People v. Valencia

1

2024 IL App (1st) 210583-UB

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. IAN VALENCIA Petitioner-Appellant.

No. 1-21-0583

Court of Appeals of Illinois, First District, Fifth Division

June 7, 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. 09 CR 11653 Honorable James M. Obbish, Judge Presiding.

JUSTICE NAVARRO delivered the judgment of the court. Presiding Justice Mitchell and Justice Ocasio concurred in the judgment.

ORDER

NAVARRO, JUSTICE

Held: Trial court properly granted the State's motion to dismiss petitioner's second-stage postconviction petition where petitioner failed to make a substantial showing that (1) he was actually innocent of attempted first degree murder; (2) he was deprived of effective assistance of counsel; and (3) his sentence was unconstitutional as applied to him.

¶ 1 Petitioner, Ian Valencia, appeals from the trial court's grant of the State's motion to dismiss his second-stage postconviction petition. On appeal, Valencia contends that he made a substantial showing that: (1) he was actually innocent of attempted first degree murder where he presented newly discovered evidence; (2) he was deprived of effective assistance of trial counsel where counsel advised him not to testify; and (3) the mandatory sentencing scheme that led to his 26-year sentence is unconstitutional as applied to him. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Following a bench trial, Valencia was found guilty of two counts of attempted first degree murder and one count of aggravated discharge of a firearm stemming from an incident that occurred on June 11, 2009. The details of the trial were discussed on direct appeal in People v. Valencia 2012 IL App (1st) 102312-U, but we will summarize them here as necessary to this appeal.

¶ 4 Nelson Villagomez testified that on the date in question, at approximately 4:45 p.m., he and his brother, Freddie Villagomez, began walking home from the bus stop located near their apartment at 4130 North Kimball. Id. ¶ 3. As they walked northbound on Kimball, Nelson noticed a gray Oldsmobile with a man, later identified as Walter Quevedo, in the driver's seat. Id. The car pulled up alongside Nelson and Freddie. Id.

¶ 5 According to Nelson, Valencia, who was in the passenger seat, "started gang banging" to Nelson and Freddie, and "threw up a gang sign." Id. ¶ 4. In response, Nelson told him that he was not "gang banging." Id. The encounter lasted approximately 20 seconds. Id. Nelson and Freddie were not carrying any weapons and did not make any motions towards the car. Id. Nelson had no connection to a gang. Id.

¶ 6 Freddie walked ahead of Nelson as they crossed the street. Id. ¶ 5. He was a couple steps from their front door when Nelson observed the Oldsmobile parked in an alley, about half a block from his home. Id. With both arms raised and his palms up, Nelson said to Valencia, "What you want to do?" Id. Nelson then observed Valencia's hand come out of the passenger window, saw flames from a gun, and heard approximately six gunshots. Id. Valencia was shooting in Nelson's direction. Id.

¶ 7 When the shooting stopped, Nelson got up from the ground, checked to make sure his brother was safe, and then called the police to report the shooting. Id. ¶ 6. The police arrived within a few minutes and took Nelson and Freddie to the police station, where Valencia and Quevedo were in police custody. Id. Nelson and Freddie positively identified Valencia as the passenger and the shooter, and Quevedo as the driver. Id.

¶ 8 Freddie Villagomez's testimony was substantially the same as that of Nelson's. Id. ¶¶ 78. Officer John Becker testified that a search of the Oldsmobile revealed a semiautomatic .380-caliber Kel-Tec handgun and two .380-caliber bullets in a hidden compartment under the glove compartment on the passenger side. Id. ¶ 9.

¶ 9 Officer Becker testified that he spoke with Valencia on the night of the shooting, and that Valencia said Quevedo told him there was a gun underneath the dashboard on the passenger side, so Valencia retrieved the gun and shot at Nelson and Freddie until the gun was empty. Id.

¶ 10 Amy Campbell, an evidence technician, testified that she found five expended shell casings at the mouth of the alley. Id. ¶ 10. She also recovered a fired bullet lodged in the front siding, beneath the second-floor window of the home next door to Nelson and Freddie's apartment building. Id. She recovered a fired bullet from the flowerbed located in front of the brothers' apartment building. Id.

¶ 11 At the conclusion of Valencia's bench trial, he was found guilty of attempted murder. During his sentencing hearing, evidence of his criminal history was presented as follows:

"As to [Valencia's] criminal history as findings of juvenile delinquency in 2007, his reckless conduct, possession of a cannabis, fines and delinquency. In 2008, Judge, [Valencia] has a finding of delinquency for aggravated discharge of a firearm. That's an offense for which he was sent to the Juvenile Department of Corrections.

In that offense he fires at an occupied vehicle ***."

¶ 12 In mitigation, Valencia's mother testified that Valencia had "severe bipolar" disorder. He was in therapy talking about his brothers going in and out of jail, his father not being involved in his life, and his mother spending a lot of time at work. Valencia's mother testified that Valencia was 8 years old when he was diagnosed with bipolar disorder, and that he cooperated with treatment last when he was "15 or 16" years old. He was in custody for aggravated discharge of a firearm for two months, and then it was several months later that he was arrested for the current crime.

¶ 13 Defense counsel requested the minimum sentence of 26 years' imprisonment.

¶ 14 The trial court sentenced Valencia to the minimum of 6 years' imprisonment for attempted murder, enhanced by a mandatory 20-year term for personally discharging a firearm during the commission of the offense.

¶ 15 On direct appeal, Valencia argued that the State failed to prove him guilty of attempted murder beyond a reasonable doubt. This court disagreed and affirmed the trial court's judgment. People v. Valencia, 2012 IL App (1st) 102312-U.

¶ 16 On July 12, 2013, Valencia filed a pro se postconviction petition raising the following arguments: (1) he was actually innocent of attempted first degree murder; (2) trial counsel was ineffective for telling Valencia that his juvenile adjudications were admissible against him, which caused him to give up his right to testify at trial; (3) trial counsel was ineffective for failing to interview a witness; (4) trial counsel was ineffective for telling him to reject the State's plea offer of nine years' imprisonment in exchange for a guilty plea to one count of Class 1 aggravated discharge of a firearm; and (5) the 20-year mandatory firearm enhancement violated the United States and Illinois constitutions as applied to 17-year-olds.

¶ 17 Valencia supported his petition with numerous affidavits. In support of his actual innocence claim, he attached the affidavit of James Galambos, whom Valencia met while they were both incarcerated at Stateville Correctional Center. Galambos stated in his affidavit that he witnessed the shooting and that he "saw the gun pointed upward at an angle, not towards the man that was yelling."

¶ 18 The trial court summarily dismissed Valencia's pro se postconviction petition. Valencia appealed.

¶ 19 On appeal, Valencia contended that his postconviction petition was improperly dismissed because it raised arguable claims of: (1) actual innocence; (2) ineffective assistance of counsel; and (3) unconstitutional sentencing. People v. Valencia, 2016 IL App (1st) 133524-U. We found that the trial court was misplaced in relying on two cases, People v. Brown, 54 Ill.2d 21, 24 (1973) and People v. Thompkins, 161 Ill.2d 148, 177-78 (1994), in dismissing Valencia's petition because both cases discussed the dismissal of second-stage petitions, not first-stage petitions. Valencia, 2016 IL App (1st) 133524-U, ¶ 28. We noted that Valencia's petition was merely at the first stage of postconviction proceedings, "where the threshold for survival is low." Id.

¶ 20 Based on our determination that the trial court applied an incorrect standard when reviewing Valencia's petition, we then looked at the petition with the correct standard and found that there was nothing in the record to affirmatively rebut Valencia's claim that his attorney told him that if he testified, the shooting he took part in as a juvenile would be used against him by the State. Id. ¶ 31. Accordingly, we found that it was arguable that counsel's advice misled Valencia into thinking that, no matter what, his juvenile adjudication would be used against him if he testified. Id. ¶¶ 29-30. Accordingly, because we found that Valencia's petition adequately set forth allegations that showed his counsel's performance arguably fell below an objective standard of reasonableness and that he was arguably prejudiced, we reversed and remanded with directions to advance Valencia's petition to the second stage. Id. ¶ 31. In doing so, we stated:

"We do not, by our ruling, suggest that defendant's argument will ultimately prevail. Rather, we are following long established legal precedent regarding the procedural process which must be applied to a postconviction petition. In the instant case, the record suggests the trial judge either conflated the first and second stages, or he went directly to the second stage when ruling on defendant's petition. We voice no opinion on the ultimate

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