People v. Roman

2022 IL App (1st) 201173

219 N.E.3d 556

467 Ill.Dec. 546

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

v.Martin ROMAN, Defendant-Appellant.

No. 1-20-1173

Appellate Court of Illinois, First District, First Division.

Filed July 25, 2022

James E. Chadd, Douglas R. Hoff, and Joshua M. Bernstein, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Tasha-Marie Kelly, and Whitney Bond, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 A jury found Martin Roman guilty of first degree murder for his participation in the beating death of Francisco Reyes. The trial court sentenced him to 32 years in prison. On direct appeal, this court reversed his conviction and remanded for retrial because the trial court erroneously allowed the State to introduce prejudicial gang evidence. See People v. Roman , 2013 IL App (1st) 110882, 376 Ill.Dec. 840, 1 N.E.3d 552. On remand, Roman pled guilty, and the trial court sentenced him to 24 years in prison. Roman did not appeal.

¶ 2 Roman filed a pro se petition for postconviction relief, contending his remand counsel was ineffective for misstating the sentence he could face following a retrial. In addition, Roman claimed his remand counsel threatened to quit if Roman chose to go to trial instead of accepting a plea. The trial court dismissed his petition at the first stage. We find that the petition makes an arguable claim of ineffective assistance of counsel. Accordingly, we reverse the first-stage dismissal of Roman's postconviction petition and remand for second-stage proceedings consistent with the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2020)).

¶ 3 BACKGROUND

¶ 4 The decision in Roman's direct appeal sets out the details of the offense and the case history. See Roman , 2013 IL App (1st) 110882, 376 Ill.Dec. 840, 1 N.E.3d 552. We reiterate the facts necessary to understand the claims in Roman's postconviction appeal.

¶ 5 In the early morning of December 24, 2007, a group of men beat and killed Francisco Reyes in the parking lot of a tortilla factory. The State charged Martin Roman and five other neighborhood men—Daniel Roman, Carlos Lopez, Ismael Morales, Omar Morales, and Adolfo Zuniga—with first degree murder and robbery. (All references to "Roman" refer to Martin Roman; we identify Daniel Roman by his first and last name.)

¶ 6 Roman and Zuniga were tried together after their codefendants’ convictions. At trial, the State primarily relied on the testimony of three eyewitnesses—Sylvia Ortiz, Fernando Garcia, and Juliana Flores. They all saw the murder from the apartment building across the street. Ortiz and Garcia lived with their son on the second floor. They watched the crime from separate windows facing the parking lot. Flores was with her boyfriend, who lived downstairs from Ortiz and Garcia. She also watched the beating from a window.

¶ 7 Ortiz and Garcia heard a voice outside that they recognized as Daniel Roman's. Ortiz overheard Daniel Roman speaking on a cellphone and asking the person to come over and "help [him]" because someone was about to be beaten. Soon after, Roman, Lopez, Ismael Morales, and Omar Morales arrived. Garcia and Ortiz recognized them from their having been together in the neighborhood every day for four or five years. After the men gathered, they ran toward the factory parking lot where Reyes was operating a forklift. Juan Ramirez, one of Reyes’ coworkers, testified that a supervisor sent Reyes to the parking lot to unload a shipment of corn. The men grabbed Reyes off the forklift seat, forced him to the ground, and hit and kicked him. After Reyes did not return, a supervisor sent Ramirez to check on him. Ramirez found Reyes lying in the parking lot and called 911.

¶ 8 Juliana Flores testified that she was staying at her boyfriend's apartment across the street from the factory, in the same building as Ortiz and Garcia. She heard a man talking outside at about 1:15 a.m. Looking out the window, Flores saw Daniel Roman on his cell phone and heard him speak about beating up someone. She then heard people running and looked out the window to see a group of men going toward the forklift operator. Flores looked away, and the next time she looked out the window, she saw the forklift operator on the ground and the men kicking and hitting him.

¶ 9 Ortiz testified that, earlier in the month, she heard a banging outside around 1 a.m. She looked out a window and saw three men hitting the factory door with baseball bats. Ortiz recognized the men as Roman, Daniel Roman, and Ismael Morales, as she frequently saw them around the neighborhood. When no one opened the factory door, Ortiz saw the men break car windows in the parking lot. She called the police.

¶ 10 A factory employee, Pedro Martinez, testified that he recognized the defendants from seeing them almost every day as he arrived and left work.

¶ 11 After the jury found Roman guilty of first degree murder, the trial court sentenced him to 32 years in prison.

¶ 12 On direct appeal, this court reversed Roman's conviction and remanded for retrial on the ground that gang evidence introduced by the State had no bearing on witnesses’ identification of Roman or any issue. Id. ¶ 37. And, without physical evidence tying Roman to the crime, this court was unable to determine beyond a reasonable doubt that the gang-related evidence did not contribute to Roman's conviction. Id.

¶ 13 On remand, Roman pled guilty. Before pleading, the trial court admonished Roman he would be subject to a sentencing range of 20 to 60 years. After giving the remaining admonishments, the trial court accepted the parties’ negotiated plea and sentenced Roman to 24 years in prison. Roman did not move to withdraw his plea or take another direct appeal from the plea proceedings.

¶ 14 In 2020, Roman filed a pro se petition for postconviction relief. He argued that his defense counsel on remand provided ineffective assistance by misrepresenting the potential sentence range he would face during a retrial, a misstatement repeated by the trial court judge. Roman also alleged that his counsel pressured him into pleading guilty and that, on the day of the trial, counsel stated that he would withdraw if Roman chose to pursue a trial instead of a plea. Attached to corroborate the claims were a verification affidavit, a partial school record, and supporting elements from the trial record, including a section of the plea hearing transcript. The trial court dismissed the petition, finding it frivolous and patently without merit.

¶ 15 ANALYSIS

¶ 16 Roman contends that the trial court erred in summarily dismissing his petition for postconviction relief at the first stage. He maintains that his petition made an arguable claim of ineffective representation by his remand counsel and that he attached enough corroborating material to advance to the second stage. The State responds that Roman had effective counsel and that his petition is insufficient as it lacks an evidentiary affidavit. We agree with Roman.

¶ 17 The Act provides a system through which criminal defendants can raise constitutional claims about their trial or sentencing that were not and could not have been raised on direct appeal. People v. Allen , 2015 IL 113135, ¶ 20, 392 Ill.Dec. 307, 32 N.E.3d 615. Proceedings under the Act advance through three stages. Id. ¶ 21. In the first stage, the trial court evaluates whether the petition is frivolous or patently without merit. Id. If the petition passes this low bar, the trial court dockets it for second stage proceedings. Id. At the second stage, counsel represents the petitioner, who must show that their petition makes a "substantial showing" of a constitutional violation. Id. Should the petition survive, it advances to an evidentiary hearing, the third stage, where the trial court receives evidence and determines whether the defendant deserves relief. Id. ¶ 22.

¶ 18 At the first stage, the petition must be verified by affidavit ( 725 ILCS 5/122-1(b) (West 2020)), and supported by evidentiary "affidavits, records, or other evidence" (id. § 122-2). If the supporting " ‘affidavits, records, or other evidence’ are unavailable, the petition must explain why." People v. Collins , 202 Ill. 2d 59, 65, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002) (quoting 725 ILCS 5/122-2 (West 2000) ). Failure to attach the necessary " ‘affidavits, records, or other evidence’ or explain their absence is ‘fatal’ to a post-conviction petition [citation] and by itself justifies the petition's summary dismissal." Id. at 66, 270 Ill.Dec. 1, 782 N.E.2d 195.

¶ 19 With these requirements in mind, we take all allegations in the petition as true unless rebutted by the record and construe them liberally in Roman's favor. Allen , 2015 IL 113135, ¶ 25, 392 Ill.Dec. 307, 32 N.E.3d 615. A petition at this stage can be dismissed only if it "has no arguable basis either in law or in fact." People v. Hodges , 234 Ill. 2d 1, 11-12, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). To warrant dismissal, Roman's claim needs to be built on " ‘an indisputably meritless legal theory or a fanciful factual allegation.’ " Allen , 2015 IL 113135, ¶ 25, 392 Ill.Dec. 307, 32 N.E.3d 615 (quoting Hodges , 234 Ill. 2d at 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 ). We review de novo the first stage dismissal of Roman's petition. Hodges , 234 Ill. 2d at 9, 332 Ill.Dec. 318, 912 N.E.2d 1204.

¶ 20 Roman alleges that his remand counsel erroneously advised him that he could face a sentence nearly twice his original sentence following a retrial. Roman also alleges that his counsel threatened to quit if he went ahead with retrial, instead of accepting the negotiated plea.

¶ 21 We assess these claims using the two-pronged test evaluating deficiency and prejudice set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)....