People v. Salgado

1

2024 IL App (4th) 230405-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO SALGADO, a/k/a James Delgado, Defendant-Appellant.

No. 4-23-0405

Court of Appeals of Illinois, Fourth District

February 14, 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 Carroll County No. 04CF15 Honorable John J. Kane, Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court. Justices Doherty and Knecht concurred in the judgment.

ORDER

TURNER, PRESIDING JUSTICE.

¶ 1 Held: The appellate court affirmed the trial court's second-stage dismissal of defendant's successive postconviction petition, finding defendant failed to allege sufficient facts to show cause for filing a successive petition.

¶ 2 In August 2004, defendant, Antonio Salgado, a/k/a James Delgado, pleaded guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) in connection with the stabbing death of his wife, Theresa Delgado. On August 7, 2007 defendant filed a petition under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) which the trial court summarily dismissed. On August 30, 2017, defendant filed a motion for leave to file a successive postconviction petition and included a proposed petition. For cause and prejudice under section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2016)) as to why he did not include various claims in his first petition, defendant alleged he depended on an inmate to prepare his first petition, who conned him out of money and filed a petition completely lacking in merit. The court dismissed the petition, and the appellate court reversed because, while postconviction counsel clearly believed defendant's petition was frivolous because it was untimely filed under section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2016)), counsel did not file a motion to withdraw or give defendant any notice of an intent to withdraw. Thus, counsel failed to provide defendant with any representation. People v. Salgado, 2021 IL App (2d) 190970-U, ¶ 31.

¶ 3 On remand, the trial court appointed new counsel, who amended the petition, including allegations defendant was not culpably negligent in filing his petition late under section 122-1(c) because he lacked an interpreter when communicating with previously appointed counsel and did not understand the law. The court granted the State's motion to dismiss, finding in part the petition was untimely under section 122-1(c), and defendant failed to allege sufficient facts to show the delay was not due to his culpable negligence. The court did not discuss cause and prejudice for filing a successive petition.

¶ 4 On appeal, defendant contends his new postconviction counsel rendered unreasonable assistance by failing to refute the State's claim the petition was untimely and failing to pursue various claims. In particular, defendant argues the time limitation in section 122-1(c) of the Act does not apply to successive petitions and the proper analysis was whether he sufficiently alleged cause and prejudice under section 122-1(f) of the Act.

¶ 5 We determine, even if section 122-1(f) applied to defendant's petition, defendant's allegations he lacked an interpreter to communicate with previous appointed counsel, did not understand the law, and relied on an inmate to prepare his first petition were insufficient to show cause for filing a successive petition. Accordingly, we affirm.

¶ 6 I. BACKGROUND

¶ 7 On April 2, 2004, a grand jury indicted defendant on three counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2004)). On August 9, 2004, defendant pleaded guilty to count I of the indictment under a fully negotiated plea agreement. Pursuant to the plea agreement, the trial court sentenced defendant to 35 years' incarceration.

¶ 8 During the entry of the guilty plea, defendant initially told the trial court he had difficulty understanding the proceedings, but he then said he understood "what we've been doing in this courtroom." Defendant indicated he had no questions about "what has been happening in this case so far." Defendant stated he was a United States citizen and had attended school in Chicago up to the seventh grade. Defendant stated he was able to read the documents pertaining to his case and indicated he understood the charge to which he was pleading guilty. Defendant also acknowledged he understood his trial rights and the possible sentences that the court could impose. Defendant stated no one had threatened or pressured him into pleading guilty. After the State presented a factual basis for the guilty plea, defendant stated he still intended to plead guilty and did not want to wait for the results of a DNA test. Defendant stated he had an adequate opportunity to discuss the case with his attorney. Defendant then pleaded guilty. When the court asked defendant if he had anything to say before sentencing, defendant replied, "No, I have nothing to say." Defendant also stated he had no questions and understood his appeal rights.

¶ 9 A. Postplea Proceedings

¶ 10 Defendant filed a pro se motion to withdraw his guilty plea, alleging he did not understand the proceedings due to drug and alcohol abuse and a limited comprehension of English. Defendant alleged his trial counsel, Donald Schweihs, rendered ineffective assistance by failing to obtain a fitness evaluation and failing to investigate whether defendant had a meritorious defense. Defendant claimed he came home and found his wife engaged in sex with another man just before her death. Defendant also claimed not to remember anything after finding his wife with the other man. Following an evidentiary hearing, the trial court denied defendant's motion to withdraw his guilty plea, and defendant appealed. On appeal, the only issue defendant raised was whether he should be allowed to withdraw his guilty plea because he had a worthy defense. The Second District affirmed. People v. Salgado, No. 2-05-0058 (unpublished order pursuant to Illinois Supreme Court Rule 23).

¶ 11 On August 7, 2007, defendant filed a pro se postconviction petition, alleging his guilty plea was involuntary. In particular, he alleged he did not understand the guilty-plea proceedings because of his limited English. The trial court dismissed the petition at the first stage, and defendant appealed. On appeal, the only issue defendant raised was whether the court properly admonished defendant he would be required to serve a term of mandatory supervised release. The Second District affirmed. People v. Salgado, No. 2-07-0998 (unpublished order pursuant to Illinois Supreme Court Rule 23).

¶ 12 On July 31, 2009, while his postconviction petition was still pending, defendant filed a pro se section 2-1401 petition (735 ILCS 5/2-1401 (West 2008)), seeking to void his conviction on the grounds the trial court failed to order a fitness evaluation and Schweihs was ineffective for failing to request an evaluation. The court granted the State's motion to dismiss and denied defendant's motion to reconsider. Defendant appealed, and the Second District affirmed, but it allowed defendant monetary credit against an assessment for time he spent in presentence custody. People v. Salgado, No. 2-09-1028 (unpublished order pursuant to Illinois Supreme Court Rule 23).

¶ 13 B. Defendant's Successive Postconviction Petition

¶ 14 On August 30, 2017, defendant filed a pro se motion, by and through his "advocate," inmate Michael Wilson, for leave to file a successive postconviction petition and included a proposed petition. In the successive petition, defendant alleged Schweihs (1) failed to conduct an adequate investigation into his sanity and fitness and did not seek a fitness hearing and (2) gave him bad advice, based on a mistake of fact or law, resulting in his plea to first degree murder, when the evidence would have supported a finding of second degree murder. Defendant also alleged the trial court violated his right to due process by taking him at his word that he was educated and able to understand the proceedings after witnessing his poor English speaking and writing and failing to ascertain if he was fit to stand trial.

¶ 15 Defendant also argued he should be granted leave to file his petition because he demonstrated cause and prejudice under section 122-1(f) of the Act. He stated there was cause for his failure to bring his claims in his first petition because he depended on an inmate who assured him, with a cash payment, the inmate could file a "good" postconviction petition on his behalf. Defendant stated the inmate was "conning" him "out of finances," which was simple to achieve as defendant was not educated in the law and could not read or write. As a result, his previous postconviction petition was completely without merit. As for prejudice, he argued, in part, the failure to bring his claims earlier infected the judgment and sentence and violated due process. Defendant did not explain why he could not have filed his successive petition earlier than August 2017 or discuss a lack of culpable negligence in failing to file within the time limitations of section 122-1(c) of the Act.

¶ 16 In a supporting affidavit, defendant averred his counsel never spoke to him about his fitness, the possibility of pleading to second degree murder, or what the State had to prove for first degree murder. Defendant averred those events took place in private, and, for that reason were verified by his affidavit. As to his due process claims, defendant acknowledged the trial court asked if he could read or write. However, defendant averred he lied and said he could do so out of pride and embarrassment.

...