People v. Perez

233 N.E.3d 334

2023 IL App (4th) 220280

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

v.Anthony M. PEREZ, Defendant-Appellant.

NO. 4-22-0280

Appellate Court of Illinois, Fourth District.

Filed February 28, 2023

Rehearing Denied March 22, 2023

Appeal from the Circuit Court of Boone County, No. 13CF270, Honorable C. Robert Tobin III, Judge Presiding.

Ian M. Barney and Madison N. Heckel, of Barney & Hourihane, LLP, of Evanston, for appellant.

Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, David J. Robinson, and Melissa S. Schwoerer, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

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

¶ 1 Defendant, Anthony M. Perez, appeals an order dismissing his postconviction petition at the second stage of proceedings. Defendant’s retained counsel filed an untimely postconviction petition on defendant’s behalf without pleading defendant’s lack of culpable negligence. Counsel’s one-day delay seems due to his miscalculating the deadline to file a petition for certiorari in the Supreme Court of the United States after the Illinois Supreme Court denied leave to appeal in defendant’s direct appeal. As a result, the trial court dismissed defendant’s postconviction petition on the State’s motion without considering the merits of most of defendant’s claims. On appeal, defendant’s primary contention is that he received unreasonable assistance of postconviction counsel. The most significant issue for our consideration is whether we should automatically remand the matter for further second-stage proceedings due to counsel’s mistake or whether we should instead consider the merits of defendant’s postconviction claims. For the following reasons, we hold that it is appropriate to consider the merits of defendant’s postconviction claims, and we affirm the trial court’s judgment.

¶ 2 I. BACKGROUND

¶ 3 Following a trial in the circuit court of Boone County, a jury found defendant guilty of three counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)), two counts of attempted first degree murder, aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)), unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)), and mob action (720 ILCS 6/25-1(a)(1) (West 2012)). The jury further found that defendant personally discharged a firearm. The court sentenced defendant to an aggregate of 95 years in prison. The Second District of the Illinois Appellate Court affirmed the judgment on direct appeal, providing a lengthy summary of the trial evidence. People v. Perez, 2020 IL App (2d) 180073-U, 2020 WL 473642. We will recount only the facts necessary to understand defendant’s post-conviction claims.

¶ 4 In the early morning hours of November 30, 2013, two armed men approached a parked car occupied by Giovanni Galicia, Jesus Casas, and Fermin Estrada. One of the armed men opened fired at the car. Galicia was killed, but neither Casas nor Estrada were hit. Shortly thereafter, a police officer engaged in a high-speed chase with a Lincoln Navigator that was suspected to be driven by the perpetrators, When the Navigator eventually stopped, the occupants fled from the vehicle, The police quickly apprehended three people—Ricardo Garcia, Ricardo Figueroa, and Cheyanne Patton. The police later observed that all four doors of the Navigator were open, suggesting that a fourth suspect escaped on foot. Inside the Navigator, the police found the gun that was used in the shooting. The police found a second gun nearby in the street. The State’s theory at trial was that defendant was the shooter who escaped from the Navigator on foot.

¶ 5 Authorities were unable to connect defendant to the shooting with either fingerprint or DNA evidence. The murder weapon was determined to contain a mixture of DNA from at least two individuals. Specifically, there was a major female profile along with an incomplete minor profile. Patton, the only female who submitted a swab for comparison, was excluded as contributing to that major profile. The State introduced evidence that defendant made statements to fellow inmates at the county jail expressing his belief that the female DNA may have come from defendant having previously hit an unidentified woman with the gun or having put the gun to that woman’s head.

¶ 6 Neither Casas nor Estrada ever identified defendant as one of the perpetrators. Casas did not get a good look at either of the armed men. Although Estrada noticed that the shooter wore a hoodie and had his face covered, Estrada initially told the police, with either 85% or 100% certainty, that the shooter was somebody other than defendant.

¶ 7 Patton, however, identified defendant as the shooter. Patton testified that she attended a party the evening before the shooting at a residence in Belvidere she shared with Garcia and Mallek Sanchez. Patton claimed that Garcia, Figueroa, and defendant were at the party. Patton saw both Figueroa and defendant taking "pictures with a gun" at the party. Patton explained that Garcia then drove her, Figueroa, and defendant in a Navigator to a different area of Belvidere to "get at somebody." Patton testified that Figueroa and defendant exited the Navi- gator, then Patton heard gunshots. Figueroa and defendant returned to the Navigator. Defendant, who was holding a gun, then made a comment about having just shot somebody in the face.

¶ 8 The State also presented evidence from two witnesses, Hugo Pena and Patrick Brooks, who detailed their conversations with defendant in the Boone County jail after the shooting. Pena and Brooks both testified that defendant made incriminating statements to them about his involvement in the shooting. Pena also stated that he saw one or more photographs on Facebook where defendant was wearing a "du-rag" and "showing" a gun. Those photographs, which Pena said had since been taken down from Facebook, were not admitted into evidence. Apparently, the State never possessed those photographs. Some of the details that Brooks claimed defendant told him did not conform to the known facts about the shooting.

¶ 9 The State presented Joseph Raschke, a special agent with the Federal Bureau of Investigation, as an expert on the topic of historical cell-site analysis. Raschke tracked the movements on the night of the shooting of a phone that the State linked to defendant. The movements of that phone were consistent with the State’s theory that defendant fled the scene of the shooting in the Navigator. There was extensive pretrial litigation and trial testimony addressing the reliability of the State’s cell-site-analysis evidence. The defense wanted to call Joseph Kennedy as a cellular technology expert to counter Raschke’s opinions. The trial court found Kennedy unqualified and, thus, barred his testimony.

¶ 10 The jury found defendant guilty of all charges and found that he personally discharged a firearm. The court sentenced defendant on five of the eight counts to an aggregate of 95 years in prison.

¶ 11 The Second District affirmed the judgment. As it pertains to the present appeal, the court held that (1) the State proved defendant guilty beyond a reasonable doubt, (2) there was no merit to defendant’s challenges to various portions of Raschke’s testimony, and (3) defendant failed to present a cogent plain-error argument, so the court would not review defendant’s forfeited challenge to Pena’s testimony describing the photographs he saw on Facebook. Perez, 2020 IL App (2d) 180073-U, ¶¶ 92; 128-34, 142-44.

¶ 12 On May 27, 2020, our supreme court denied defendant’s petition for leave to appeal. People v. Perez, No. 125824, 147 N.E.3d 689 (Ill. May 27, 2020). The due date for filing a petition for certiorari with the Supreme Court of the United States was August 25, 2020. See S. Ct. R. 13(1) (a petition for certiorari is due within 90 days after the state court of last resort denies discretionary review).. Defendant did not file a petition for certiorari. Thus, defendant’s deadline for filing a postconviction petition was "February 25, 2021. See 725 ILCS 5/122-1(c) (West 2020) ("If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence."). However, this deadline does not apply to claims of actual innocence. 725 ILCS 5/122-l(c) (West 2020).

¶ 13 On February 26, 2021, one day after the deadline, defendant, represented by the same law firm that represented him on direct appeal, filed a postconviction petition. Defendant did not allege that his one-day delay in filing was not due to his culpable negligence. Defendant raised six claims, some of which had multiple subparts. We will mention only the aspects of the claims that are relevant to this appeal.

¶ 14 Defendant claimed that "the trial court improperly admitted speculative testimony disguised as expert opinions[,] causing the jury to be misled as to the limitations of [historical cell-site analysis], violating defendant’s right to due process and rendering defendant’s trial fundamentally unfair." Although defendant acknowledged that the appellate court rejected a similar challenge to Raschke’s testimony in defendant’s direct appeal, defendant asserted that "it is now known that Raschke’s testimony was mere speculation." In support of this allegation, defendant attached the affidavit of Manfred Schenk, a computer scientist. In his affidavit, Schenk described why he believed Raschke reached erroneous conclusions about the locations of defendant’s cell phone on the night of the shooting.

¶ 15 Defendant also claimed that his trial counsel was ineffective for failing to preserve challenges to Pena’s testimony about what he saw on Facebook. According to defendant, Pena’s testimony was...