People v. Velasquez

1

2024 IL App (1st) 231046-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMANDO VELASQUEZ, Defendant-Appellant.

No. 1-23-1046

Court of Appeals of Illinois, First District, First Division

August 5, 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. No. 07 CR 17100 Honorable Joanne Rosado, Judge, presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justice Lavin concurred in the judgment. Justice Pucinski specially concurred.

ORDER

FITZGERALD SMITH, PRESIDING JUSTICE

¶ 1 Held: The second-stage dismissal of defendant's postconviction petition is affirmed over his contention that he received unreasonable assistance of postconviction counsel.

¶ 2 Defendant Armando Velasquez appeals from the second-stage dismissal of his petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, he contends that he received unreasonable assistance of postconviction counsel where counsel (1) failed to amend the pro se petition so that his claim that his 40-year sentence for first degree murder while armed with a firearm violated the Illinois proportional penalties clause was in proper legal form or, (2) if he did not believe the petition could be amended to state a meritorious claim, failed to withdraw. For the reasons that follow, we affirm.

¶ 3 Defendant's conviction arose from the July 8, 2007 shooting death of Jorge Rivas in Chicago, when defendant was 21 years and 5 months old. Following a 2011 jury trial, defendant was found guilty of first degree murder under a theory of accountability. The trial court sentenced him to a total term of 40 years in prison: 25 years for the murder, plus 15 years for being armed with a firearm during the commission of the offense.

¶ 4 We set forth the underlying facts of the case in our order on direct appeal. People v. Velasquez, 2014 IL App (1st) 123366-U. However, due to the nature of defendant's current claim, we repeat some of those facts here.

¶ 5 Around 11 p.m. on July 8, 2007, Rivas was shot and killed in the driver's seat of his car. Three bullets entered the back of his head, three entered the right side of his head/neck, and stippling showed that four of the shots were fired at close range. The medical examiner who performed Rivas's autopsy opined that the shooter would have been positioned on his right, "most likely" in the back seat but, if Rivas had his head turned to the left, the shooter could have been in the front passenger seat. A disinterested witness heard the gunshots and then saw a man walk across her lawn holding his arm as though he had something in his hand. In a lineup and at trial, she identified defendant as the man she saw. A second disinterested witness also heard the shots. Five to ten minutes later, he saw a man exit Rivas's car and head in a direction that took him away from the first witness's home.

¶ 6 At the time of the murder, defendant, who sometimes worked for Rivas, lived with his girlfriend, Lucia Martinez, and his friend, Jonathan Ortiz. The police arrested defendant at their apartment about three weeks after the shooting.

¶ 7 Martinez testified that, the day after the murder, defendant told her that he shot Rivas. Ortiz testified that he overheard defendant tell Martinez that he killed Rivas. Ortiz then confronted defendant, who again stated that he killed Rivas.

¶ 8 The State presented portions of defendant's video-recorded statements to the police. At first, defendant told the police that he was at home with Martinez and Ortiz on the day of the murder. Eventually, defendant told them that Ortiz obtained a gun and gave it to a man named Anthony Buccio. Ortiz told Buccio to kill Rivas and ordered defendant to go with Buccio. Defendant told the police that Ortiz ordered him to accompany Buccio because Rivas trusted defendant. Defendant admitted that Rivas would not have let Buccio into his car if defendant had not accompanied Buccio. According to defendant, Ortiz threatened him, saying that "if something comes out wrong you're gonna die too." Ortiz also threatened that if defendant did not help, Ortiz would have "no choice" but to kill defendant, and that "if you open your mouth your family or your girl's gonna die."

¶ 9 Defendant told the police that Ortiz called Rivas several times and arranged for Rivas to pick up defendant and Buccio in his car. Defendant sat in Rivas's passenger seat and Buccio sat in the back seat. As they drove, Buccio shot Rivas. Defendant admitted that he told Martinez he shot Rivas, but he told the police he had only said that to make himself "look cool."

¶ 10 The jury found defendant guilty of first degree murder and of being armed with a firearm during the offense, but not guilty of personally discharging a firearm causing Rivas's death. Defendant filed a motion for a new trial, which the trial court denied.

¶ 11 At sentencing, defense counsel made corrections to the presentence investigation (PSI) report, which reflected, among other things, that defendant's criminal history included misdemeanor convictions in 2007 for criminal damage to property, driving on a revoked license, and driving on a suspended license, and in 2005 for disorderly conduct.

¶ 12 In aggravation, the State argued that defendant "bragged, he denied and he lied." The State emphasized that Rivas "took six bullets in his head" and that defendant was "neck deep in this murder" rather than a mere "grunt." The State argued for a sentence above the minimum for the purposes of deterrence and protection of the public.

¶ 13 Defense counsel argued that, even if defendant were to receive the minimum aggregate sentence of 35 years' imprisonment, he would not be released from incarceration until he was 58 or 59 years old. As such, counsel asserted that the minimum sentence would suffice to "send a message" and serve the purpose of deterrence. Counsel also argued that the minimum sentence was appropriate "given what the jury believes was his participation in this case," namely, that he did not fire the shots that killed Rivas. Further, counsel stressed that defendant was concerned for Martinez's safety, his criminal history consisted of only four misdemeanors, he was acting under a strong provocation, and his conduct was induced or facilitated by someone else. Counsel concluded that a minimum sentence would be "more than sufficient to protect the safety of the community and to send him the message and anyone else that if they are involved in a criminal proceeding, which he still denies an intent to be involved in, that they will spend the major portion of their young life in prison."

¶ 14 The trial court stated that it had reviewed the PSI report and the factors in aggravation and mitigation. The court acknowledged the defense argument that defendant had been threatened to participate in the crime or "harm would come to him and his girlfriend," as well as the State's argument that defendant's actions belied that claim. The court noted that the jury "heard all of that" and still found defendant accountable for first degree murder and either accountable for Buccio's possession of a weapon or guilty of having possessed a weapon himself. The court stated that, even though defendant said he had been threatened, it was "very troubling" that he "was aware that the only way [Rivas] would become a victim is if [defendant] were along for the ride." The court sentenced defendant to 25 years for the murder, plus 15 years for possessing a firearm, for a total sentence of 40 years in prison.

¶ 15 Defendant filed a motion to reconsider sentence, asserting that his sentence was excessive in view of his background and the nature of his participation in the offense. In court, counsel rested on the motion, which the trial court denied.

¶ 16 On direct appeal, defendant contended that he was not proved guilty beyond a reasonable doubt, the trial court should not have given a jury instruction on accountability, trial counsel was ineffective for failing to offer an instruction on the necessity defense, and the prosecutor made remarks in closing that required reversal. We affirmed. People v. Velasquez, 2014 IL App (1st) 123366-U.

¶ 17 On March 30, 2018, defendant filed a pro se postconviction petition. Citing Miller v. Alabama, 567 U.S. 460 (2012), People v. Harris, 2018 IL 121932, People v. House, 2015 IL App (1st) 110580, and unspecified "leading science" showing that "the human brain is not fully developed [un]til the age 24," defendant asserted that his 40-year sentence for a crime committed when he was "20 years old" constituted a de facto life sentence. He also argued, "Further under the Illinois constitution Article I section 11. Petition de facto life sentence does not allow for him to be placed back into society as the petitioner will be 61 years old upon release from I.D.O.C." As relief, defendant requested that he should be re-sentenced to "the minimum sentence of 20 years." Defendant did not attach any affidavits or other supporting documentation to his petition.

¶ 18 On March 30, 2018, the circuit court advanced the petition to the second stage because, due to a clerical error, the court did not receive the petition until almost a year after defendant mailed it.

¶ 19 Over the next two years, defendant's case was assigned and reassigned to several different attorneys in the public defender's office. On August 7, 2020, an assistant public defender appearing on defendant's behalf indicated he had defendant's records and asked for a continuance. The same counsel then appeared for defendant on several...