People v. Rivera

64 N.E.3d 1

407 Ill.Dec. 623

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

v.Michael RIVERA, Defendant–Appellant.

No. 1–13–2573.

Appellate Court of Illinois, First District, First Division.

July 18, 2016.

Rehearing Denied Sept. 28, 2016.

Modified Upon Denial of Rehearing Oct. 3, 2016.

Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, and Darren E. Miller, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant Michael Rivera appeals from the circuit court's granting of the State's motion to dismiss his post-conviction petition. Defendant, John Crowe and four others were charged with first degree murder in the 1998 shooting death of Marcus Lee. To support a claim of actual innocence, defendant attached to his petition Crowe's affidavit in which he attested that he, and not defendant, shot the victim. In this appeal, defendant contends the circuit court erred in dismissing his petition at the second stage of post-conviction proceedings after reviewing the transcript of Crowe's guilty plea hearing and finding Crowe's affidavit was not credible. He further asserts his post-conviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) by failing to object to the circuit court's consideration of that transcript.

¶ 2 To summarize the facts adduced at defendant's trial, defendant was a member of the Insane Deuces street gang. In the early morning hours of January 10, 1998, defendant was riding in a van with other gang members, including Crowe and his brother, Stephen Crowe. Defendant saw Lee walking and mistakenly believed him to be a member of a rival gang. Defendant pointed a gun at the van driver and told him to stop. Defendant and the Crowe brothers got out of the van and returned after shots were fired. Defendant was holding the gun when they returned to the van. Defendant later showed the gun to other gang members and said he was a "Stone killer."

¶ 3 Defendant's jury trial took place in 2000, and he was found guilty of first degree murder. The trial court determined that defendant was eligible for an extended-term sentence as the leader of an organized gang (730 ILCS 5/5–5–3.2(b)(8) (West 1998)), and the court sentenced defendant to 85 years in prison. On appeal, this court affirmed defendant's conviction and sentence. People v. Rivera, 348 Ill.App.3d 168, 182, 284 Ill.Dec. 476, 810 N.E.2d 129 (2004). The Illinois Supreme Court remanded defendant's case for a limited hearing to allow the trial judge to articulate the bases for his rulings on the defense's exercise of peremptory challenges. People v. Rivera, 221 Ill.2d 481, 515–16, 304 Ill.Dec. 315, 852 N.E.2d 771 (2006). Following that remand, the supreme court affirmed defendant's conviction and sentence, finding that any issue regarding a peremptory challenge in defendant's case constituted harmless error, given the strength of the State's case against defendant. People v. Rivera, 227 Ill.2d 1, 26, 316 Ill.Dec. 488, 879 N.E.2d 876 (2007) ; see also Rivera v. Illinois, 556 U.S. 148, 162, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (affirming the use of a harmless error analysis).

¶ 4 On January 10, 2008, defendant filed a pro se petition seeking relief under the Post–Conviction Hearing Act (the Act) (725 ILCS 5/122–1 et seq. (West 2006)), claiming, inter alia, that the evidence was insufficient to establish his guilt and his trial counsel provided deficient representation for several reasons.

¶ 5 Defendant also raised a claim of actual innocence, supported by an affidavit of Crowe. Defendant stated in the petition that police "arrested and detained close to a dozen Deuces' suspects" who provided varying accounts of the shooting. Defendant asserted he had obtained an affidavit from Crowe "who has fully confessed to the crime of which the Petitioner was wrongly convicted of."

¶ 6 Crowe and his brother were tried jointly in 1998 for Lee's death, and Crowe was convicted of first degree murder on an accountability theory and sentenced to 50 years in prison.¹ On appeal, this court reversed Crowe's conviction and remanded for a new trial because Crowe was deprived of his right to be represented by the counsel of his choice. People v. Crowe, 327 Ill.App.3d 930, 938, 262 Ill.Dec. 57, 764 N.E.2d 1174 (2002). On remand, Crowe entered a guilty plea.

¶ 7 In Crowe's affidavit, which was dated April 9, 2004, he attested that he and his brother were in the van with other individuals on the night in question. Crowe did not mention defendant was present. Crowe attested he and his brother got out of the van after someone pointed out a rival gang member. Crowe stated that he fired five shots and one shot struck Lee in the neck. Crowe concluded by stating he was "giving this affidavit because my conscience has made it very difficult to live with myself these last 7 years with Micheal Rivera [sic ] having [ ] convicted for a murder he did not commit."

¶ 8 Post-conviction counsel was appointed for defendant. In December 2011, counsel filed a Rule 651(c) certificate stating that he had consulted with defendant by phone and had obtained and examined the report of proceedings of defendant's trial. Counsel stated that defendant's pro se petition adequately presented his post-conviction claims.

¶ 9 On September 28, 2012, the State filed a motion to dismiss defendant's post-conviction petition, asserting Crowe's affidavit did not meet the test for evidence of actual innocence because it was not newly discovered and was "clearly lacking in reliability." The State acknowledged that at that stage of post-conviction review, well-pleaded facts in the petition and accompanying affidavits were to be taken as true. The State argued Crowe's affidavit represented an inherently unreliable recantation and his attestations that he fired the fatal shots and that defendant was not present at the time of the shooting were "positively rebutted by the record."

¶ 10 On January 25, 2013, the circuit court heard arguments on the State's motion to dismiss. As to Crowe's affidavit, the State asserted that his attestation that he was the gunman was rebutted by Crowe's January 2004 guilty plea proceedings. The State further argued Crowe's affidavit was rebutted by the testimony at defendant's trial that defendant was the shooter. Post-conviction counsel offered no argument, stating he would "stand on the pro se petition" of defendant. The circuit court stated it would "review the record and the pleadings and the arguments" of the State.

¶ 11 At a later court date, the circuit court indicated it had reviewed the record and Crowe's affidavit. The court noted that Crowe's conviction had been reversed and he had entered a guilty plea. The court asked the State for a transcript of the court proceedings on Crowe's plea.

¶ 12 The following colloquy then took place:

"THE COURT: I don't imagine it is a very long transcript, but from what I can see from the record, his case was reversed, I don't know why, and after the reversal there was probably some agreement he reached with the State for something lesser would be my guess.

MR. PAPA [assistant State's Attorney]: 20 years.

MR. LANDRUM [post-conviction counsel]: It is probably important to see what the factual basis was.

THE COURT: Exactly. You are reading my mind, Mr. Landrum. We are thinking alike here."

¶ 13 The circuit court told the attorneys that it would obtain the transcript. At the next court date, the court told the attorneys it had obtained "a copy of the plea" taken by Crowe.

¶ 14 In support of the motion to dismiss defendant's petition, the State argued it was "pretty obvious that the plea that Mr. Crowe was sworn to refutes the affidavit that he has signed several years, I believe, after the plea." The State asserted that the record "absolutely rebuts any of the allegations in the affidavit as well as the rest of the record." Post-conviction counsel for defendant offered no argument.

¶ 15 In granting the State's motion to dismiss, the circuit court stated:

"Much of the petition as pointed out in the State's motion is * * * res judicata [ ] has already been ruled on.

I do not believe the ineffective assistance issue passes the Strickland muster at all.

The only thing that really concerns me was this new affidavit by the co-defendant Mr. Crowe which was dated on April 9th of 2004 and as the State points out, these things are usually viewed with suspicion particularly when they are executed by a co-defendant, a fellow gang member as well.

Case law is replete with examples of that. This is not something to be based—the credibility is always—credibility is always suspect in something like this.

And as a result I ordered the transcript as Mr. Papa points out of the plea that Mr. Crowe took before Judge Wadas on the 7th of January, 2004.

And he was placed under oath in that he was represented by counsel.

And in that plea he completely contradicts everything that's contained in the affidavit and it's kind of confirms [sic ] my suspicions.

So not only is Mr. Crowe involved in this murder committed by Mr. Rivera but he is an unmitigated perjurer and not to be believed in any way shape or form.

There is absolutely no truthful basis for anything that he says in this affidavit.

And because of that there is nothing in this Mr. Rivera's petition that would cause me to grant him a post-conviction [sic ].

The motion to dismiss is considered and is granted."

¶ 16 Defendant now appeals that ruling.

¶ 17 The Act provides a method by which offenders serving their sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or Illinois constitutions or both. People v. Tate, 2012 IL 112214, ¶ 8, 366 Ill.Dec. 741, 980 N.E.2d...