2025 IL App (1st) 221599-U No. 1-22-1599 Order filed June 13, 2025 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 10623 ) JUAN ALVARADO-GONZAZEZ, ) Honorable ) Michael B. McHale, Defendant-Appellant. ) Judge, Presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Navarro concurred in the judgment.
ORDER
¶1 Held: We affirmed dismissal where the allegations and supporting evidence contained in defendant’s fourth and fifth successive postconviction petitions were insufficient to raise a colorable claim of actual innocence and were barred by waiver under section 122-3 of the Post-Conviction Hearing Act (725 ILCS 5/122-3 (West 2020)).
¶2 Defendant Juan Alvarado-Gonzalez appeals from the denial of his fourth and fifth
successive pro se postconviction petitions in which he raised claims of actual innocence. On
appeal, defendant contends that the denial of his successive postconviction petitions should be No. 1-22-1599
reversed and remanded with instructions to translate the evidence from Spanish to English and
assignment to a new judge because: (1) the trial court refused to consider evidence of defendant’s
actual innocence because it was in Spanish; and, (2) it was unfair to deny review of the submitted
evidence merely because it was in untranslated Spanish. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 A. Defendant’s Guilty Plea Proceedings
¶5 Defendant entered a negotiated guilty plea to charges of predatory criminal sexual assault
of a victim less than 13 years of age and grooming, and was sentenced to an aggregate of 11 years.
The circumstances surrounding defendant’s arrest and court hearings were fully set out in
defendant’s direct appeal (People v. Alvarado-Gonzalez, 2021 IL App (1st) 181209-U), and will
be relayed here only as necessary for resolution of this appeal.
¶6 Briefly stated, the record reveals that defendant was arrested on June 19, 2017, in
connection with allegations of sexually related crimes involving victims under the age of 13. He
was subsequently indicted on July 28, 2017, for multiple charges of predatory criminal sexual
assault of a victim under the age of 13, aggravated criminal sexual abuse of a victim under the age
of 13, and multiple charges of grooming. Defendant, who was appointed a Spanish interpreter
because he did not speak English, initially pleaded not guilty. The State subsequently tendered a
plea offer to defendant’s privately retained counsel in October 2017, however, on November 28,
2017, defense counsel relayed to the trial court that defendant told him that he wished to represent
himself. Ultimately, defendant decided to allow his private counsel to resign and a public defender
was appointed to represent him. At the next court date on January 3, 2018, defendant’s public
defender told the trial court that an agreement was reached with the State.
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¶7 The State indicated that it would proceed on count one, predatory criminal sexual assault,
a Class X felony, and offered nine years on that count; and counts four and five, grooming, for
which it offered one year each. APD Ahuja stated that the grooming counts would be served at
50% and the predatory criminal sexual assault count would be served at 85%. The State nol-
prossed counts two and three in anticipation of the plea.
¶8 The trial court read the charge of predatory criminal sexual assault to defendant, as follows:
on or about September 1, 2016, and continuing through November 30, 2016, defendant committed
the offense of predatory criminal sexual assault of a child in that he was 17 years of age or older
and that he knowingly committed an act of sexual penetration on a 13-year-old child, E.G. When
the trial court asked defendant whether he understood the charge against him, defendant replied,
in English, “yes.” Defendant then pleaded guilty to that charge.
¶9 The trial court then informed defendant that the offense was a class X felony and that the
sentencing range was 6 to 60 years, with a parole period (Mandatory Supervised Release (MSR))
of three years to life, and that he would have to register as a sex offender for the rest of his life.
When the court asked defendant whether he understood all of that, defendant replied, in English,
“yes.” The trial court also informed defendant that it could fine him up to $25,000 but would not.
Defendant and the trial court had an exchange in open court after he informed the court that he did
not understand the possible penalties for the charge.
¶ 10 The trial court then read the second charge as follows: on or about September 1, 2016,
continuing through November 30, 2016, in Cook County, defendant committed the offense of
grooming in that he knowingly used a computer online service, internet service, local bulletin
board service or any other device capable of electronic storage or transmission, specifically a
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laptop, to seduce, solicit, lure, entice or attempt to seduce or lure a child by showing child
pornography to a child in order to commit any sex offense or otherwise engage in any unlawful
sexual conduct which would be sexual penetration with the child or another person believed by
defendant to be a child, namely E.G. Defendant ultimately pleaded guilty to that charge also.
¶ 11 Finally, the trial court read the last charge to defendant, which was the same as the second
charge, but with a different victim, C.G., to which defendant pleaded guilty after initially stating
that he was not pleading guilty to the last two charges. After an exchange with the trial court
concerning the charges, defendant pleaded guilty. The trial court then admonished defendant of
his right to a jury trial, and other admonishments related to guilty pleas which defendant confirmed
that he understood.
¶ 12 The State then presented the following stipulated factual bases for the pleas. The offenses
occurred between September 1, 2016, and November 30, 2016, in Chicago, at 2925 North Allen
Avenue, apartment number one. The victims were E.G., who was between the ages of 11 and 12,
and C.G., who was 10 years old. Defendant, who was 27 years old, was a family friend who had
been visiting the victims’ home since April 2016. During those dates, defendant brought a black
laptop to the victims’ home and showed pornography to both E.G., and C.G, and laughed as he
showed pornography to C.G. The State continued that if the case proceeded to trial, it would show
the nature of the photographic pornographic images that were shown to the victims and that
defendant sought to use that pornography to try and seduce each of the victims. Additionally, the
State would show that defendant, while alone with E.G., in the kitchen, pulled down the victim’s
pants and underwear, got on his knees and licked the victim’s penis. Defendant was arrested on
June 19, 2017, and made admissions after receiving his Miranda rights.
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¶ 13 The trial court found that defendant’s pleas were given knowingly and voluntarily and
further accepted the factual bases provided for the pleas. 1 The court subsequently entered findings
of guilty and judgment, for predatory criminal sexual assault of a child and two counts of
grooming. Prior to sentencing, the trial court admonished defendant about the waiver of a
presentence investigation report because of the guilty pleas. The State then presented evidence in
aggravation and the trial court further admonished defendant that if he were not a United States
citizen that he could be deported based on the guilty plea. Defendant asked if there was any way
that he could receive less time, to which the trial court replied that there was an agreement about
the sentence and proceeded to sentence defendant, in accordance with the negotiated plea, to
consecutive terms of nine years on count one, one year on count four and one year on count five.
Defendant also received 198 days credit, three years to life MSR, and lifetime sex offender
registration. The trial court reiterated that count one would be served at 85%, and the other two
counts would be served at 50%, and marked the mittimus to reflect that hospital treatment was
ordered. The trial court next admonished defendant as to his appeal rights, informing him that he
would need to file a written motion to withdraw his plea within 30 days and explain why he wanted
to withdraw the plea. The court explained that if the motion was granted, the guilty plea and
sentence would be set aside, and the case would go to trial with the previously dismissed charges
reinstated. If the motion was denied, defendant would have 30 days to file a written notice of
appeal and any issues not raised in the motion would be waived for appeal. Defendant indicated
that he understood his appeal rights.
1 The common law record does not contain a written guilty plea, only the verbal plea as indicated in the report of proceedings.
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¶ 14 B. Procedural Background
¶ 15 1. Post Plea Proceedings and Direct Appeal
¶ 16 As noted in defendant’s direct appeal, the record contains a number of pro se filings by
defendant after his guilty pleas were entered.
¶ 17 Defendant filed an initial petition to withdraw his guilty plea and vacate sentence, dated
January 26, 2018, that was received by the trial court on February 3, 2018. Defendant argued in
his petition that he was not appointed counsel that he could understand, and he did not in any way
understand or know how to read English. He asserted that the court violated his constitutional right
to a fair trial, he had not been able to file a posttrial motion because he did not speak or read any
English and was poor so he could not afford a lawyer. Defendant filed a second petition to
withdraw guilty plea and vacate sentence dated February 1, 2018, in which defendant raised the
same arguments as in the first petition.
¶ 18 Counsel was appointed to represent defendant at a hearing on his petitions on March 30,
2018. Counsel also filed an amended motion to withdraw defendant’s guilty plea on defendant’s
behalf, contending that he did not understand the plea and felt confused. APD Ahuja also filed a
Rule 604(d) certificate. Defendant was present in court and a Spanish interpreter was appointed to
assist him. The court noted that it “went over backwards” to make sure that defendant understood
what was going on; answered defendant’s questions; additionally, went beyond the normal
admonishments; explained parole and MSR and registration as a sex offender; explained a jury
trial; allowed him time to confer with his attorney and offered him more time to think about the
plea, which he declined. The trial court found that the plea was proper, that defendant knew what
he was doing and gave a knowing, voluntary and intelligent plea. The court then denied
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defendant’s motion and admonished him of his appeal rights. Defendant filed his direct appeal on
March 30, 2018 (No. 1-18-1209).
¶ 19 On direct appeal, defendant contended that: (1) his guilty plea was involuntary because the
record corroborates his post-plea claim that he did not understand the plea proceedings and the
trial court failed to substantially comply with Rule 402 (Ill. S. Ct. 402 (eff. July 1, 2012)); (2) this
case should be remanded for further post-plea proceedings with new counsel because: (a) post-
plea counsel was ineffective for failing to move to withdraw as counsel based on a conflict of
interest and (b) this case should be remanded because the trial court erred in failing to determine,
prior to ruling on defendant’s motion to withdraw his plea, whether post-plea counsel had a conflict
of interest; and (3) this cause should be remanded because post-plea counsel failed to strictly
comply with Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July 1, 2017)) and amend defendant’s pro se
motion to withdraw his plea to include an allegation that the trial court failed to substantially
comply with Rule 402. People v. Alvarado-Gonzalez, 2021 IL App (1st) 181209-U, ¶ 26.
¶ 20 We affirmed, finding that defendant’s guilty plea was entered knowingly and voluntarily.
Id. ¶ 42. We also found that there was no plain error because the trial court substantially complied
with Illinois Supreme Court Rule 402 admonishments (eff. July 1, 2012) (Id. ¶¶ 52-62); defense
counsel did not operate under a conflict of interest when she presented defendant’s motion to
withdraw his plea and thus was not ineffective for failing to withdraw as counsel (Id. ¶¶ 72-74);
the trial court did not err by not inquiring into any alleged conflict of interest prior to accepting the
plea; and counsel was not ineffective where she failed to amend defendant’s pro se pleading to
include a meritless claim (Id. ¶ 76).
¶ 21 2. Defendant’s Postconviction Proceedings
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¶ 22 Prior to filing his notice of direct appeal, defendant filed what was categorized as a
postconviction petition on March 2, 2018, in which he again argued that he did not understand
English, nor did he understand his attorney that was appointed from the public defender’s office.
The trial court denied defendant’s postconviction petition on May 30, 2018, because his claims
were refuted by the record. Specifically, the trial court noted that the petition raised the same
allegations as the various motions to withdraw the guilty plea and further found that defendant’s
motion to withdraw his plea filed on February 3, 2018, was untimely; a Spanish interpreter was
appointed for defendant who assisted him with his plea and further that defendant was properly
admonished.
¶ 23 On March 13, 2019, defendant filed a motion with additional claims challenging his guilty
plea and the trial court denied leave to file on May 21, 2019. Defendant’s subsequent consolidated
pro se appeals (Nos. 1-19-0653 & 1-19-1380) were remanded for defendant to withdraw or amend
his pleadings on September 22, 2021. Defendant ultimately withdrew those pleadings in the trial
court.
¶ 24 Meanwhile, on April 1, 2019, defendant filed a successive postconviction petition claiming
that he was mentally unfit and that defense counsel was ineffective for failing to seek a fitness
hearing or investigate his defenses. In this petition, defendant alleged that there were Facebook
messenger conversations allegedly with the complainant’s mother who was asking for money,
offering sex, threatening him with deportation and falsely reporting him for a sex offense. This
successive petition was summarily dismissed on November 1, 2019.
¶ 25 On December 8, 2020, defendant filed a second successive postconviction petition
claiming actual innocence based on newly discovered evidence. Defendant argued that his attorney
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never saw three affidavits regarding complainant’s parents’ blackmail, extortion, and false
accusations to Chicago police in 2017, and referenced eight pages of Spanish language Facebook
messages. The trial court dismissed defendant’s second successive postconviction petition on April
2, 2021, noting that the documents defendant referenced were not attached to the petition and
further that defendant could not claim actual innocence after a guilty plea. Defendant’s subsequent
appeal (No. 1-21-0882) was remanded by this Court for reconsideration under our supreme court’s
decision in People v. Reed, 2020 IL 12490 on December 23, 2022. On February 3, 2023, in
response to the remand, the trial court entered an order finding that no further review of the third
successive postconviction petition was required as it was considered and denied under the Reed
standard on September 22, 2022.
¶ 26 Defendant also filed two motions in June 2021, a motion to “proceed on second and third
evidentiary hearing on postconviction petition filed [December 8, 2020]” claiming actual
innocence and a motion for substitution of judge, which was denied. Defendant filed an appeal
(No. 1-21-0991) which was dismissed because there was no underlying action pending. Defendant
subsequently sought to file a fourth successive postconviction petition on July 7, 2021, claiming
actual innocence under Reed, 2020 IL 12490, and included the same affidavits and Facebook
messages that were in Spanish. On October 20, 2021, defendant sought to file a fifth successive
postconviction petition, which again raised the same allegations and included the same
attachments. Defendant filed various motions attempting to advance the fourth and fifth successive
postconviction petitions and requesting that the trial court translate all of his attachments to
English.
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¶ 27 The trial court found that the exhibits dated back to 2016 and further that defendant’s sister
indicated that defendant had prior problems with several kids. On September 22, 2022, the trial
court dismissed both successive petitions and all related pleadings. The trial court concluded that:
(1) the petitions were barred by res judicata; (2) the evidence defendant provided was not
conclusive of an actual innocence claim and that it was defendant’s burden to demonstrate how
and why the messages had merit; (3) the messages defendant attached to his petitions showed that
his sister harassed complainant’s parents; and (4) the translation of the affidavits was defendant’s
burden. Defendant filed his timely notice of appeal on October 11, 2022.
¶ 28 ANALYSIS
¶ 29 As noted above, defendant contends on appeal that we should reverse the trial court’s order
denying him leave to file a fourth and fifth successive postconviction petition and remand, with
instructions to translate the evidence from Spanish to English and to assign the case to a new judge,
because: (1) the trial court refused to consider evidence of defendant’s actual innocence because
it was in Spanish; and, (2) it was unfair to deny review of the submitted evidence merely because
it was in untranslated Spanish.
¶ 30 The Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq. (West
2020)) contemplates the filing of only one postconviction petition. People v. Ames, 2019 IL App
(4th) 170569, ¶ 12. Specifically, section 122-3 of the Postconviction Act declares any claim of
substantial denial of constitutional rights not raised in the original or an amended petition is
waived. 725 ILCS 5/122-3 (West 2020). Section 122-1(f) of the Postconviction Act sets forth an
exception to the waiver rule, providing that only one petition may be filed by a petitioner without
leave of court, which may be granted only if a petitioner demonstrates cause for his or her failure
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to bring the claim in his or her initial post-conviction proceedings and prejudice results from that
failure. 725 ILCS 5/122-1(f) (West 2020). For purposes of this subsection, a petitioner shows cause
by identifying an objective factor that impeded his or her ability to raise a specific claim during
the initial post-conviction proceedings and a petitioner shows prejudice by demonstrating that the
claim not raised during the initial post-conviction proceedings so infected the trial that the resulting
conviction or sentence violated due process. Id.
¶ 31 Thus, for a defendant to obtain leave to file a successive postconviction petition, both
prongs of the cause-and-prejudice test must be satisfied. Ames, 2019 IL App (4th) 170569, ¶ 12.
With a motion for leave to file a successive postconviction petition, the court is just conducting a
preliminary screening to determine whether defendant’s pro se motion for leave to file a successive
postconviction petition adequately alleges facts demonstrating cause and prejudice. Id. ¶ 13. The
court is only to ascertain whether the defendant has made a prima facie showing of cause and
prejudice; if so, the trial court grants the defendant leave to file the successive postconviction
petition. Id. In conducting the preliminary screening, our supreme court has held that the State
should not be allowed to participate. Id.
¶ 32 However, if a defendant sets forth a claim of actual innocence in a successive
postconviction petition, meaning that he can demonstrate a fundamental miscarriage of justice, he
is “excused” from showing cause and prejudice. People v. Green, 2012 IL App (4th) 101034, ¶
29. When a successive postconviction petition based on a claim of actual innocence is filed, leave
of court should be denied only where it is clear, from a review of the successive petition and the
documentation provided that, as a matter of law, the petitioner cannot set forth a colorable claim
of actual innocence. People v. Calhoun, 2016 IL App (1st) 141021, ¶ 26. In other words, leave of
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court should be granted when the petitioner’s supporting documentation raises the probability that
it is more likely than not that no reasonable juror would have convicted him in the light of the new
evidence. Id.
¶ 33 The elements of a successful claim of actual innocence require that the evidence supporting
the claim must be (1) newly discovered, (2) material, (3) not merely cumulative, and (4) of such
conclusive character that it would probably change the result on retrial. Id. ¶ 27. In order to
constitute a claim of actual innocence, the new evidence must vindicate or exonerate the petitioner:
it must do more than merely call into question the sufficiency of the evidence adduced at trial. Id.
¶ 34 Before proceeding to the merits of defendant’s appeal, we note that our review of the record
shows that defendant failed to seek leave to file any of his successive postconviction petitions, but
in particular the fourth and fifth successive postconviction petitions that are the subject of this
appeal, as required by section 122-1(f) of the Postconviction Act. 725 ILCS 5/122-1(f) (West
2020). However, if the trial court is satisfied that a defendant has submitted sufficient
documentation to allow the court to make the section 122-1(f) determination, the trial court may
do so and choose to address the defendant’s successive petition on the merits. Green, 2012 IL App
(4th) 101034, ¶ 26.
¶ 35 In this case, we conclude that our review of the trial court’s dismissal of defendant’s fourth
and fifth successive postconviction petitions is not limited given that the trial court saw fit to
consider the matter and rule on its own accord (Id.), we turn to the merits of defendant’s appeal.
¶ 36 In this case, the trial court dismissed defendant’s fourth and fifth successive postconviction
petitions without finding facts and thus we review its judgment de novo. Green, 2012 IL App (4th)
101034, ¶ 30. A trial court’s determination that a petitioner has failed as a matter of law to assert
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a colorable claim of actual innocence suggests de novo review. People v. Jones, 2017 IL App (1st)
123371, ¶45. Additionally, we may affirm the trial court’s judgment on any basis supported by the
record if the judgment is correct. Green, 2012 IL App (4th) 101034, ¶ 30. Just as our supreme
court did not decide the issue in People v. Edwards, 2020 IL 111711, ¶ 30, we need not determine
this issue in this case because defendant’s claim of actual innocence fails under either standard of
review, since we find that his supporting documentation is too insufficient to justify further
proceedings. Jones, 2017 IL App (1st) 123371, ¶ 45.
¶ 37 The record establishes that defendant has a lengthy history of filing pleadings since entry
of his guilty pleas on January 3, 2018. He filed two petitions to withdraw his guilty plea dated
January 26 and February 1, 2018. He filed his first postconviction petition before the hearing on
those petitions on March 6, 2018, and subsequent petitions and pleadings in the time since, leading
up to the fourth and fifth postconviction petitions that are the subject of this appeal.
¶ 38 We first note that defendant has not shown why his actual innocence claim could not have
been raised on direct appeal or in his initial postconviction petition, which was filed in 2018.
Defendant alone had knowledge of whether or not he was actually innocent of the charges against
him and presumably could have raised that claim at any time. Indeed, the record establishes that
defendant first raised a claim of actual innocence on other grounds in his December 2020 third
successive postconviction petition. Moreover, the documentation attached to the fourth and fifth
successive petitions dates as far back as 2016, which was prior to entry of his guilty pleas, and
again, defendant has offered no reason for why such documentation and claims could not have
been presented earlier. In the context of a successive postconviction petition, the procedural bar of
waiver is not merely a principle of judicial administration; it is an express requirement. People v.
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Montanez, 2023 IL 128740 (2023). As such, we find that defendant’s claims are waived pursuant
to section 122-3 of the Post-Conviction Act. 725 ILCS 5/122-3 (West 2020).
¶ 39 Waiver aside, our review of defendant’s fourth and fifth successive postconviction
petitions and supporting documentation yields the conclusion that defendant did not establish a
colorable claim of actual innocence. Defendant’s argument appears to be that he is actually
innocent because his supporting documentation shows that complainant’s mother asked for money,
offered sex, threatened defendant with deportation, and threatened to falsely report him for a sex
offense. Defendant also submitted three affidavits in Spanish that were dated in 2017; however,
the content of those affidavits is unknown because they are untranslated. While defendant argues
on appeal that the trial court should have translated those affidavits, such an argument contradicts
defendant’s burden on a successive postconviction petition. It is defendant’s burden as the
petitioner to establish that his evidence conclusively supports his claim of actual innocence.
Calhoun, 2016 IL App (1st) 141021, ¶ 27. It is not the responsibility of the trial court or this court
to speculate on the contents of defendant’s supporting documentation.
¶ 40 Recognizing that the translation of documents may trigger some access to justice concerns,
lets assume that defendant’s allegations that the untranslated affidavits and Facebook messages
show that complainant’s mother had questionable character are true. The proposed evidence still
fails to show that defendant’s convictions, which were the product of negotiated guilty pleas,
would have been different. It does not conclusively establish in any way that defendant was
actually innocent of the charges of predatory criminal sexual assault of a victim less than 13 years
of age and grooming.
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¶ 41 As noted above, in order to establish actual innocence, the evidence submitted to support
the claim must be (1) newly discovered, (2) material, (3) not merely cumulative, and (4) of such
conclusive character that it would probably change the result on retrial. Id. We have already
adduced that the evidence was not newly discovered as it is dated prior to the filing of defendant’s
initial postconviction petition. Nor was it material to defendant’s claim of actual innocence or
conclusive as discussed above. This is true regardless of whether the evidence was translated from
Spanish; it was insufficient to establish defendant’s actual innocence. Accordingly, we find that
the trial court properly dismissed defendant’s fourth and fifth successive postconviction petitions
for failure to state a colorable claim of actual innocence.
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
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