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People v. Sanchez

APPELLATE COURT OF ILLINOIS THIRD DISTRICT
Apr 10, 2013
2013 Ill. App. 3d 110834 (Ill. App. Ct. 2013)

Opinion

3-11-0834

04-10-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE SANCHEZ, Defendant-Appellant.


NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court

of the 12th Judicial Circuit, Will County, Illinois,


Appeal No. 3-11-0834

Circuit No. 06-CF-829


Honorable Sarah-Marie F. Jones, Judge, Presiding.

PRESIDING JUSTICE delivered the judgment of the court.

Justices Carter and Lytton concurred in the judgment.

ORDER

¶ 1 Held: The trial court erred in dismissing defendant's postconviction petition at the first stage. ¶ 2 Defendant, Jose Sanchez, appeals the summary dismissal of his postconviction petition in Will County case No. 06-CF-829 arguing that his postconviction petition stated the gist of a constitutional claim on due process grounds. We reverse the dismissal and remand the cause for further postconviction proceedings.

¶ 3 FACTS

¶ 4 Defendant was charged in Will County case No. 05-CF-1512 with several offenses, including aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(2) (West 2004)), arising out of an incident that occurred on July 23, 2005. Defendant posted bond in case No. 05-CF-1512 on December 17, 2005. ¶ 5 While released on bond in case No. 05-CF-1512, defendant was arrested and subsequently charged with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)) and unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(2) (West 2006)) in case No. 06-CF-829 based on events that occurred on or around April 9, 2006. Following a trial by jury on January 12, 2007, defendant was convicted of both charges, based on a theory of accountability, in case No. 06-CF-829. ¶ 6 The court scheduled case No. 06-CF-829 for a sentencing hearing on March 13, 2007. By agreement, the court postponed sentencing in case No. 06-CF-829 because case No. 05-CF-1512 remained pending and a jury trial was expected to occur in that case in the near future. As expected, the jury trial in case No. 05-CF-1512 began on July 9, 2007, and in that unrelated and independent case, the jury returned a guilty verdict for aggravated battery with a firearm. Following this second jury trial, and also by agreement, the court conducted a combined sentencing hearing in case No. 05-CF-1512 and case No. 06-CF-829 on August 16, 2007. ¶ 7 During arguments in the combined sentencing hearing, the State asked the court to "keep in mind you have heard the facts on both cases. Both involved shooting a firearm" and requested the court to impose consecutive sentences "to the Department of Corrections on both cases." Similarly, during sentencing arguments, defense counsel acknowledged defendant was before the court for "two serious offenses," but requested the court to impose the minimum prison term for each offense. ¶ 8 When announcing the respective sentences in each case, the court observed there were "two incidents because of the involvement of a firearm in one way or another either by [defendant's] hands or by another's hands." The court sentenced defendant to a total of 11 years' imprisonment on case No. 06-CF-829 and a consecutive term of 19 years' imprisonment on case No. 05-CF-1512. ¶ 9 On direct appeal in case No. 05-CF-1512, this court reversed defendant's conviction and remanded the cause for a new trial. People v. Sanchez, 392 Ill. App. 3d 1084 (2009). Following remand, the State elected to nolle prosequi the charge in case No. 05-CF-1512 and the court dismissed the case on January 18, 2011. ¶ 10 On July 25, 2011, defendant filed a postconviction petition in the unrelated case No. 06-CF-829 alleging, in part, the trial court considered his conviction in case No. 05-CF-1512 when it determined the appropriate punishment in case No. 06-CF-829. The trial court summarily dismissed defendant's postconviction petition in case No. 06-CF-829 as frivolous and patently without merit. Defendant appeals. We reverse and remand for further proceedings.

¶ 11 ANALYSIS

¶ 12 In the instant case, the postconviction petition at issue alleges the trial court considered defendant's conviction in case No. 05-CF-1512 when determining the proper punishment in case No. 06-CF-829. Since defendant's conviction in case No. 05-CF-1512 was reversed, and the State did not retry defendant for that offense, defendant alleges he suffered a due process violation when the court based his sentence in case No. 06-CF-829, in part, after considering his conviction in case No. 05-CF-1512. ¶ 13 The State contends the court properly dismissed the petition at the first stage as a matter of law. The State submits, for purposes of sentencing, the trial court may properly consider other criminal misconduct attributable to defendant, regardless of whether the misconduct resulted in a conviction. See People v. Jackson, 149 Ill. 2d 540 (1992); People v. English, 353 Ill. App. 3d 337 (2004). ¶ 14 We agree that the trial court may consider evidence concerning a defendant's past criminal conduct, regardless of conviction, where the State presents evidence of past misconduct for the court to evaluate as an aggravating sentencing consideration. Jackson, 149 Ill. 2d 540. However, the State's argument in this case ignores that the postconviction petition at hand actually alleges the court considered a vacated conviction, and does not allege the court merely considered prior criminal misconduct. ¶ 15 We note that prior convictions carry significant weight and authenticity because the State must overcome fundamental constitutional and procedural safeguards before a judgment of conviction becomes part of an individual's criminal history. For this reason, prior convictions may have a greater impact upon the sentencing judge than previous misconduct that did not become part of an offender's criminal history by conviction. ¶ 16 For example, in United States v. Tucker, the court sentenced an offender to 25 years in prison based, in part, on his criminal history involving three felonies. 404 U.S. 443, 447 (1972). However, two of those convictions were vacated on review after defendant's sentencing hearing. In that case, the United States Supreme Court held that the defendant was entitled to be resentenced because, as the Court recognized, "this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue." Id. at 447 (quoting Townsend v. Burke, 334 U. S. 736, 741 (1948)). ¶ 17 Similarly, Illinois courts have held that the trial court may not consider a prior conviction, which has been overturned on appeal, when sentencing the same defendant for another unrelated offense. People v. Wunnenberg, 87 Ill. App. 3d 32 (1980). To do so violates due process. See People v. Chellew, 20 Ill. App. 3d 963 (1974). Consequently, because defendant raised a constitutional issue involving due process, we reject the State's contention that this particular postconviction claim is not cognizable under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). ¶ 18 The Act provides a three-stage process for the adjudication of postconviction petitions. People v. Hodges, 234 Ill. 2d 1 (2009). At the first stage, a petition may be summarily dismissed by the judge at this stage if it has no arguable basis either in law or in fact. People v. Tate, 2012 IL 112214. At the first stage, the trial court must independently determine whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2006). The petition's allegations, liberally construed and taken as true, need only present the gist of a constitutional claim to survive this stage. People v. Harris, 224 Ill. 2d 115 (2007). We review the first-stage dismissal of a postconviction petition de novo. People v. Morris, 236 Ill. 2d 345 (2010). We will uphold the dismissal of a petition when the record contradicts a defendant's allegations. People v. Rogers, 197 Ill. 2d 216 (2001). ¶ 19 In the case at bar, defendant's postconviction petition alleges that "his prior conviction, (Case No. 05CF1512), was considered at sentencing and is now nolle prosequied." The record does not explicitly contradict defendant's assertion that the trial court considered his conviction in 05-CF-1512 during the combined sentencing hearing in case No. 06-CF-829. Moreover, as alleged, defendant's conviction for conduct occurring on July 23, 2005, was set aside by this court and the charges were ultimately dismissed following remand to the trial court. ¶ 20 Thus, taking the allegations of the postconviction petition as true, the petition alleges the trial court considered defendant's actual conviction in case No. 05-CF-1512, which was subsequently vacated, when imposing punishment for the offense in the case at bar and in violation of due process. Consequently, we conclude the postconviction petition in this case stated the gist of a constitutional claim which was not contradicted by the record available to the trial court. We remand the cause to the trial court for further postconviction proceedings.

¶ 19 CONCLUSION

¶ 20 For the foregoing reasons, the judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings. ¶ 21 Reversed and remanded.


Summaries of

People v. Sanchez

APPELLATE COURT OF ILLINOIS THIRD DISTRICT
Apr 10, 2013
2013 Ill. App. 3d 110834 (Ill. App. Ct. 2013)
Case details for

People v. Sanchez

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE SANCHEZ…

Court:APPELLATE COURT OF ILLINOIS THIRD DISTRICT

Date published: Apr 10, 2013

Citations

2013 Ill. App. 3d 110834 (Ill. App. Ct. 2013)

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