Opinion
2-19-1106
02-01-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERTO C. ROMERO, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County. No. 15-CF-12 Honorable Daniel B. Shanes, Judge, Presiding.
JUSTICE BRENNAN delivered the judgment of the court. Justice Zenoff concurred in the judgment. Justice Birkett specially concurring.
ORDER
BRENNAN JUSTICE.
¶ 1 Held: Counsel retained at stage one of postconviction proceedings provided reasonable assistance in preparing defendant's petition alleging that trial counsel was ineffective for not calling certain witnesses to testify in mitigation that defendant's mental illness led him to murder his girlfriend. Because it was not arguable that trial counsel was ineffective in deciding not to call these witnesses, postconviction counsel did not provide unreasonable assistance in failing to include further evidentiary support for the ineffectiveness claim. 1
¶ 2 Defendant, Roberto C. Romero, entered a partially negotiated plea of guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) and was sentenced to 48 years' imprisonment.Although defendant directly appealed, he later dismissed that appeal. Subsequently, with the help of privately-retained counsel, defendant petitioned for postconviction relief. Defendant argued that his trial counsel was ineffective for failing to present testimony at sentencing from his father and stepmother and Dr. Karen Chantry (the psychologist who examined him) about defendant's mental condition at the time of the murder. The trial court summarily dismissed the petition, finding defendant's claims forfeited and patently without merit. Defendant timely appeals. At issue is whether defendant was denied the reasonable assistance of privately-retained counsel at stage one of postconviction proceedings when counsel failed to attach to defendant's petition (1) an affidavit from Dr. Chantry and (2) more detailed affidavits from defendant's father and stepmother. We determine that, because it is not arguable that trial counsel was ineffective for failing to call defendant's father and stepmother and Dr. Chantry to testify at defendant's sentencing hearing about his mental state at the time of the murder, postconviction counsel did not provide unreasonable assistance when she failed to support defendant's petition with appropriate affidavits. Accordingly, we affirm. 2
Defendant pled guilty to one count of first degree murder after the count was amended to remove the allegation that defendant personally discharged a firearm, thus removing the possibility of a 25-year sentencing enhancement pursuant to 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014). The agreement further contemplated a sentencing floor of 30 years, subjecting defendant to a possible sentence between 30 and 60 years. Defendant was originally sentenced to 50 years' imprisonment, which was reduced to 48 years after a hearing on defendant's motion to reconsider the sentence.
¶ 3 I. BACKGROUND
¶ 4 In January 2015, defendant shot and killed his girlfriend, Elpidia Munoz-Garcia, in front of his father and stepmother and Munoz-Garcia's nine-year-old daughter. Defendant was charged with three counts of first-degree murder (id. § 9-1(a)(1), (a)(2)). All three counts as alleged subjected defendant to an add-on sentence of 25 years to life because defendant personally discharged a firearm that proximately caused Munoz-Garcia's death (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)).
¶ 5 During the ensuing two years, defendant and the State attempted to negotiate a resolution to the case. The parties repeatedly discussed defendant's mental health and what role it played in defendant killing Munoz-Garcia. Defendant argued that it had played a role in the killing and that he should be allowed to plead guilty but mentally ill. In support, he relied on an evaluation conducted by Dr. Chantry, who concluded that defendant suffered from schizophrenia and alcohol and cocaine addiction. The State took issue with Dr. Chantry's diagnosis, claiming that she made numerous assumptions and relied on inappropriate information in formulating her opinion. Because the State rejected Dr. Chantry's report, the defense retained another expert, Dr. Robert Hanl on, to examine defendant. Defendant never sought to admit Dr. Hanl on's report, because defendant was dissatisfied with his conclusions.
¶ 6 Two and a half years after the murder, defendant entered a partially-negotiated plea of guilty. Specifically, defendant agreed to plead guilty to first-degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) in exchange for a sentence between 30 and 60 years and the elimination of the 25-year to life add-on sentence (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)). Before accepting the plea, the trial court asked defense counsel if he had any doubt about defendant's fitness to plead guilty. Defense counsel assured the court that there was no such doubt and that counsel could not 3 in good faith raise an insanity defense on defendant's behalf. The court accepted the guilty plea as knowingly and voluntarily entered.
¶ 7 No oral testimony was presented at the sentencing hearing. Evidence submitted to the court included victim impact statements from Munoz-Garcia's family; a joint letter from defendant's father and stepmother; letters from other family members and friends attesting to defendant's good character; Dr. Chantry's report, which was attached to the presentence investigation report (PSI); and defendant's statement in allocution.
¶ 8 In the PSI, the probation officer reported that defendant provided the following account. He and Munoz-Garcia started dating around July 2014. Four months later, defendant moved in with Munoz-Garcia and her two children. He also began working at the bar she owned. Defendant indicated that Munoz-Garcia was jealous and that this caused them to argue frequently. Defendant repeatedly told the probation officer that he loved Munoz-Garcia but did not want to be in a relationship with her.
¶ 9 One month before Munoz-Garcia was killed, defendant tried to end their relationship. Munoz-Garcia begged defendant not to leave her and threatened to kill him if he did. A few weeks before Munoz-Garcia was killed, defendant went to Munoz-Garcia's house to retrieve her kids after she kicked them out. When he arrived, defendant saw Munoz-Garcia outside with a gun. In the days that followed, defendant took his father's gun for protection against Munoz-Garcia.
¶ 10 On the day Munoz-Garcia was killed, defendant was asked to work at the bar. While there, he and Munoz-Garcia consumed alcohol and cocaine all day. Munoz-Garcia texted defendant's father, who arrived later with defendant's stepmother. Defendant's father asked where the gun was. Defendant replied that it was in his car. Defendant's father went to retrieve the gun from defendant's car but could not find the gun. Meanwhile, defendant and Munoz-Garcia began 4 arguing in the bar about defendant's father failing to greet Munoz-Garcia earlier. Munoz-Garcia pushed defendant in the chest, and defendant fired the gun. The bullet hit Munoz-Garcia, and she fell to the floor. Defendant ran to her, holding her in his arms. Defendant left the bar, leading the police on a chase before surrendering.
¶ 11 When asked about his use of drugs and alcohol, defendant related that he was drinking daily to the point of intoxication when he was dating Munoz-Garcia," 'because it was the only way to deal with her.'" Defendant was also using cocaine daily in the months leading up to the murder. Concerning his emotional health, defendant told the probation officer that he "has always heard voices, seen shadows and felt like he was being followed." These voices "never told him to do things, to harm himself or harm anyone else." Three of defendant's cousins in Mexico exhibited similar symptoms and had been diagnosed with schizophrenia. Defendant never talked to anyone about the voices when he was younger, as he did not know that hearing voices was abnormal. After Dr. Chantry diagnosed defendant with schizophrenia, he did not see the jail psychiatrist or speak with social workers, as he did not want to talk to others about his condition. He also did not take any medication. Although he was not opposed to taking medication if needed, he was not sure it would help him. Elsewhere in the PSI, the probation officer noted that defendant "denied a history of *** mental health issues [or] substance abuse."
¶ 12 Defendant's father and stepmother told the probation officer that they had noticed a change in defendant's behavior in the months leading up to the murder. They suspected that defendant was abusing drugs and alcohol, but defendant and his friends assured them he was not. During this time, defendant told his father that he wanted to kill himself and told his ex-girlfriend that he was afraid someone was trying to murder him. Once defendant moved in with Munoz-Garcia, his behavior deteriorated quickly. He became more paranoid. During the last month before the 5 murder, he stayed with his father and stepmother more often. Defendant's father offered to move defendant to Texas or California, where the family had friends; defendant refused, as he was afraid that something would happen to his father and stepmother if he moved away. After defendant shot Munoz-Garcia in front of his father and stepmother, his father retrieved the gun. Defendant attempted to get the gun back, as he wanted to kill himself. When his father refused to hand over the gun, defendant asked his father to shoot him.
¶ 13 Dr. Chantry's report was attached to defendant's PSI. Dr. Chantry diagnosed defendant with (1) schizophrenia with delusions and paranoid ideation; (2) severe alcohol use disorder; and (3) severe cocaine use disorder. Defendant reported to her that he thought he heard Santa Muerte, the goddess of death, when he began dating Munoz-Garcia. This upset him. He believed that Munoz-Garcia and her daughter would put a spell on him and that he had to get away from them. Defendant told Dr. Chantry that he obtained his father's gun because he feared that Munoz-Garcia would use Santa Muerte rituals to harm him. Defendant told Dr. Chantry that he" 'blanked out'" after Munoz-Garcia pushed him, right before she was shot. Dr. Chantry noted that, according to police reports, defendant wanted to leave after the bar closed, but Munoz-Garcia did not, as some men were coming to meet her there. This upset defendant.
¶ 14 In the joint letter from defendant's father and stepmother, they indicated that defendant began having nightmares when he started dating Munoz-Garcia. When defendant moved in with Munoz-Garcia, he became depressed. Two months before the murder, defendant damaged his car. Although he could not explain how that damage occurred, his father and stepmother "[thought defendant] heard or saw something." The month before the murder, defendant's ex-girlfriend told defendant's father and stepmother to look after defendant because he had "called her and told her[, ] whispering[, ] that he was hidden in the restroom because his enemies were outside the house trying 6 to get in (paranoid)." Because defendant's father and stepmother thought someone was after defendant, they tried to get defendant to relocate to Texas or California, but he refused. "At [that] time, [defendant's father and stepmother] did not know anything about schizophrenia, the symptoms[, ] and of course [they] did not know that [defendant] had it[, ] including the immediate family and friends here and in Mexico, until he was diagnosed in jail." Defendant's father and stepmother asked the trial court for leniency because defendant had a minimal criminal history and had "a[n] illness that control[ed] his mind."
¶ 15 In allocution, defendant apologized for killing Munoz-Garcia and claimed that the murder was "unintentional." He "never meant to do that." He was "try[ing] to make no excuses for what [he] did." He had made "a mistake." He claimed: "that day [he] wasn't the person that [he] usually [is]." Defendant also stated that he "[did not] know what happened" and "[did not know] why [he] did that."
¶ 16 In sentencing defendant, the trial court recognized that it was required to consider whether defendant suffered from a serious mental illness at the time of the murder. See 730 ILCS 5/5-5-3.1(a)(16) (West 2016). The court said:
"The Court has also considered the evidence of various mental health challenges that [defendant has] been facing and dealing with, challenges that sadly many, many members of our community face on a daily basis with varying degrees of success[, ] which brings me to the first part. What happened here. What happened here was one of the worst things that can occur in a civilized society. The crimes [sic] to which [defendant] pleaded guilty involves [his] senseless execution of another person. And that alone would have completed the offense. Had it been just [defendant and the victim] in that room, it would have been a murder.7
The Court also is charged with considering the circumstances involved. And the circumstances are troubling. In front of a nine-year-old girl, [defendant] gunned down her mother, shooting her in the head."
¶ 17 The court sentenced defendant to 50 years' imprisonment. Later, defendant filed timely motions to withdraw his guilty plea and reconsider his sentence. At the hearing on those motions, the court observed:
"To the Court, it seems that perhaps partially some of the Defendant's issues played a part in it, and equally so did the use of intoxicants[, ] using the term generally. The Defendant came into the bar, was there, and for reasons perhaps that in the end only he will truly know, even if he doesn't fully understand, he put a gun to a woman's head and shot her.
There is no mistake in the intent, there is no questioning whether it was an accident, there is no issue as to provocation [defense counsel] alluded to. It was a killing for the sake of killing clouded by his mental condition. And as the Court noted at sentencing right in front of the victim's daughter, it was simply horrible all around.
The law in Illinois provides a severe penalty for first degree murder. Some people end up spending the rest of their life in prison for it in less than ideal condition[s]. It was the Court's intent having regarding [sic] to the nature and circumstances of what happened as well as [defendant's] condition that he spend a good chunk [of] the rest of his life in prison for it[.]" The trial court denied defendant's motion to withdraw his plea but reduced defendant's sentence to 48 years' imprisonment. Defendant timely appealed on September 11, 2019, but later moved 8 to dismiss the appeal through retained counsel. The appellate court granted the motion and dismissed the appeal.
¶ 18 Defendant's privately-retained counsel then filed a petition for postconviction relief on September 11, 2019, seeking a reversal of his conviction or a new sentencing hearing. Defendant argued that his right to the effective assistance of counsel was violated when trial counsel failed to call (1) witnesses, including defendant's father and stepmother, to testify about defendant's mental state at the time of the murder, and (2) Dr. Chantry to explain defendant's mental illness and whether defendant could control his actions, emotions, or perceptions of the situation that led to the murder.
¶ 19 Attached to the petition were the affidavits of defendant's father and stepmother, which were virtually identical to each other. They attested that they (1) were not asked to testify at defendant's sentencing hearing; (2) have known defendant for most or all his life; (3) have personal knowledge of defendant's medical and psychological issues; and (4) could competently testify about the events leading up to the murder, including detailing some of the actions that were uncharacteristic of defendant.
¶ 20 Also attached to the petition was a certificate by postconviction counsel pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Counsel certified that she had consulted defendant by phone; "examined the record of the proceedings of the plea of guilty" and "made any amendments to the petition filed pro se that are necessary for an adequate presentation of defendant's contentions." (Emphasis in original.)
¶ 21 Citing People v. Veach, 2017 IL 120649, the trial court initially noted that defendant's claims were "apparent on the record, should have been brought on direct appeal and [are] therefore procedurally defaulted." Id. ¶ 46 ("defendants are required to raise ineffective assistance of counsel 9 claims on direct review if apparent on the record"). Reaching the merits, the trial court further found that the claims were frivolous and patently without merit. In support, the court noted that trial counsel's decision not to call witnesses at the sentencing hearing was strategic in that it ensured that no damaging evidence was elicited on cross-examination. The court further found that no affidavit or other documentation from Dr. Chantry was attached to the petition, which demonstrated to the court that her testimony would have been cumulative to her psychological evaluation that had been attached to defendant's presentence investigation report. Moreover, the court found that the affidavits from defendant's father and stepmother were conclusory and would not have added anything to the court's sentencing analysis. Concerning prejudice, the court determined that testimony from Dr. Chantry and defendant's father and stepmother "would not have so offset the evidence of Defendant's violent acts toward [Munoz-Garcia]-to which [defendant] admitted in his guilty plea-that the results of these proceedings would have been different."
¶ 22 This timely appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Defendant's sole contention on appeal is that his postconviction counsel provided unreasonable assistance in preparing the claim that trial counsel was ineffective. Accordingly, defendant asks that we reverse the dismissal of his petition and remand for appointment of new postconviction counsel.
¶ 25 In addressing this question, we first consider the trial court's determination that defendant's ineffective assistance claim was forfeited because defendant could have raised the claim on direct appeal. Although our supreme court has limited the scope of postconviction proceedings to constitutional matters that were not, and could not have been, raised on direct appeal (see Veach, 10 2017 IL 120649, ¶ 46; People v. Whitfield, 217 Ill.2d 177, 183 (2005)), it has also arguably held that where defendants do not file direct appeals, they do not forfeit postconviction claims that could have been raised in an appeal (see People v. Flowers, 208 Ill.2d 291, 301-02 (2003) ("The requirements of Rule 604(d) are inapplicable to postconviction proceedings." (citing People v. Miranda, 329 Ill.App.3d 837, 841 (2002)))). While our appellate district reached a different conclusion in People v. Vilces, 321 Ill.App.3d 937, 941-42 (2d Dist. 2001), this decision predates Flowers. Given the unique procedural posture of this case, which asks whether privately-retained postconviction counsel rendered unreasonable assistance at the first stage, and not whether the trial court erred in dismissing the postconviction petition on the merits, we address defendant's unreasonableness assistance claim without deciding the applicability of Vilces. ¶ 26 Turning to defendant's claim on appeal, we begin by summarizing the relevant principles governing proceedings under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). Our supreme court has stated:
"The Act [citation] provides a remedy for incarcerated defendants who have suffered a substantial violation of their constitutional rights at trial. Under the Act, a postconviction proceeding contains three stages. At the first stage, the [trial] court must independently review the postconviction petition, without input from the State, and determine whether it is 'frivolous or is patently without merit.' [Citation.] If the court makes this determination, the court must dismiss the petition in a written order. [Citation.] If the petition is not dismissed, the proceedings move to the second stage. [Citation.]
At the second stage, counsel is appointed to represent the defendant, if he is indigent [citation], and the State is permitted to file responsive pleadings [citation]. The [trial] court must determine at this stage whether the petition and any accompanying documentation11
make a substantial showing of a constitutional violation. [Citation.] If no such showing is made, the petition is dismissed. If, however, the petition sets forth a substantial showing of a constitutional violation, it is advanced to the third stage, where the [trial] court conducts an evidentiary hearing [citation]." People v. Johnson, 2018 IL 122227, ¶¶ 14-15.
¶ 27 Here, defendant's petition was dismissed at stage one of the proceedings. A petition will be dismissed at stage one as frivolous or patently without merit if the petition has no arguable basis in either law or fact, i.e., it "is based on an indisputably meritless legal theory or a fanciful factual allegation." People v. Hodges, 234 Ill.2d 1, 12, 16 (2009).
¶ 28 Section 122-2 of the Act (725 ILCS 5/122-2 (West 2018)) governs the form of postconviction petitions. That section provides that a petition shall "clearly set forth the respects in which [the defendant's] constitutional rights were violated" and "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." Id. An unexplained failure to provide such support is grounds for summary dismissal of the petition. People v. Collins, 202 Ill.2d 59, 66 (2002).
¶ 29 At stage one of the proceedings, an indigent defendant has no right to appointed counsel. Johnson, 2018 IL 122227, ¶ 19. The right to appointed counsel is triggered once the petition advances to stage two. Id. ¶ 15. Although an indigent defendant is not entitled to appointed counsel at stage one, defendants at stage one may retain private counsel. The Act does not explicitly provide for any particular level of assistance, but our supreme court has held that counsel at stages two and three, whether appointed or privately retained, must provide the defendant with a reasonable level of assistance. Id. ¶ 16. As with counsel representing a defendant at stages two and three of the proceedings, private postconviction counsel retained during stage one must provide reasonable assistance. Id. ¶ 23. 12
¶ 30 Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) standardizes what constitutes reasonable assistance by attorneys representing defendants at the second and third stages of postconviction proceedings. People v. Zareski, 2017 IL App (1st) 150836, ¶ 51. It provides that, when a defendant appeals from an adverse decision in a postconviction petition, the record filed in the appellate court:
"shall contain a showing, which may be made by the certificate of [the defendant's] attorney, that the attorney has consulted with [the defendant] by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of [the defendant's] contentions." Ill. S.Ct. R. 651(c) (eff. July 1, 2017).
When the record demonstrates that counsel did not comply with Rule 651(c), the trial court's decision will be automatically reversed and the cause remanded for compliance with the rule. People v. Suarez, 224 Ill.2d 37, 51-52 (2007). The defendant need not show prejudice from counsel's failure to comply with Rule 651(c). Id.
¶ 31 Here, on its face, postconviction counsel's Rule 651(c) certificate is problematic. In it, counsel certified that she, among other things, reviewed the guilty plea proceedings and made amendments to the pro se postconviction petition that defendant filed. There are two blatant problems with the certificate. First, defendant takes issue with what happened at the sentencing hearing, not the guilty plea proceedings. Second, defendant never filed a pro se motion, so there was nothing to amend. Based upon this noncompliance with Rule 651(c), defendant urges that we automatically reverse and remand the cause for compliance with the rule. See id. 13
¶ 32 Rule 651(c), however, applies only when a pro se petition has been filed and counsel is later appointed or retained in the second stage. People v. Cotto, 2016 IL 119006, ¶¶ 31, 41. Here, retained counsel filed the original petition, so Rule 651(c) does not apply. Counsel's performance, therefore, is governed not by Rule 651(c), but by the general standard of reasonable assistance. Zareski, 2017 IL App (1st) 150836, ¶¶ 59-60. To obtain relief for a violation of that standard, a defendant must establish prejudice. Id. We review de novo whether retained postconviction counsel provided unreasonable assistance. See Suarez, 224 Ill.2d at 41-42.
¶ 33 With these principles in mind, we turn to defendant's arguments. Defendant alleged in his petition that his trial counsel was ineffective for "[n]ot presenting live testimony and instead relying on letters and reports written by [defendant's father and stepmother and Dr. Chantry]." Defendant argues that postconviction counsel rendered unreasonable assistance when she failed to properly support defendant's claim that these decisions by trial counsel were ineffective. Specifically, defendant notes that "[n]o affidavit from [Dr.] Chantry was attached to the petition, nor was there an explanation for why an affidavit was not attached." Rather, "the petition simply alleged that [Dr.] Chantry could have explained whether [defendant], given his mental illness, could have controlled his actions and emotions that led to the incident." Regarding defendant's father's and stepmother's affidavits, defendant contends that they "were wholly inadequate to sustain [defendant's] claim of ineffective assistance of counsel, and therefore represent unreasonable assistance by [retained] post-conviction counsel."
¶ 34 As defendant observes, a claim that trial counsel was ineffective for failing to present mitigation evidence at sentencing is a constitutional claim cognizable under the Act (see People v. Prier, 245 Ill.App.3d 1037, 1040 (1993)). To state an adequate claim at stage one that trial counsel was ineffective, a defendant must establish that it is arguable that (1) counsel's 14 performance fell below an objective standard of reasonableness (deficient-performance prong) and (2) counsel's deficient performance prejudiced defendant (prejudice prong). Hodges, 234 Ill.2d at 17. A defendant must satisfy both prongs of the test to succeed on a claim that trial counsel was ineffective. People v. Petrenko, 237 Ill.2d 490, 496-97 (2010).
¶ 35 To satisfy the deficient-performance prong, "[t]he defendant must overcome a 'strong presumption' that his counsel's conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy." People v. Smith, 326 Ill.App.3d 831, 841 (2001). Decisions about what evidence to present on defendant's behalf at sentencing, including which mitigation witnesses to call, ultimately rest with trial counsel. See People v. Henderson, 171 Ill.2d 124, 149 (1996). "An informed decision not to present certain mitigating evidence may represent a valid strategic choice, particularly where the evidence is potentially damaging." People v. Coleman, 168 Ill.2d 509, 535 (1995). Under the prejudice prong, a defendant must establish that it is arguable that the outcome of the sentencing hearing would have been different, i.e., he would have received a lower sentence, if the mitigation evidence at issue had been presented. See People v. Payne, 336 Ill.App.3d 154, 172 (2002).
¶ 36 Defendant has not shown that it is arguable that trial counsel was ineffective for not presenting further evidence on the role of defendant's mental illness in the murder of Munoz-Garcia. Mental illness is not inherently mitigating for sentencing purposes. While it may be mitigating, mental illness can also be an aggravating factor where it suggests a defendant's continued dangerousness. See People v. Evans, 186 Ill.2d 83, 102 (1999) ("Proof of [the] defendant's mental handicaps not only could evoke compassion from the trial judge, but also could have demonstrated [the] defendant's continued dangerousness."); People v. Franklin, 167 Ill.2d 1, 27 (1995) (while evidence of the defendant's mental illness "could have evoked compassion in 15 the jurors, it could have also demonstrated defendant's potential for future dangerousness and the basis for defendant's past criminal acts"; such evidence "may also have shown that defendant was less deterrable or that society needed to be protected from him"). In relying on Dr. Chantry's observations and conclusions as set forth in her psychological evaluation attached to the presentence investigation report, defendant was able to argue the mitigating aspects of her analysis without subjecting her to cross-examination eliciting damaging evidence. This was particularly advantageous in light of the State's previously expressed disagreement with Dr. Chantry's evaluation, which had prompted the defense to seek out an additional evaluation it ultimately did not share with the State.
¶ 37 Indeed, it is difficult to ascertain how Dr. Chantry's testimony could have added anything to the mitigation evidence presented at defendant's sentencing hearing. The court had Dr. Chantry's report, wherein she detailed, among other things, defendant's fear of Munoz-Garcia, his auditory hallucinations, and his psychotic thinking. Her testimony about defendant's mental illness would have been cumulative to her report. The failure to present such cumulative evidence cannot support a claim that trial counsel was ineffective. See People v. Jackson, 205 Ill.2d 247, 265 (2001) (cumulative evidence that members of the defendant's family suffered from schizophrenia would not have changed the outcome of the defendant's sentencing hearing); People v. Griffin, 178 Ill.2d 65, 88 (1997) (counsel not ineffective for failing to present, among other things, the defendant's mental health records and psychological evaluation, where PSI contained details of the defendant's mental health); People v. Brisbon, 164 Ill.2d 236, 248 (1995) (counsel not ineffective for failing to present cumulative mitigating evidence at sentencing).
¶ 38 Next, as the State observes, it is pure speculation to conclude that defendant's father and stepmother could have provided favorable mitigation evidence. See People v. Orange, 121 Ill.2d 364, 390 (1988) 16 (counsel was not ineffective for failing to elicit evidence from the defendant's mother concerning her good relationship with the defendant, because "[i]t [was] not apparent from the record *** what favorable information or impressions she could have provided"). Nothing indicated that defendant's father and stepmother could have provided evidence concerning how defendant's schizophrenia affected defendant when he killed Munoz-Garcia. In the statements they made to the probation officer who prepared the PSI and the letter they prepared for defendant's sentencing hearing, they intimated that they thought depression and/or alcohol and drugs were to blame for defendant's behavioral changes. They also asserted that they only learned that defendant suffered from schizophrenia after Munoz-Garcia was killed. They did recall some instances of apparently paranoid behavior by defendant, but their testimony on this topic would have been cumulative to the PSI and their letter. See Griffin, 178 Ill.2d at 88 ("[T]he testimony from defendant's family members would have gone essentially to defendant's troubled, disadvantaged childhood. This information was already presented through the presentence investigation report. The proffered additional testimony would have been cumulative and, further, not inherently mitigating.").
¶ 39 Also, much like with Dr. Chantry, trial counsel's failure to have defendant's father and stepmother testify at the sentencing hearing was not deficient because counsel had a strategic reason for not doing so. Defendant's father and stepmother witnessed defendant shoot Munoz-Garcia in front of her young daughter and then flee from the police. Trial counsel may well have decided not to have them testify at the sentencing hearing, where the State could have cross-examined them about the senseless and gruesome details of the shooting, in addition to how defendant led the police on a chase after the murder rather than surrender to the authorities. See People v. Hernandez, 2014 IL App (2d) 131082, ¶ 35 (trial counsel not ineffective for making 17 strategic decision to present letters from the defendant's family rather than live testimony). The joint letter by defendant's father and stepmother to the court, as well as their statements to the presentence report investigator, allowed defendant to focus the court's attention on certain mitigation evidence, without subjecting them to a cross-examination whereby the State could rehash the aggravating evidence they both observed.
¶ 40 Given the considerable amount of evidence suggesting that defendant's mental illness was not a predominant catalyst for the murder, we cannot conclude it is arguable that trial counsel's failure to call Dr. Chantry and defendant's father and stepmother would have changed the outcome. Specifically, the evidence revealed that jealously caused tension in defendant's and Munoz-Garcia's relationship. The evidence indicated that Munoz-Garcia was jealous of defendant spending time away from her and that defendant, too, was upset when Munoz-Garcia wanted to spend time with other men and not defendant alone. The evidence also showed that, when Munoz-Garcia was killed, she and defendant had been drinking alcohol and consuming cocaine all day. Defendant, who was diagnosed with severe alcohol and cocaine dependence, admitted that he drank to intoxication because that was the only way he could cope with Munoz-Garcia. Other evidence established that the couple's relationship was toxic. Although defendant indicated that he loved Munoz-Garcia, he also tried to end their relationship. When he made these attempts, Munoz-Garcia threatened to kill him at least twice. Defendant took these threats seriously, choosing to arm himself with his father's gun when he had to go to work at Munoz-Garcia's bar and interact with her. In allocution, defendant never explicitly attributed Munoz-Garcia's death to his mental illness. Although he claimed that the shooting was uncharacteristic of him, he also indicated that he had no excuse for her murder and had made a mistake. 18
¶ 41 Notably, though the trial court acknowledged the mitigating aspects of defendant's mental illness, especially in light of section 5-5-3.1(a)(16) of the Unified Code of Corrections (730 ILCS 5/5-5-3.1(a)(16) (West 2016)), the court ultimately found that the circumstances of the murder warranted a harsh sentence. Nor was this unreasonable given defendant's equivocation (at best) and complete denial (at worst) about whether he even suffered from a mental illness.
¶ 42 Our determination that trial counsel was not ineffective for failing to call defendant's father and stepmother and Dr. Chantry to testify at defendant's sentencing hearing is fatal to defendant's claim that postconviction counsel provided unreasonable assistance. See People v. Wallace, 201 Ill.App.3d 943, 947, 951-52 (1990) (in sexual assault case, the defendant's petition would not have survived second-stage dismissal if postconviction counsel had attached to the defendant's petition (1) scientific evidence indicating that the defendant and the victim's husband shared the same blood type, and thus semen found on the victim's bikini bottom could have come from the victim's husband, and (2) details about the defendant's negotiation with the State about dropping the charges if the defendant passed and the victim failed a polygraph test, as the underlying claims lacked merit). Postconviction counsel did not render unreasonable assistance when she did not attach to defendant's petition an affidavit from Dr. Chantry and more detailed affidavits from defendant's father and stepmother as to the testimony they would have given at the sentencing hearing.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 45 Affirmed.
¶ 46 JUSTICE BIRKETT, specially concurring:
¶ 47 I write separately because I disagree with the majority's decision to address the merits of 19 defendant's claim. Defendant requests that we reverse the summary dismissal of his postconviction petition and "remand for second-stage proceedings with directions to appoint new post-conviction counsel with leave to amend and add supporting evidence in support of Romero's claim." Defendant's ultimate goal is to receive a lower sentence. Defendant waived any challenge to the length of his sentence when he entered a voluntary guilty plea pursuant to an agreement with the State for a sentence between 30 to 60 years. "It is well established that a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including constitutional ones." People v. Townsell, 209 Ill.2d 543, 545 (2004) (citing People v. Peeples, 155 Ill.2d 422, 491 (2004)). "By agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in effect, agreeing not to challenge any sentence imposed below that cap on the grounds that it is excessive." People v. Linder, 186 Ill.2d 67, 74 (1999) (citing People v. Catron, 285 Ill.App.3d 36, 37 (1996)). In People v. Lumzy, 191 Ill.2d 182, 186-87 (2000), our supreme court reaffirmed its holding in Linder, which held that "it would be fundamentally unfair to unilaterally modify their sides of the plea bargain while simultaneously holding the State to its side of the bargain." Here, the State agreed to eliminate the mandatory 25 years to life firearm enhancement. Instead of facing 45 years to life in prison, defendant faced 30 to 60 years.
¶ 48 Illinois Supreme Court Rule 604(d) provides that "[u]pon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." In People v. Stewart, 123 Ill.2d 368, 374 (1988), our supreme court held that the waiver rule in Rule 604(d) "applies to post-conviction proceedings as well as to appeals." (citing People v. Ward, 48 Ill.2d 117, 120-21 (1971)). The court noted that the rule "specifically allows for introduction of extra record facts by affidavit." Id. at 373. For decades, the guilty-plea waiver rule has been applied in postconviction cases where no direct 20 appeal was taken. See People v. Williams, 52 Ill.2d 466 (1972); People v. Brown, 41 Ill.2d 503 (1969); People v. Page, 38 Ill.2d 611 (1967); People v. Dennis, 34 Ill.2d 220 (1966); People v. Smith, 23 Ill.2d 512, 514 (1962). As the majority notes, our court has applied the guilty plea waiver rule to postconviction claims where no direct appeal was taken. People v. Vilces, 321 Ill.App.3d 937, 940 (2001); see People v. Walker, 2012 IL App (2d) 110889-U, ¶¶ 20-22.
¶ 49 Our supreme court recently applied the guilty-plea waiver rule in a postconviction case. In People v. Jones, 2021 IL 126432, ¶ 3, the 16-year-old defendant was charged with a double murder of an elderly couple during the commission of the offenses of home invasion, residential burglary, and armed robbery. Jones decided to abandon a potential insanity defense and accept the State's offer of 50 years on one count of first-degree murder and concurrent sentences on the armed robberies and residential burglary. Id. ¶ 4. Jones "did not timely seek to withdraw his guilty plea or appeal that judgment." Id. ¶ 6. He did later file a postconviction petition, which was dismissed by the trial court and affirmed on appeal. Id. Years later, Jones sought leave to file a successive postconviction petition. Id. ¶ 7. Jones argued that his 50-year sentence was unconstitutional. Id. ¶ 6. The trial court denied Jones' motion for leave to file the successive petition. Id. The appellate court affirmed, holding that the sentence was not mandatory, because Jones agreed to it and it was not a life sentence because Jones could be released at age 66. Id. ¶ 8. Our supreme court issued a supervisory order directing the appellate court to vacate its judgment and consider the defendant's contentions in light of People v. Buffer, 2019 IL 122327. Id. ¶ 9. The appellate court again affirmed the trial court's dismissal, holding that the defendant "effectively" waived any eighth amendment claim by entering a fully negotiated plea. Id. ¶ 10. See People v. Jones, 2020 IL App (3d) 140573-U, ¶ 14 ("[W]e hold that defendant failed to establish prejudice because he waived any constitutional challenge to his sentence by fully negotiating his plea." (Emphasis added.)). Our 21 supreme court affirmed, holding that, "[b]y entering a plea agreement, a defendant 'forecloses any claim of error. "It is well established that a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including constitutional ones." '" Jones, 2021 IL 126432, ¶ 20 (quoting People v. Sophanavong, 2020 IL 124337, ¶ 33 (quoting People v. Townsell, 209 Ill.2d 543, 545 (2004))). The court added that "plea agreements are contracts, and principles of waiver apply equally to them." Id. ¶ 21 (citing People v. Absher, 242 Ill.2d 77, 87 (2011)).
¶ 50 There are exceptions to the guilty plea waiver rule as applied to postconviction claims. The rule does not apply to claims of actual innocence. See People v. Reed, 2020 IL 124940, ¶¶ 41-42.The waiver rule does not apply where a defendant claims that his or her guilty plea was involuntary because plea counsel provided deficient advice. See Townsell, 209 Ill.2d at 545; People v. Smith, 383 Ill.App.3d 1078, 1085 (2008). The rule has been relaxed where the interests of "fundamental fairness necessitate our review." People v. Miranda, 329 Ill.App.3d 837, 843 (2002). The waiver rule does not apply where "the plea itself was involuntary because of faulty admonishments." People v. Stroud, 208 Ill.2d 398, 403 (2004). None of these recognized exceptions apply to this case. We should honor the waiver.
The court said that the new, higher standard for actual innocence claims for defendants who plead guilty "strikes an equitable balance between the defendant's constitutional liberty interests in remaining free of undeserved punishment and the State's interests in maintaining the finality and certainty of plea agreements, while vindicating the purpose of the criminal justice system to punish only the guilty." Id. ¶ 50.
¶ 51 The facts of this case are unique. Defendant did file a motion to withdraw his plea and a motion to reconsider sentence. The State suggested that because the guilty plea was partially 22 negotiated, a motion to reconsider the sentence should not be heard "without doing a motion to withdraw the plea of guilty." Defense counsel responded, "I cannot appeal the *** sentence without making a motion to withdraw the plea, but the [c]ourt is always free to reconsider its sentence if it is timely filed and this was." The State did not object to allowing defendant to proceed on his motion to reconsider sentence. As the majority notes, the trial court reduced defendant's sentence to 48 years. Defendant filed a notice of appeal and the Office of the State Appellate Defender (OSAD) was appointed to represent defendant.
¶ 52 On April 30, 2019, counsel from OSAD filed a motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On May 15, 2019, private counsel filed a "Motion for Leave to Voluntarily Withdraw Appeal," stating that, "[a]fter reviewing the facts and applicable law, [she has] concluded that an appeal in this case would be frivolous." Counsel stated that she had informed defendant of her findings, and that he "ha[d] directed counsel to move forward in another direction." On September 11, 2019, this court granted defendant's motion to dismiss his appeal.
¶ 53 It is obvious from the trial court record that plea counsel did not present live testimony at defendant's sentencing hearing. Yet, in this appeal, defendant's attorney, again from OSAD, states that "[postconviction] counsel correctly identified trial counsel's failure to present sufficient evidence in mitigation as a cognizable claim of ineffective assistance of counsel." ¶ 54 Defendant does not dispute that the underlying claim of ineffective assistance of plea counsel was apparent in the trial record. In his reply brief, defendant argues that "the trial court erred in finding that [his] claim was defaulted because it was not raised on direct appeal." Defendant argues that not taking a direct appeal and instead pursuing an "ineffective assistance claim in a [postconviction] petition" is a "valid legal strategy" that courts have "repeatedly 23 acknowledged." Defendant cites People v. Tate, 2012 IL 112214, ¶ 14 (quoting People v. West, 187 Ill.2d 418, 427 (1999)), for the proposition that "this court has 'repeatedly noted that default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense.'" Both Tate and West involved challenges to convictions resulting from trials, not guilty pleas. In Tate, the defendant claimed that trial counsel was ineffective for failure to call four witnesses, none of whom testified at trial. The Court stated that "the contents of their affidavits could not have been included in the record. In this situation, forfeiture does not preclude Tate's claims that counsel was ineffective for failing to call these witnesses, even though they were not included in Tate's posttrial motion." Tate, 2012 IL 112214, ¶ 15. Defendant also cites People v. Shelton for the proposition that "[m]ost often, a postconviction proceeding is the more appropriate mechanism for challenging the effectiveness of trial counsel." 2020 IL App (2d) 170453, ¶ 13. Like Tate and West, the challenged conviction in Shelton resulted from a trial, and this court addressed defendant's claim because "there were sufficient record facts to resolve defendant's ineffectiveness claim." Id. ¶¶ 13, 14.
¶ 55 The State argues in its brief that the trial court correctly found that defendant's underlying claim-that his trial attorney provided ineffective assistance by failing to call his witnesses-was procedurally defaulted because the issue appeared on the record and was not raised on direct appeal, citing People v. Veach, 2017 IL 120649, ¶ 46. I agree. While the trial court found that the claim was procedurally defaulted, it went on to discuss the merits of defendant's postconviction claim, no doubt out of concern that this court might not find that the claim was procedurally defaulted and remand for further proceedings.
¶ 56 The majority side steps the Rule 604(d) waiver rule as well as the common law rule of forfeiture. Supra ¶ 25. The majority cites People v. Flowers, 208 Ill.2d 291 (2003) for the 24 proposition that our supreme court "has suggested that[, ] where defendants do not file direct appeals, they do not forfeit claims that could have been raised in an appeal." I disagree. In Flowers, the issue before our supreme court was "whether a criminal defendant who has pleaded guilty may challenge the validity of her sentence on appeal where she did not file the postjudgment motion required by Supreme Court Rule 604 [citation] until after the circuit court's subject matter jurisdiction had expired." 208 Ill.2d at 294. In Flowers, the trial court rejected the parties' plea agreement, which was a plea of guilty to seven counts of forgery, for four-year terms of imprisonment to run concurrent with the sentence defendant was already serving from other counties. Id. at 295. Instead, the trial court imposed five years consecutive to sentences Flowers had received in other cases. Id. Also, Flowers was not admonished regarding restitution, which the trial court imposed as part of her sentence. Id. at 295. Neither Flowers nor her attorney filed a motion to withdraw the guilty plea and vacate the judgment. Flowers filed a notice of appeal and the appellate defender was appointed to represent her. OSAD filed a motion to dismiss on Flowers' behalf, citing Rule 604(d), which the appellate court granted. Flowers filed a pro se postconviction petition and counsel was appointed to represent her. "Flowers' court-appointed attorney withdrew her postconviction petition," filed a motion to reconsider sentence and a Rule 604(d) certificate. The motion was heard and denied by the trial court. On appeal, the appellate court "regarded her appeal as directed solely toward the circuit court's denial of her motion for reconsideration of her sentences," because Flowers had withdrawn her postconviction petition. Id. at 298. Our supreme court held that the appellate court had no authority to entertain the merits of Flowers' appeal, because the trial court had lost jurisdiction to consider Flowers' claim. Id. at 303, 304. Our supreme court explained that the problem in Flowers was postconviction counsel's "decision to take the additional step of filing a motion under Rule 604(d) to reconsider the sentences" despite the fact 25 that the conviction "had been final for over a year." Id. at 302. It was in this context that our supreme court stated that "[t]he requirements of 604(d) are inapplicable to postconviction proceedings." Id. The court explained that "at least from a procedural standpoint," Flowers could have moved forward with her postconviction claim that she was denied effective assistance of counsel. Id. Nothing in Flowers suggests that the 604(d) waiver rule or the common law forfeiture/waiver doctrines do not apply to postconviction proceedings, where defendant has not taken a direct appeal.
¶ 57 People v. Miranda, which was cited by our supreme court in Flowers, involved a guilty plea. 329 Ill.App.3d at 839. In that case, the defendant had been indicted for possession of a controlled substance with intent to deliver. Id. at 839. The defendant posted bond, was released pending trial, and waived her right to a jury trial. Id. The defendant was tried in absentia, found guilty, and also sentenced in absentia to 24 years' imprisonment. Id. At the conclusion of the bench trial, the trial court stated it would not order "a bond forfeiture" because the money could be applied to "attorney's fees." The defendant was later arrested and charged with "bail jumping" pursuant to 720 ILCS 5/32-10(a) (West 2000). Id. The defendant, represented by the same attorney who represented her on the possession charge, accepted the State's plea offer of six years on the bond jumping charge, to run consecutive to the sentence on the possession with intent to deliver cocaine charge. Id. No appeal was taken on the bail jumping conviction. Id. at 840. The defendant filed a postconviction petition with new counsel alleging that there was no factual basis for the guilty plea because the trial court specifically "refused to declare petitioner's bond forfeited" and trial counsel was ineffective for advising the defendant to plead guilty. Id. The petition was heard by the same judge who presided over the trial on the cocaine possession charge. Id. In denying 26 defendant's petition, the trial judge stated that, although he stated, "no bond forfeiture," he meant "just unavailable to her."
¶ 58 On appeal, the First District recognized that "the State correctly cites the general rule that a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional, including constitutional errors." Id. at 844 (citing People v. Peeples, 155 Ill.2d 422, 491 (1993)). The court stated that "[w]e decline to extend this rule where the factual basis to support the plea is absent from the record." Id. at 844. The Miranda court also noted that "[w]aiver is a limitation on the parties and not on the court" and also that the "error in this case is one of great magnitude, calling into question the integrity and fairness of our judicial system." Id. The court stated that the interests of "fundamental fairness necessitates our review." Id. at 843. The First District noted that the underlying possession with intent to deliver charge had been dismissed on the State's motion after defendant was granted postconviction relief. The police officer who was the affiant on the search warrant had been indicted on federal corruption and theft of narcotics charges. Id. at 840.
¶ 59 Application of the guilty-plea waiver rule, codified in Supreme Court Rule 604(d), respects the interest of finality. As our supreme court has repeatedly stated, "an important purpose of Rule 604(d) is to ensure that any errors that may have resulted in a guilty plea and subsequent sentence are brought to the attention of the circuit court before appeal, while memories are fresh and witnesses are available." People v. Gorss, 2022 IL 126464, ¶ 15. The certificate requirement "furthers this purpose by enabling the circuit court to 'ensure that counsel has reviewed the defendant's claim and considered all relevant bases for the motion to withdraw the guilty plea or to consider the sentence.' [Citation.]" Id.
¶ 60 The majority's decision to address the merits of defendant's appeal is inconsistent with the interests in finality. According to the majority's analysis, a defendant who enters a voluntary guilty 27 plea is entitled to forgo Rule 604(d)'s requirement that "any issue" be raised in a timely post plea motion and suffer no consequences. Whereas a defendant who files a timely motion to withdraw his/her guilty plea will be bound by the waiver as to issues not raised in the motion unless he/she can demonstrate plain error or ineffective assistance of counsel. Addressing the merits encourages gamesmanship, discourages the State from engaging in plea bargaining, and is at odds with the "main purpose behind the promulgation of Rule 604(d)," which is "to reduce the large numbers of appeals being taken from guilty pleas." People v. Evans, 174 Ill.2d 320, 329 (1996). 28