People v. Feliciano

2024 IL App (1st) 220867-U

• Court: Appellate Court of Illinois
• Decided: June 10, 2024
• Docket: 1-22-0867
• Status: Unpublished

Opinion

2024 IL App (1st) 220867-U No. 1-22-0867

FIRST DIVISION June 10, 2024

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 JUDICIAL DISTRICT ____________________________________________________________________________ __

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 11 CR 12693 ) GILBERT FELICIANO, ) ) The Honorable Defendant-Appellant. ) Stanley J. Sacks, ) Judge Presiding.

____________________________________________________________________________ __

JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.

ORDER

¶1 Held: The circuit court properly dismissed the defendant’s pro se petition for postconviction relief at the first stage.

¶2 Defendant, Gilbert Feliciano, appeals the summary dismissal of his petition for relief filed under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). Defendant argues No. 1-22-0867

that his petition stated an arguable claim that trial counsel provided ineffective assistance for

failing to investigate alibi witnesses. 1 We affirm.

¶3 BACKGROUND

¶4 A grand jury charged Feliciano with eleven counts of first degree murder (720 ILCS 5/9-1(a)(1),

(2), (3) (West 2010), two counts of home invasion (id. § 12-11(a)(2)), four counts of residential

burglary (id. § 19-3(a)), and one count of robbery (id. § 18-1(a)), following an incident that

occurred on or about October 11, 2010, and continuing through October 13, 2010. The indictment

alleged that Feliciano killed and robbed Stanley Letkiewicz. Feliciano entered a plea of not guilty,

and the matter proceeded to a jury trial. 2

¶5 The jury found Feliciano guilty of first degree murder, robbery of a person sixty years of age or

older, and home invasion. Feliciano filed a pro se motion for a new trial. In paragraph ten of his

motion, he argued that trial counsel provided ineffective for not presenting exculpatory evidence.

The circuit court determined that Feliciano’s ineffective assistance of trial counsel argument

entitled him to a Krankel hearing.

¶6 At the Krankel hearing, the circuit court asked Feliciano to explain his claim of ineffective

assistance of trial counsel. Feliciano argued that his trial counsel provided ineffective assistance

for failing to call the forensic expert and the detective who wrote the police report regarding the

broken window. Although the circuit court repeatedly directed Feliciano to focus on his argument

in paragraph ten of his motion, the circuit court entertained additional claims not raised in the

motion. Throughout the Krankel hearing, Feliciano made the following additional arguments: trial

1 Defendant also claimed that his trial counsel provided ineffective assistance in preventing him

from testifying in his own defense, but he has since withdrawn that claim. 2 Our prior decision. People v. Feliciano, 2020 IL App (1st) 171142, recounts the underlying

facts in more detail. We include only those facts pertinent to the resolution of the instant appeal. -2- No. 1-22-0867

counsel failed to present his testimony, trial counsel failed to object to the neighbor’s testimony

about the dresser, and trial counsel never went through discovery with him. At the end of the

hearing, the circuit asked Feliciano “[a]nything else about your lawyer being ineffective or

whatever?” Feliciano responded “[n]o.” The circuit court denied Feliciano’s pro se motion for a

new trial regarding his claim of ineffective assistance of trial counsel.

¶7 The circuit court sentenced Feliciano to consecutive prison sentences of forty years for one count

of first degree murder, ten years for one count of home invasion, and four years for one count of

robbery, for a total sentence of fifty-four years’ imprisonment.

¶8 On direct appeal, Feliciano challenged the sufficiency of the evidence at trial and the admissibility

of a large portion of that evidence. We affirmed his conviction and sentence. People v. Feliciano,

2020 IL App (1st) 171142.

¶9 Feliciano filed a pro se petition for postconviction relief. His petition claims that he was in

Cleveland, Ohio, from October 11, 2010, through October 13, 2010. During that time, he met a

pastor, the pastor’s wife, and other congregation members in their church parking lot. He informed

his trial counsel that he did not remember the names of the individuals he met, the church’s name,

or the church’s address. Still, he told trial counsel that the “church was located right next door to

the Metro Hospital in Cleveland.” He states that “he knows how to get there***.” Further, he states

that he could provide “explicit directions to the location of the church***.” Feliciano argues that

trial counsel provided ineffective assistance for failing to call these alibi witnesses. Feliciano

attached affidavits from his family members to his petition, indicating that he was of good

character.

¶ 10 Additionally, Feliciano states in his petition that on December 18, 2010, he was arrested and

charged with Letkiewicz’s murder. The State released him on December 22, 2010. He was arrested

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and charged with Letkiewicz’s murder on May 11, 2011. A week later, the State released him. On

July 17, 2011, he was arrested and charged with Letkiewicz’s murder.

¶ 11 The circuit court summarily dismissed Feliciano’s petition for postconviction relief in a written

order. The circuit court determined that he failed to make the requisite factual showing and submit

an affidavit for any of the proposed witnesses.

¶ 12 Feliciano appealed.

¶ 13 ANALYSIS

¶ 14 On appeal, Feliciano argues that the circuit court erred in summarily dismissing his postconviction

petition wherein he stated an arguable claim that his trial counsel provided ineffective assistance

for failing to investigate alibi witnesses. The State responds that Feliciano forfeited this argument

by not raising it during his Krankel hearing. Additionally, the State argues that the circuit court

properly dismissed Feliciano’s ineffective assistance claim for failure to investigate and call alibi

witnesses because Feliciano did not satisfy the corroboration requirement in section 122-2 of the

Act.

¶ 15 At the outset, we note that “forfeiture is a limitation on the parties and not the reviewing court, and

we may overlook forfeiture where necessary to obtain a just result or maintain a sound body of

precedent.” People v. Holmes, 2016 IL App (1st) 132357, ¶ 65. In the interest of justice, we decline

to find forfeiture and proceed to address the merits.

¶ 16 The Act provides a three-stage process by which criminal defendants may assert that a substantial

denial of their constitutional rights resulted in their conviction. People v. Hodges, 234 Ill. 2d 1, 9

(2009). At the first stage, the circuit court shall dismiss the petition if it determines that the petition

is frivolous or is patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2020). A petition is

frivolous or patently without merit only if the petition has no arguable basis, either in law or in

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fact. Hodges, 234 Ill. 2d at 11-12. “A claim has no arguable basis when it is based on an

indisputably meritless legal theory, such as one completely contradicted by the record, or a fanciful

factual allegation, such as one that is fantastic or delusional.” People v. Lewis, 2017 IL App (1st)

150070, ¶ 13.

¶ 17 Since criminal defendants, who lack legal knowledge or training, draft most first-stage petitions,

our supreme court views the threshold for survival as low. Hodges, 234 Ill. 2d at 9. “This low

threshold does not excuse the pro se petitioner from providing factual support for his claims; he

must supply sufficient factual basis to show the allegations in the petition are ‘capable of objective

or independent corroboration.’ ” People v. Allen, 2015 IL 113135, ¶ 24 (quoting People v. Collins,

202 Ill. 2d 59, 75 (2002)). Section 122-2 of the Act states that “the petition shall have attached

thereto affidavits, records, or other evidence supporting its allegations or shall state why the same

are not attached.” 725 ILCS 5/122-2 (West 2020). The purpose of section 122-2 is to establish that

a petition’s claims are capable of objective or independent corroboration. People v. Delton, 227

Ill. 2d 247, 244 (2008). Therefore, failure to either attach the necessary affidavits, records, or other

evidence, or explain their absence is fatal to a postconviction petition, and justifies its summary

dismissal. Collins, 202 Ill. 2d at 66. We review de novo the summary dismissal of a postconviction

petition. Hodges, 234 Ill. 2d at 9.

¶ 18 To prevail on a claim that trial counsel provided ineffective assistance, a defendant must show that

counsel’s performance fell below an objective standard of reasonableness, and that counsel’s

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88

(1984). “At the first stage of postconviction proceedings, a petition alleging ineffective assistance

of counsel may not be summarily dismissed if (1) counsel’s performance arguably fell below an

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objective standard of reasonableness and (2) the petitioner was arguably prejudiced by the deficient

performance.” People v. Hatter, 2021 IL 125981, ¶ 25.

¶ 19 A claim that trial counsel failed to investigate and call a witness must be supported by an affidavit

from the proposed witness or other evidence to establish that the testimony exists. (Emphasis

added.) People v. Enis, 194 Ill. 2d 361, 380 (2000); People v. Dupree, 2018 IL 122307, ¶ 40.

Without such evidence, a reviewing court cannot determine whether the proposed witness could

have provided testimony or information favorable to the defendant, and further review of the claim

is unnecessary. Enis, 194 Ill. 2d at 380.

¶ 20 Feliciano did not attach any affidavits from the proposed alibi witnesses in support of his claim

that he was in Cleveland, Ohio, at the time of Letkiewicz’s murder. Not only did Feliciano not

provide affidavits for these witnesses, but he also did not provide this court with a meaningful way

to determine whether these unnamed witnesses exist. Feliciano claims he does not remember the

names of the pastor, the pastor’s wife, or any other church member. He further claims he does not

remember the church name or address. These claims are unpersuasive.

¶ 21 Feliciano states in his petition that the “church was located right next door to the Metro Hospital

in Cleveland.” Further, he states, “he knows how to get there***.” He also could provide “explicit

directions to the location of the church***.” Thus, it remains unclear why Feliciano did not locate

the church and acquire affidavits from its members or provide this information to his family

members to obtain the affidavits. A Google Maps search reveals that there are approximately ten

hospitals in Cleveland, Ohio, that contain “Metro” in their name. 3 Nothing prevented Feliciano

from providing these “explicit directions” to his family members and requesting that they locate

the church and gather affidavits from congregation members. Moreover, we find it surprising that

3 A reviewing court may take judicial notice of information on Google Maps. People v. Stiff, 391 Ill. App 3d 494,

504 (5th Dist. 2009).

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Feliciano did not obtain the affidavits when he was being investigated for Letkiewicz’s murder

and he was able to obtain them. Supra ¶ 10.

¶ 22 Further, allowing Feliciano’s explanation to satisfy his obligations under the Act would defeat the

purpose of section 122-2. Delton, 227 Ill. 2d at 244 (the purpose of section 122-2 is to establish

that a petition’s claims are capable of objective or independent corroboration). Feliciano has not

provided a sufficient basis to show the allegations in his petition are capable of objective or

independent corroboration. Allen, 2015 IL 113135, ¶ 24. Without such evidence, we cannot

determine whether the proposed alibi witnesses could have provided favorable testimony for

Feliciano, and further review of his claim is unnecessary. People v. Jones, 399 Ill. App. 3d 341,

371 (1st Dist. 2010).

¶ 23 CONCLUSION

¶ 24 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 25 Affirmed.

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