a child, and seven counts of child pornography, all taking place over a period of approximately seven and a half years between May 7, 2005, and October 4, 2012. Following a bench trial, the trial court found defendant guilty of all charges and subsequently sentenced defendant to an aggregate term of 100 years in the Illinois Department of Corrections (IDOC). On appeal, we vacated defendant's conviction for one of the predatory criminal sexual assault counts, but otherwise affirmed the judgment of the trial court. People v. Oliveros, 2019 IL (1st) 161096-U, ¶ 2. Upon resentencing, defendant's sentence was reduced to 90 years. Our prior decision set forth the trial evidence in detail, so we will repeat only what is necessary for the instant appeal.

¶ 6 The trial court held a hearing on defendant's motion to suppress evidence on October 26, 2015. That motion claimed that defendant's cellphone had been unlawfully searched without a warrant. Araceli Del Pilar, defendant's girlfriend between 2003 and 2012, testified that she looked at defendant's cellphone on October 4, 2012, after retrieving it from his work briefcase. Del Pilar retrieved the cellphone after her daughter, J.S., told her that defendant would take pictures and videos of her. Upon examining the cellphone, Del Pilar found pictures of J.S. without clothes on and videos of defendant performing various sex acts on her. She called 911 and was told to come to the police station with her daughter. Del Pilar did so and left defendant's cellphone with the police. No police officer turned the cellphone on in Del Pilar's presence.

¶ 7 Chicago Police Department (CPD) Detective Manuel De La Torre testified that he spoke with J.S. and Del Pilar on October 10, 2012. Del Pilar told De La Torre that she went to the police department and asked for advice, and she was told to bring J.S. with her and make a report. But she was not told to get defendant's cellphone and bring it with her. De La Torre testified that he obtained a search warrant for the phone "on or after October 5, 2012." The State then, prompting De La Torre with the actual cellphone, asked him, "And is this the cellphone that you recovered from CPD inventory after obtaining a search warrant on October 5, 2012?" and De La Torre responded, "Yes." De La Torre further testified that he brought the cellphone to the Regional Computer Forensics Lab (RCFL) on an unspecified date to be forensically examined and that he never turned the phone on himself. The trial court granted the State's motion for a directed finding and denied the motion to suppress evidence.

¶ 8 Defendant's case proceeded to a bench trial on February 19, 2016. J.S., who was 14 years old at the time of trial, testified that she lived with defendant between the ages of four and eleven. Her earliest memory of defendant's abuse was of defendant touching her chest under her shirt at the age of four. When she was seven years old, the defendant began touching her other places, including her vagina. The abuse eventually progressed to defendant penetrating her vagina with his penis, which defendant sometimes filmed and would later show to J.S. Small excerpts from sexually explicit videos were played at trial, and J.S. confirmed that each video accurately depicted what defendant had done to her between the ages of four and eleven. Defendant's face was visible in almost all of the videos. Del Pilar testified similarly to her testimony at the motion to suppress evidence, except that she claimed the 911 operator "said I had to take my daughter and take the evidence and that's what I did." The trial court found defendant guilty on every count and on appeal, we affirmed defendant's conviction with the one exception noted above.

¶ 9 On August 19, 2020, defendant filed a pro se petition for postconviction relief. Defendant, citing Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), alleged that the State violated his due process rights by failing to disclose exculpatory evidence that impeached De La Torre and by presenting false testimony. Defendant's petition attached a number of documents in support of his claim which were obtained through Freedom of Information Act requests to the Federal Bureau of Investigation (FBI) and the City of Chicago. One document was a letter defendant claims was sent from De La Torre to the RCFL on February 21, 2013, requesting a forensic examination of defendant's cellphone.^[2] Defendant also attached a "Request for Service" form for the RCFL, allegedly completed by De La Torre on February 21, 2013.^[3] That form contained a question that read, "Has this Evidence been previously viewed and/or accessed by anyone?" The box that read, "No," was checked. The form also noted that the cellphone was locked with a password, but defendant alleged that the cellphone did not have a password while it was in his possession. Subsequent to the cellphone being delivered to the RCFL, on April 23, 2013, the RCFL sought the FBI's assistance because "an application called application protection is encountered," which "protects the settings and other parts of the phone making it unable to be processed."

¶ 10 Defendant also attached the search warrant that was issued for defendant's cellphone on December 7, 2012, not October 5, 2012, and a "Chain of Custody" log for defendant's cellphone. The log showed that defendant's cellphone was checked out by De La Torre on December 5, 2012, two days before the search warrant was issued, and there are no further entries until almost three years later on November 5, 2015. Additionally, defendant attached a complaint for a search warrant completed by De La Torre which sought authorization to search additional digital storage devices found by Del Pilar in her home. That December 7, 2012, complaint stated that a December 6, 2012, warrant to search defendant's cellphone was approved, and that a subsequent search of the cellphone revealed images of J.S. and defendant engaged in sexual acts. The complaint did not state when the cellphone was searched or who did so. Finally, defendant attached a copy of a portion of a report completed by De La Torre on February 4, 2013, approximately three weeks before the request to RCFL was made, which noted that defendant's cellphone was searched pursuant to a warrant, though it, too, did not specify when the cellphone was searched or who did so.

¶ 11 Based on these documents, defendant claimed that De La Torre perjured himself at the hearing on the motion to suppress evidence when he claimed that he had never turned the cellphone on prior to sending it to the RCFL, and that the State wrongfully suppressed the information in these documents. Defendant further alleged that if these documents had been produced, the outcome of his motion to suppress would have been different. Defendant also alleged that trial counsel provided ineffective assistance for a number of reasons including, but not limited to, that trial counsel failed to perform a reasonable investigation, failed to call certain witnesses, and failed to argue that defendant's convictions violated the principle of one act, one crime. Defendant also alleged the ineffectiveness of appellate counsel for failing to raise some of trial counsel's errors on direct appeal.

¶ 12 On October 29, 2020, the trial court dismissed defendant's petition as frivolous and patently without merit. This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 The Act provides a mechanism by which a defendant may raise a collateral attack against his or her conviction based on a claim of actual innocence or where there was a substantial denial of his or her rights under the Constitution of the United States, the State of Illinois, or both. 725 ILCS 5/122-1 et seq. (West 2020). The purpose of postconviction proceedings is to allow inquiry into constitutional issues involved in the original conviction and sentence that have not been, and could not have been, adjudicated previously on appeal. People v Buffer, 2019 IL 122327, ¶ 12. Review of the trial court's dismissal of a ...