Opinion
4-22-1020
07-28-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCO A. HERNANDEZ, Defendant-Appellant.
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 Boone County No. 13CF87 Honorable C. Robert Tobin III, Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Zenoff and Doherty concurred in the judgment.
ORDER
DeARMOND PRESIDING JUSTICE.
¶ 1 Held: The appellate court granted the Office of the State Appellate Defender's motion to withdraw as counsel and affirmed the trial court's judgment, as no issue of arguable merit could be raised on appeal.
¶ 2 In July 2013, the State charged defendant, Marco A. Hernandez, with first degree murder and unlawful possession of a firearm by a street gang member. See 720 ILCS 5/9-1(a)(2), 24-1.8(a)(1) (West 2012). After a trial, the jury found defendant guilty on both counts. On direct appeal, the reviewing court remanded the case for a new trial after finding trial counsel was ineffective. People v. Hernandez, 2017 IL App (2d) 141104-U, ¶¶ 20-33. At the second trial's conclusion, the jury convicted defendant of the charged offenses. The reviewing court affirmed defendant's convictions. People v. Hernandez, 2022 IL App (2d) 200741-U, ¶¶ 33-34. Defendant subsequently filed a postconviction petition, which the trial court summarily dismissed for failing to state the gist of a constitutional claim.
¶ 3 Defendant appeals, arguing the trial court erred in dismissing his postconviction petition. The Office of the State Appellate Defender (OSAD) moved to withdraw as counsel, contending no arguably meritorious issue can be raised on appeal. We grant OSAD's motion to withdraw and affirm the trial court's judgment.
¶ 4 I. BACKGROUND
¶ 5 A complete recitation of the facts is contained in both Hernandez, 2017 IL App (2d) 141104-U, ¶¶ 4-16, and Hernandez, 2022 IL App (2d) 200741-U, ¶¶ 4-19, and they do not bear repeating here except where relevant.
¶ 6 In July 2014, defendant was convicted of first degree murder and unlawful possession of a firearm by a street gang member (720 ILCS 5/9-1(a)(2), 24-1.8(a)(1) (West 2012)), and he was found to have personally discharged the firearm, proximately causing the death of Richard Herman. A codefendant, Deontae Murray, who was separately charged, tried, and convicted, is not involved in this appeal. See People v. Murray, 2019 IL 123289, 155 N.E.3d 412. Thereafter, defendant appealed, and the Second District reversed defendant's conviction and remanded the case due to ineffective assistance of counsel. See Hernandez, 2017 IL App (2d) 141104-U, ¶¶ 18-42.
¶ 7 On retrial in September 2020, defendant was again found guilty and sentenced to 55 years' imprisonment-25 years for first degree murder, an additional 25 years for personally discharging the firearm, and 5 years for the firearm possession. Defendant's conviction was affirmed on direct appeal. See Hernandez, 2022 IL App (2d) 200741-U, ¶ 36.
¶ 8 In September 2022, defendant filed this postconviction petition, alleging ineffective assistance of trial counsel for failing to tender jury instructions on self-defense and second degree murder based on imperfect self-defense. Defendant further alleged the State failed to prove him guilty beyond a reasonable doubt and used perjured testimony, and he received ineffective assistance of appellate counsel for failing to raise these issues on appeal. In October 2022, the trial court entered a written order summarily dismissing defendant's petition at the first stage for "failure to state the gist of a constitutional violation."
¶ 9 This appeal followed. OSAD filed a motion to withdraw based on the directives in People v. Greer, 212 Ill.2d 192, 212, 817 N.E.2d 511, 523 (2004), and People v. White, 2020 IL App (4th) 160793, ¶¶ 41-57, 153 N.E.3d 1084. OSAD contends, after a careful review of the record, no potentially meritorious issues can be raised on appeal. Defendant was properly notified and has filed no response to the motion or any other pleading directed at this appeal. Consistent with its duty, OSAD provided a memorandum of law setting forth a full statement of facts, a list of potential issues on appeal, and reasons why the issues do not merit review. See Greer, 212 Ill.2d at 212 ("[A]n attorney moving to withdraw should make some effort to explain why defendant's claims are frivolous or patently without merit." (Emphasis omitted.)).
¶ 10 II. ANALYSIS
¶ 11 On appeal, OSAD listed two possible categories of issues to be raised on defendant's behalf: (1) whether the trial court complied with procedural requirements in dismissing his postconviction petition; and (2) whether his postconviction claims have any arguable basis in law or fact. Specifically, defendant's postconviction petition argued: (1) trial counsel should have requested instructions on self-defense and second degree murder; (2) the State failed to prove him guilty of either murder or possession of a firearm beyond a reasonable doubt; (3) the State used perjured testimony; and (4) appellate counsel was ineffective for not raising these issues on direct appeal.
¶ 12 OSAD raises an additional issue on defendant's behalf, noting the State arguably should have been barred by double jeopardy from prosecuting defendant a second time for weapons possession by a street gang member, and counsel on direct appeal could be claimed as ineffective for failing to preserve this issue.
¶ 13 A. Postconviction Proceedings
¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) "provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitutions." People v. Morris, 236 Ill.2d 345, 354, 925 N.E.2d 1069, 1075 (2010). "A postconviction proceeding is a collateral attack on a prior conviction that is limited to constitutional matters that were not and could not have been previously adjudicated." Morris, 236 Ill.2d at 354. It is the defendant's burden to show a substantial deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill.2d 79, 83, 885 N.E.2d 1044, 1046 (2008).
¶ 15 The Act establishes a three-stage process for adjudicating a postconviction petition. People v. English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. Here, defendant's petition was dismissed at the first stage. Under the Act, this must be done within 90 days of the petition's filing and docketing. 725 ILCS 5/122-2.1(a) (West 2022). At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2022). This is an independent assessment of the substantive merit of the petition. People v. Harris, 224 Ill.2d 115, 126, 862 N.E.2d 960, 967 (2007). To withstand dismissal at the first stage, the petition need only state the gist of a constitutional claim. People v. Foster, 391 Ill.App.3d 487, 491, 909 N.E.2d 372, 377 (2009). Our supreme court has held "apro se petition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill.2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on "an indisputably meritless legal theory," such as one that is "completely contradicted by the record," or when it is based on a "fanciful factual allegation" that is clearly baseless, fantastic, or delusional. Hodges, 234 Ill.2d at 16-17.
¶ 16 "In considering a petition pursuant to [section 122-2.1 of the Act], the [trial] court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding[,] and any transcripts of such proceeding." 725 ILCS 5/122-2.1 (c) (West 2022). At the first stage of postconviction proceedings, a defendant only needs to present a "limited amount of detail" in his postconviction petition regarding the alleged constitutional violation. People v. Brown, 236 Ill.2d 175, 188, 923 N.E.2d 748, 756 (2010); People v. Gaultney, 174 Ill.2d 410, 418, 675 N.E.2d 102, 106 (1996). However, this does not mean a defendant is excused from providing any factual detail at all. People v. Delton, 227 Ill.2d 247, 254, 882 N.E.2d 516, 520 (2008). Our review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap, 2011 IL App (4th) 100595, ¶ 20, 963 N.E.2d 394. Moreover, we may affirm the trial court's judgment on any basis supported by the record. See People v. Wright, 2013 IL App (4th) 110822, ¶ 32, 987 N.E.2d 1051.
¶ 17 B. Procedural Compliance
¶ 18 Here, defendant filed his postconviction petition on September 21, 2022. The trial court entered its written order summarily dismissing the petition on October 4, 2022, finding, as to each stated claim, "[defendant] has failed to state a gist of a constitutional violation." The court therefore complied with the requirements of section 122-2.1 by entering a written order (a very thorough one at that) within 90 days finding the petition was meritless. See 725 ILCS 5/122-2.1 (West 2022). Because the court complied with the procedural requirements of the Act, we agree with OSAD, and defendant would have no arguable claim regarding noncompliance with the Act.
¶ 19 C. Arguable Claims
¶ 20 1. Self-Defense and Second Degree Murder Instructions
¶ 21 Defendant claims trial counsel was ineffective for failing to request self-defense and second degree murder (imperfect self-defense) instructions. He further alleges appellate counsel provided ineffective assistance by failing to raise this omission on appeal. He contends there was evidence Herman provoked the fight which resulted in his death, there was evidence Herman "lunged" at defendant, and the State's witness, Max Cox, who was with Herman at the gas station, was involved in chasing him days before the offense.
¶ 22 Claims of ineffective assistance of trial counsel are analyzed under the two-pronged performance/prejudice test of Stricklandv. Washington, 466 U.S. 668, 687 (1984). "Under this test, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. "A defendant's failure to establish either prong of the Strickland test precludes a finding of ineffective assistance of counsel." Henderson, 2013 IL 114040, ¶ 11. "Claims of ineffective assistance of appellate counsel are measured against the same standard as those dealing with ineffective assistance of trial counsel." (Internal quotation marks omitted.) People v. Phillips, 2017 IL App (4th) 160557, ¶ 66, 92 N.E.3d 544. "Unless the underlying issue is meritorious, a defendant suffers no prejudice from counsel's failure to raise the issue on appeal." Phillips, 2017 IL App (4th) 160557, ¶ 66.
¶ 23 "The elements of first degree and second degree murder are identical, and it is the presence of statutory mitigating factors that reduces an unlawful homicide from first degree to second degree murder." People v. Thompson, 354 Ill.App.3d 579, 587, 821 N.E.2d 664, 671 (2004). Self-defense consists of six mitigating factors: "(1) force is threatened against a person (2) the person is not the aggressor, (3) the danger of harm was imminent, (4) the threatened force was unlawful, (5) the person actually and subjectively believed a danger existed that required the use of force applied, and (6) the person's beliefs were objectively reasonable." People v. Castellano, 2015 IL App (1st) 133874, ¶ 149, 42 N.E.3d 914.
¶ 24 To instruct the jury on self-defense, the defendant must establish some evidence of each of the above factors. People v. Jeffries, 164 Ill.2d 104, 127-128, 646 N.E.2d 587, 598 (1995). Once the defendant has done so, the State must prove at least one of the six factors was not present. Jeffries, 164 Ill.2d at 128. The State is not required to prove beyond a reasonable doubt the absence of the mitigating factor. Castellano, 2015 IL App (1st) 133874, ¶ 155. If the State succeeds in negating defendant's claim of self-defense, to reduce the offense to second degree murder, the defendant must prove by a preponderance of the evidence the first five self-defense elements were present. Castellano, 2015 IL App (1st) 133874, ¶ 149. In this situation, a defendant is not entitled to a second degree murder instruction if the evidence does not support the giving of a self-defense instruction. People v. Salas, 2011 IL App (1st) 091880, ¶ 83, 961 N.E.2d 831.
¶ 25 After reviewing the record, we conclude the evidence did not support either instruction. Importantly, none of the witnesses testified Herman was the aggressor, and the evidence showed defendant and his codefendant approached Herman at the gas pumps, pulling a firearm on him. Our review of the record also reveals two eyewitnesses saw defendant and codefendant Murray approach the victim and Cox-members of a rival gang-and exchange words, after which the witnesses observed defendant shoot the victim in the chest. Although defendant argued the two eyewitnesses identified codefendant Murray as the shooter, both acknowledged defendant and codefendant Murray were together, arguing with Herman and Cox. Neither witness unequivocally identified codefendant Murray as the shooter, saying instead they saw him with the gun at one point. The evidence further showed codefendant Murray originally had the gun used to kill Herman until defendant either asked for it or took it and advanced toward the victim, shooting him in the chest.
¶ 26 Further, we find an additional basis for dismissing defendant's claim that was not argued by OSAD, and as stated above, we may affirm the dismissal of a postconviction petition on any basis supported by the record. See Wright, 2013 IL App (4th) 110822, ¶ 32. To avail himself of a self-defense instruction, the defendant must first acknowledge having committed the act and then invoke the defense as justification. People v. Lewis, 2015 IL App (1st) 122411, ¶ 60, 28 N.E.3d 923. "[R]aising the issue of self-defense requires as its sine qua non that defendant had admitted the killing." (Internal quotation marks omitted.) Salas, 2011 IL App (1st) 091880, ¶ 84. Defendant never testified at trial. He not only never admitted his involvement in the shooting, but he successfully overturned his first conviction based on the claim he was prejudiced by trial counsel's failure to object to his girlfriend's testimony that he confessed to shooting the victim. See Hernandez, 2017 IL App (2d) 141104-U, ¶¶ 20-33.
¶ 27 At his second trial, defendant again did not testify, and he presented no evidence or argument on the issue of self-defense. He did not file a pretrial answer to discovery asserting self-defense as required by Illinois Supreme Court Rule 413 (eff. July 1, 1982). Instead, on appeal, defendant claimed error only in the denial of his severance motion, the State's evidence regarding the convictions of other gang members, and his mittimus, with no reference to self-defense. Even here, defendant does not claim trial counsel was ineffective for failing to raise or present evidence of self-defense, but only for not arguing it to the jury based on "the State's evidence and testimony" and tendering instructions on it. While the defendant is not required to present any evidence at trial, to argue an affirmative defense of self-defense, and by extension, obtain an instruction thereon, the defendant must make aprima facie case of self-defense. Lewis, 2015 IL App (1st) 122411, ¶ 56.
¶ 28 Although it may be theoretically possible for a defendant to assert self-defense based solely on the State's evidence, "a defendant does not meet his burden to raise the theory of self-defense by combining the State's evidence of the defendant's act with his own testimony that he was in fear of his safety." People v. Cacini, 2015 IL App (1st) 130135, ¶ 45, 45 N.E.3d 738. More importantly, "a defendant cannot construct a theory of self-defense by combining the State's evidence and the defense evidence." People v. Freeman, 149 Ill.App.3d 278, 281, 500 N.E.2d 448, 450 (1986). Here, defendant provides no testimony of justification. Instead, he cobbles together trial testimony from both State and defense witnesses to form conclusions he contends should be drawn. As a result, defendant's failure to rely on self-defense as a defense at trial precludes him from claiming trial counsel's ineffectiveness for failing to argue or tender self-defense instructions to the jury.
¶ 29 In sum, because the evidence did not support an instruction on self-defense, defendant was not entitled to an instruction on second degree murder. See Salas, 2011 IL App (1st) 091880, ¶ 83. When the evidence presented at trial does not support a certain jury instruction, it necessarily follows a defendant cannot be prejudiced by counsel's failure to request such an instruction (see Salas, 2011 IL App (1st) 091880, ¶ 93), and the failure to submit instructions unsupported by the evidence is not error. See People v. Peters, 2018 IL App (2d) 150650, ¶ 81, 99 N.E.3d 489 (finding counsel is not ineffective where no underlying error occurs). Therefore, we agree with OSAD and conclude trial counsel was not ineffective for failing to request instructions on self-defense and second degree murder. As to petitioner's claim against appellate counsel, "[u]nless the underlying issue is meritorious, a defendant suffers no prejudice from counsel's failure to raise the issue on appeal." Phillips, 2017 IL App (4th) 160557, ¶ 66.
¶ 30 2. Reasonable Doubt
¶ 31 Next, defendant contends the State did not prove him guilty of either offense beyond a reasonable doubt. "When reviewing a challenge to the sufficiency of the evidence, our function is not to retry the defendant." People v. Nere, 2018 IL 122566, ¶ 69, 115 N.E.3d 205. Instead, we consider whether, viewing the evidence in the light most favorable to the State," any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) People v. Collins, 106 Ill.2d 237, 261, 478 N.E.2d 267, 277 (1985).
¶ 32 A reviewing court has already found there was sufficient evidence against defendant to warrant a guilty finding. See Hernandez, 2022 IL App (2d) 200741-U, ¶ 33. In his second appeal, the Second District found "there was significant evidence of defendant's guilt" irrespective of the gang crimes evidence to which he objected in his second trial. Hernandez, 2022 IL App (2d) 200741-U, ¶ 32. Arguably, we could stop there. However, because our job includes determining whether any rational trier of fact (not court of review) could find defendant guilty beyond a reasonable doubt, we briefly examine the evidence.
¶ 33 Here, we do not find the evidence "so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt." People v. Lloyd, 2013 IL 113510, ¶ 42, 987 N.E.2d 386. Defendant was identified by two eyewitnesses as the shooter. One defense witness testified that, 5 to 10 seconds after hearing the shot, a black man-not defendant-was holding the gun. The other defense witness, who incorrectly remembered the number of men present, admitted she previously told police "she had difficulty telling if the black man shot the white man." Defendant's former girlfriend said defendant told her the next day he killed Herman with a gun. She admitted she previously said defendant never told her that, but she pointed out they were dating at the time. Also, when police arrived at defendant's residence to arrest him, he jumped out of a side window only partially clothed before being apprehended, thereby evidencing a consciousness of guilt. Sergeant David Dammon of the Belvidere Police Department testified about identifying marks of members of the Latin Kings and identified some of defendant's tattoos as representative of the Latin Kings. He also testified about the pattern of criminal activity in which the Latin Kings engaged, all of which was relevant to the charge of possession of a firearm by a gang member.
¶ 34 We do not disagree with the Second District and, when viewing the evidence in the light most favorable to the State, we find any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. Nere, 2018 IL 122566, ¶ 69. Since defendant fails to raise an arguable claim the State failed to prove him guilty beyond a reasonable doubt, his allegation of ineffective assistance of appellate counsel for failing to raise a nonmeritorious issue fails. See Phillips, 2017 IL App (4th) 160557, ¶ 66.
¶ 35 3. The State 's Reliance on Purportedly Perjured Testimony
¶ 36 Defendant's claim the State relied on the perjured testimony of three State's witnesses meets the same fate. He relies on the inconsistent testimony of his former girlfriend who, during his first trial, denied defendant made any admissions about shooting Herman. However, at the second trial, she said defendant told her he shot Herman when she saw him the next day. Defendant also claims Sergeant Dammon downplayed Cox's gang activity while simultaneously emphasizing defendant's, and Cox misrepresented his involvement in the chase of defendant days before the shooting.
¶ 37 What defendant describes as perjury amounts to his opinions or conclusions from inconsistent, inconvenient, or impeached testimony. "[T]he State's knowing use of perjured testimony to obtain a criminal conviction constitutes a violation of due process of law." People v. Hickey, 204 Ill.2d 585, 604-05, 792 N.E.2d 232, 246 (2001). There is no doubt such a conviction may be subject to reversal. See People v. Lucas, 203 Ill.2d 410, 422, 787 N.E.2d 113, 121 (2002). To obtain a reversal, however, a defendant claiming his conviction was based on perjured testimony "must present clear, factual allegations of perjury and not mere conclusions or opinions." People v. Moore, 2012 IL App (4th) 100939, ¶ 28, 975 N.E.2d 1083. "[Inconsistencies in testimony cannot be equated with perjury, nor does it establish or show that the State knowingly used perjured testimony." (Internal quotation marks omitted.) Moore, 2012 IL App (4th) 100939, ¶ 31.
¶ 38 Although defendant's former girlfriend's testimony was inconsistent with her testimony at the first trial, that does not make it perjury. At the second trial, she was impeached with her previous testimony, and it was a matter of credibility for the jury to determine. Conflicts between a witness's testimony at two different proceedings do not prove a witness's testimony is perjured. See People v. Lagios, 39 Ill.2d 298, 301, 235 N.E.2d 587, 589 (1968). Defendant's former girlfriend acknowledged testifying at the first trial that defendant made no admissions to her but indicated it was because they were dating at the time.
¶ 39 Defendant's complaint regarding the other two witnesses, Sergeant Dammon and Cox, fails to identify which statements were false and how he could establish their falsity. Instead, he quarrels with their testimony as minimizing or exaggerating, based on his interpretation. He presents no "clear, factual allegations of perjury," as opposed to his conclusions or opinions. Moore, 2012 IL App (4th) 100939, ¶ 28.
¶ 40 Since defendant fails to raise an arguable claim of the State's use of known perjured testimony, his allegation of ineffective assistance of appellate counsel for failing to raise a nonmeritorious issue fails as well. See Phillips, 2017 IL App (4th) 160557, ¶ 66.
¶ 41 4. Double Jeopardy
¶ 42 Finally, OSAD considered arguing that double jeopardy precluded the State from retrying defendant for possession of a weapon by a street gang member and that appellate counsel was ineffective for failing to preserve the issue for review on direct appeal. At his first trial, defendant was convicted of possession of a weapon by a street gang member. His codefendant was convicted of the same offense in a separate trial. The State presented the same evidence to establish the Latin Kings were a street gang in both trials. Codefendant Murray's counsel challenged his conviction on appeal, while defendant's counsel did not. In codefendant Murray's case, the Illinois Supreme Court ultimately agreed the State failed to prove the Latin Kings were a street gang as defined in the Illinois Streetgang Terrorism Omnibus Prevention Act (Streetgang Act) (740 ILCS 147/10 (West 2012)), vacated his conviction, and remanded for resentencing for aggravated unlawful use of a weapon. Murray, 2019 IL 123289, ¶ 53.
¶ 43 Defendant's counsel obtained a reversal and new trial, but not on this issue. On retrial, the State was able to present additional evidence to establish the Latin Kings were a street gang within the definition of the Streetgang Act. As OSAD argues, had defendant's counsel successfully raised the same issue on direct appeal, it is arguable the State would not have been able to prosecute him for that offense again on retrial.
¶ 44 However, under section 122-3 of the Act, "any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived." 725 ILCS 5/122-3 (West 2020). The Act makes no provision for the appointment of counsel to review pro se petitions at the first stage, so "[t]he question raised in an appeal from an order dismissing a postconviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act." (Emphasis in original) People v. Jones, 211 Ill.2d 140, 148, 809 N.E.2d 1233, 1239 (2004). This does not leave a defendant without recourse. "A defendant who fails to include an issue in his original or amended postconviction petition, although precluded from raising the issue on appeal from the petition's dismissal, may raise the issue in a successive petition if he can meet the strictures of the 'cause and prejudice test.'" Jones, 211 Ill.2d at 148. As a result, OSAD's double jeopardy issue is not subject to review at this stage.
¶ 45 III. CONCLUSION
¶ 46 For the reasons set forth above, we find there are no arguable claims to be raised on defendant's behalf. OSAD's motion to withdraw is well-taken and should be allowed. The trial court's judgment dismissing defendant's postconviction petition is affirmed.
¶ 47 Affirmed.