People v. Garcia-Cordova

2019 IL App (2d) 170523-U

• Court: Appellate Court of Illinois
• Decided: November 19, 2019
• Docket: 2-17-0523
• Status: Unpublished

Opinion

2019 IL App (2d) 170523-U No. 2-17-0523 Order filed November 19, 2019

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). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 06-CF-1371 ) DANIEL GARCIA-CORDOVA, ) Honorable ) Patricia Sowinski Fix, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.

ORDER

¶1 Held: The order dismissing defendant’s postconviction petition on the State’s motion was affirmed. There was no need to remand the matter for an inquiry regarding a potential conflict of interest or for the resolution of any claim. Defendant failed to make a substantial showing of a constitutional violation.

¶2 Defendant, Daniel Garcia-Cordova, 1 appeals from the second-stage dismissal of his

“supplemental” petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2018)). For the reasons that follow, we affirm.

1 In his notice of appeal, and on the cover of his brief, defendant identifies himself as Daniel 2019 IL App (2d) 170523-U

¶3 I. BACKGROUND

¶4 In 2007, defendant was convicted of predatory criminal sexual assault of a child (720 ILCS

5/12-14.1(a)(1) (West 2006)) and was sentenced to 24 years in prison. He was represented at trial

by two assistant public defenders, John Bailey and Jennifer Snyder. In December 2011, we

affirmed defendant’s conviction and sentence on direct appeal. People v. Garcia-Cordova, 2011

IL App (2d) 070550-B.

¶5 Meanwhile, in August 2009, defendant filed a pro se petition for postconviction relief.

Given the unavailability of the trial transcripts due to the pending direct appeal, the court advanced

the petition for second-stage proceedings.

¶6 In October 2010, assistant public defender Elizabeth Schroeder filed an amended

postconviction petition on defendant’s behalf. In April 2011, the court dismissed the petition on

the State’s motion without an evidentiary hearing. In September 2012, we reversed and remanded

the matter “for further second-stage proceedings to allow postconviction counsel to comply with

Rule 651(c).” People v. Garcia-Cordova, 2012 IL App (2d) 110514-U, ¶ 18.

¶7 Schroeder was the first counsel who represented defendant on remand. After spending the

better portion of a year investigating the matter, she filed another postconviction petition on

defendant’s behalf in September 2013. The only issue raised in that petition was ineffective

assistance of trial counsel for failing to investigate defendant’s mother as a potential character

Cordova-Garcia. He was indicted, however, under the name Daniel Garcia-Cordova, and that was

the name that we used in defendant’s two prior appeals. It was also the name that was listed on

defendant’s supplemental postconviction petition. To be consistent with our prior dispositions, we

will refer to defendant as Daniel Garcia-Cordova.

-2- 2019 IL App (2d) 170523-U

witness. The same day that this petition was filed, assistant state’s attorney Matthew DeMartini

noted in open court that Schroeder might have a conflict of interest, given that she was alleging

ineffective assistance on the part of her fellow assistant public defenders. The court, Judge George

Bridges presiding, set the matter for a hearing on that issue on September 27, 2013, so that

defendant could be present. On that date, although defendant confirmed that he was in accord with

the latest petition that Schroeder filed on his behalf, he did “not wish to have the Public Defender

represent [him] in this matter.” Schroeder took no position on whether it was advisable to appoint

outside counsel, but DeMartini indicated that he believed that appointing another attorney was “the

appropriate way to go.” The court appointed James McAuliff, an attorney in private practice, to

represent defendant in connection with the postconviction proceedings.

¶8 McAuliff represented defendant between September 2013 and July 2014. McAuliff

investigated defendant’s case but never filed anything on his behalf. It seems from the record that

the reason McAuliff was discharged from the case was that he moved to Indiana. Attorney Latonya

Burton, another private practitioner, then represented defendant between August 2014 and August

2015. Burton apparently was discharged from the case due to the expiration of the public

defender’s “conflict contract” with outside counsel. Like McAuliff, Burton investigated

defendant’s case but did not file anything on his behalf. After Burton was discharged, the court

re-appointed the public defender to represent defendant.

¶9 Assistant public defender Jeffrey Facklam then spent more than a year investigating

defendant’s case. During that time, the matter was reassigned to Judge Patricia Sowinski Fix. In

February 2017, Facklam filed a “supplemental post conviction petition” on defendant’s behalf. In

that petition, defendant alleged ineffective assistance of trial counsel for (1) failing to discuss with

defendant the issue of lesser included offenses, (2) failing to investigate defendant’s case in support

-3- 2019 IL App (2d) 170523-U

of a motion for a bill of particulars to narrow down the dates of the offenses alleged in the

indictment, (3) failing to cross-examine the child victim, and (4) failing to allow defendant to

testify on his own behalf. Neither the attorneys, defendant, nor the court questioned whether

Facklam had a conflict of interest in raising those claims. The State moved to dismiss the

supplemental petition. The court granted that motion, and defendant timely appealed.

¶ 10 II. ANALYSIS

¶ 11 “The Act provides a method for an individual, subject to a criminal sentence, to challenge

a conviction by alleging it was the result of a substantial denial of federal or state constitutional

rights or both.” People v. Lesley, 2018 IL 122100, ¶ 31. There are three stages of postconviction

proceedings. Lesley, 2018 IL 122100, ¶ 31. At the first stage, the court considers whether the

petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Lesley,

2018 IL 122100, ¶ 31. If the matter advances to the second stage, the court may appoint counsel

for the defendant, and counsel may amend the petition. Lesley, 2018 IL 122100, ¶¶ 31-32. The

State may then move to dismiss the petition. Lesley, 2018 IL 122100, ¶ 32. If the court denies

such motion, the matter proceeds to a third-stage evidentiary hearing to determine the merits of

the defendant’s claims. Lesley, 2018 IL 122100, ¶ 32.

¶ 12 The court here dismissed defendant’s supplemental petition at the second stage. At this

stage, “the petitioner bears the burden of making a substantial showing of a constitutional

violation.” People v. Domagala, 2013 IL 113688, ¶ 35. In evaluating the petition, the court must

accept as true all well-pleaded facts and refrain from making its own factual findings. People v.

Kirkpatrick, 2012 IL App (2d) 100898, ¶ 13. We review a dismissal order de novo. People v.

Henry, 2016 IL App (1st) 150640, ¶ 39. This means that we do not “defer to the trial court’s

-4- 2019 IL App (2d) 170523-U

judgment or reasoning,” but we instead analyze the petition “completely independent of the trial

court’s decision.” Henry, 2016 IL App (1st) 150640, ¶ 39.

¶ 13 A. Conflict of Interest

¶ 14 Defendant first argues that, because Facklam challenged the effectiveness of his fellow

assistant public defenders, the court “should have conducted an inquiry to ascertain whether the

defendant had conflict-free advocacy.” Given that the record does not disclose either the

organizational structure of the Lake County public defender’s office or the “specific working

relationship” between Facklam and defendant’s prior attorneys, defendant asks us to remand the

matter for an inquiry regarding whether Facklam had a conflict of interest.

¶ 15 The State opposes defendant’s request for a remand. According to the State, case law does

not compel a remand for an inquiry regarding a “hypothetical conflict of interest.”

¶ 16 Criminal defendants are entitled to effective assistance of counsel, which includes

“assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or

inconsistent obligations.” People v. Cole, 2017 IL 120997, ¶ 22. It is not a per se conflict of

interest for an assistant public defender to argue that his or her colleague provided ineffective

assistance to a client. People v. Banks, 121 Ill. 2d 36, 43 (1987). Instead, in such situations, “a

case-by-case inquiry should be conducted to determine whether any circumstances peculiar to the

case indicate the presence of an actual conflict of interest.” Banks, 121 Ill. 2d at 44.

¶ 17 In People v. Spreitzer, 123 Ill. 2d 1 (1988), our supreme court clarified that the appellate

analysis of a potential conflict of interest differs depending on whether the defendant raised the

issue in a timely manner at the trial level. Where a potential conflict is brought to the court’s

attention at an early stage of the proceedings, the court must either appoint separate counsel to

represent the defendant or take adequate measures to evaluate whether the risk of conflict requires

-5- 2019 IL App (2d) 170523-U

separate counsel. Spreitzer, 123 Ill. 2d at 18. If the court fails to fulfill that duty, the judgment

may be reversed on appeal without a showing of specific prejudice. Spreitzer, 123 Ill. 2d at 18.

Where, however, the potential conflict of interest is not brought to the court’s attention, a defendant

may obtain reversal of the judgment only by demonstrating that counsel labored under an actual

conflict that adversely affected his or her performance at trial. Spreitzer, 123 Ill. 2d at 18.

¶ 18 A trial court is not obligated to sua sponte raise the issue of a potential conflict. This is

made clear by People v. Hardin, 217 Ill. 2d 289 (2005), a case which is analogous to the matter at

bar. The defendant in Hardin, who was represented at trial by assistant public defender Jameson

Kunz, was convicted of various offenses. Hardin, 217 Ill. 2d at 291, 295. The defendant

subsequently filed a pro se postconviction petition alleging ineffective assistance of trial counsel.

Hardin, 217 Ill. 2d at 295. The court appointed assistant public defender Ricky Holman to

represent the defendant in connection with that petition, even though the defendant expressed a

desire to be represented by an attorney who was not affiliated with the public defender’s office.

Hardin, 217 Ill. 2d at 295-96. Holman filed an amended petition on the defendant’s behalf that

included claims that Kunz provided ineffective assistance at trial. Hardin, 217 Ill. 2d at 296. The

defendant then sent letters to both Holman and the court expressing his distrust of the public

defender’s office and articulating his displeasure with Holman’s representation. Hardin, 217 Ill.

2d at 296-97. The court nevertheless granted the State’s motion to dismiss the petition, and the

defendant appealed. Hardin, 217 Ill. 2d at 298.

¶ 19 On appeal, the defendant argued that “the trial court should have conducted an inquiry to

ensure that there was no conflict of interest between his postconviction public defender and his

trial public defender.” Hardin, 217 Ill. 2d at 299. Our supreme court rejected the notion that

Banks required the trial court to conduct a sua sponte investigation as to whether Holman had a

-6- 2019 IL App (2d) 170523-U

conflict of interest. Hardin, 217 Ill. 2d at 301. The court emphasized that, pursuant to Spreitzer,

Banks’ requirement to conduct a case-by-case inquiry arises only where the trial court is apprised

of the potential conflict. Hardin, 217 Ill. 2d at 302. The court clarified that a trial court’s duty in

this respect will arise where the defendant “present[s] the gist of such a conflict” by “sketch[ing],

in limited detail, a picture of how the working relationship between the public defenders created

an appearance of impropriety.” Hardin, 217 Ill. 2d at 303. Factors that are relevant in that regard

include (1) “whether the two public defenders were trial partners in the defendant’s case,” (2)

“whether they were in hierarchical positions where one supervised or was supervised by the other,”

and (3) “whether the size, structure, and organization of the office in which they worked affected

the closeness of any supervision.” Hardin, 217 Ill. 2d at 303. Applying these rules to the facts at

hand, the court affirmed the second-stage dismissal of the defendant’s petition, refusing to

“sanction a fishing expedition to allow the defendant to cloud Holman’s performance.” Hardin,

217 Ill. 2d at 305.

¶ 20 Hardin is dispositive here. At the trial level, defendant never questioned whether Facklam

had a conflict of interest. Consequently, the court had no duty to explore that issue sua sponte.

On appeal, defendant does not contend that Facklam labored under an actual conflict of interest.

Thus, there is no basis to disturb the judgment dismissing defendant’s supplemental petition.

Although defendant is correct that the record does not reflect the organizational structure of the

Lake County public defender’s office or the particular working relationships between Facklam and

the other assistant public defenders who previously represented defendant, Hardin is clear that it

was defendant’s burden to present that information to the court.

¶ 21 Defendant mentions that assistant state’s attorney DeMartini raised an issue in September

2013 as to whether assistant public defender Schroeder might have a conflict of interest under

-7- 2019 IL App (2d) 170523-U

similar circumstances. In response to the prosecutor’s concerns, Judge Bridges appointed conflict

counsel. Defendant’s first conflict counsel moved out of state, and the replacement conflict

counsel was discharged upon the termination of the public defender’s “conflict contract.” By the

time Facklam filed the supplemental petition on defendant’s behalf in February 2017, a different

prosecutor, defense attorney, and judge were assigned to the case. Under those circumstances, the

prior inquiry regarding Schroeder does not change our opinion that it was defendant’s burden to

raise the issue of Facklam’s potential conflict in the trial court. Accordingly, defendant is not

entitled to the remand that he requests.

¶ 22 B. Alleged Failure to Consider All Postconviction Issues

¶ 23 As explained above, in September 2013, Schroeder filed a postconviction petition on

defendant’s behalf advancing one claim: ineffective assistance of trial counsel for failing to

investigate defendant’s mother as a potential character witness. In February 2017, Facklam filed

a supplemental petition on defendant’s behalf alleging four claims, none of which related to

defendant’s mother. The State moved to dismiss the supplemental petition, the court granted that

motion, and defendant appealed that order.

¶ 24 For his second issue on appeal, defendant argues that, because neither the State nor the

court addressed the claim that Schroeder raised in September 2013, we should “remand the matter

so that issue can be addressed.” Defendant asks us to “retain jurisdiction so that an adverse ruling

on the outstanding claim may be appealed.”

¶ 25 In opposing defendant’s request for a remand on this basis, the State contends that “[t]here

is absolutely no indication in the record that Attorney Facklam intended to incorporate” the subject

claim into the supplemental petition. According to the State, even if the claim “somehow remained

-8- 2019 IL App (2d) 170523-U

viable,” it lacks merit, given that the proposed testimony of defendant’s mother would not have

changed the result of trial.

¶ 26 Defendant’s argument depends on the assumption that the claim that Schroeder raised in

September 2013 was “lost in the procedural morass of this case” as opposed to abandoned. The

record shows otherwise. Facklam spent more than a year investigating defendant’s case before

filing the supplemental petition in February 2017. At various court appearances during that time,

Facklam informed the court that he “reviewed all of the transcripts,” consulted with defendant,

and interviewed witnesses, some of whom resided out-of-state. Facklam clearly conducted a

thorough inquiry with defendant’s input.

¶ 27 The record also confirms that Facklam was aware of the procedural history of defendant’s

postconviction proceedings, including the fact that Schroeder filed a petition on defendant’s behalf

in September 2013. For example, when Facklam requested a continuance in February 2016 to

proceed with his investigation, the court engaged in the following colloquy with him:

“THE COURT: All right. I’ll give you 90 days. But let’s see if we can have

something done because this was filed in ’13, so.

MR. FACKLAM: Just so the Court is aware, I’ve been on the case since September

or November.

THE COURT: Was somebody else from your office on it before that or a private

attorney?

MR. FACKLAM: It was Liz Schroeder when it first got filed, then it went to a

conflict attorney, and then got reassigned to me late 2015.”

During another appearance, again in response to the court’s concerns about how long it was taking

to complete the investigation, Facklam acknowledged the existence of the September 2013

-9- 2019 IL App (2d) 170523-U

petition. Thus, there is no merit to defendant’s suggestion that the claim that Schroeder raised got

“lost in the procedural morass.”

¶ 28 The record instead supports a conclusion that Facklam chose not to raise this claim in the

supplemental petition. Defendant stresses that Facklam styled the pleading as “supplemental,” as

if that implied that Facklam did not intend to abandon the claim that Schroeder raised. At the

beginning of the supplemental petition, however, Facklam wrote that such petition was meant to

supplement defendant’s “previously filed pro se Petition for Post-Conviction Relief”—i.e., the

petition that defendant filed in August 2009. Nowhere in the supplemental petition or during the

hearing on the State’s motion to dismiss that petition did Facklam express an intent to preserve the

claim that Schroeder raised in September 2013.

¶ 29 In support of his request for a remand, defendant notes that several of his claims in the

supplemental petition were meritless from the outset because they were procedurally defaulted.

Be that as it may, the record belies defendant’s suggestion that any claim fell through the cracks.

Defendant thus is not entitled to a remand on this basis.

¶ 30 C. Ineffective Assistance of Counsel: Bill of Particulars

¶ 31 Defendant finally argues that the order granting the State’s motion to dismiss the

supplemental petition should be reversed, and the matter remanded for a third-stage evidentiary

hearing, because the court improperly relied on matters outside of the record. Defendant focuses

his argument on the second claim that he raised in his supplemental petition: ineffective assistance

of trial counsel for failing to investigate defendant’s case in support of a motion for a bill of

particulars to narrow down the dates of the offenses alleged in the indictment. According to

defendant, in ruling on this claim, the court improperly relied on its own familiarity with one of

the trial attorneys, Bailey, and inappropriately questioned Facklam about Bailey’s legal

- 10 - 2019 IL App (2d) 170523-U

experience. Defendant maintains that his claim that Bailey conducted an inadequate investigation

raised factual issues that required an evidentiary hearing.

¶ 32 The State responds that defendant failed to make a substantial showing of a denial of

constitutional rights, given that the result of trial would have been the same even had defendant’s

counsel conducted a more thorough investigation.

¶ 33 The following additional background is necessary to understand the parties’ arguments. In

April 2006, defendant was charged by indictment with two counts of predatory criminal sexual

assault of a child. Count I alleged that defendant placed his penis in the victim’s mouth, while

count II alleged that he placed his finger in her vagina. The State alleged that both offenses

occurred “on or between” April 5, 2005, and April 5, 2006. In July 2006, defendant was indicted

on six additional counts of predatory criminal sexual assault of a child pertaining to the same

victim. The State alleged that each of these offenses occurred between April 5, 2005, and April 5,

2006. Count III alleged that defendant placed his penis in the victim’s vagina. Counts IV through

VIII, which were identical to each other and to count II, alleged that defendant placed his finger in

the victim’s vagina.

¶ 34 Prior to trial, defendant filed a motion for a bill of particulars and a motion to dismiss the

indictment. In the motion for a bill of particulars, defendant complained of the lack of specificity

in the indictment relating to the dates of each offense. In the motion to dismiss, he complained

that counts II and IV through VIII were indistinguishable from one other. At the hearing on the

motions, the prosecutor explained that the indictment was based on information obtained from

both the victim and defendant. Specifically, the victim told investigators that defendant put his

finger inside her vagina “multiple times,” and defendant told the police that he put his hands down

the victim’s pants “not more than five times.” The court ordered the State to answer the bill of

- 11 - 2019 IL App (2d) 170523-U

particulars to distinguish the conduct at issue in counts II and IV through VIII. The court reserved

ruling on the motion to dismiss.

¶ 35 In its “response to motion for a bill of particulars and motion to dismiss indictment,” the

State clarified that count IV related to conduct that occurred “while on the couch” and that counts

V through VII related to conduct that occurred “while in bed.” The State agreed to dismiss count

VIII. When the matter returned to court, defendant argued that the State’s response did not

sufficiently differentiate the conduct at issue in the various counts. The court ordered the State to

file an amended bill of particulars to further distinguish the counts.

¶ 36 The State filed a “first amended response to motion for a bill of particulars and motion to

dismiss indictment and motion to reconsider ruling.” The State argued that it had alleged the

offenses with as much specificity as possible. Nevertheless, the State explained that it had recalled

the grand jury, which clarified that the conduct related to counts II and IV through VII occurred

on five different dates between April 5, 2005, and April 5, 2006. After reviewing the relevant case

law, and in light of the State’s clarifications, the court denied defendant’s motion to dismiss the

indictment.

¶ 37 The matter proceeded to trial. The court granted a directed verdict in defendant’s favor on

counts III, VI, and VII. The jury found defendant guilty as to counts I, IV, and V but not guilty

as to count II. The court entered judgments in defendant’s favor notwithstanding the verdict on

counts IV and V. The court sentenced defendant to 24 years in prison on count I.

¶ 38 In his supplemental postconviction petition, one of defendant’s claims was ineffective

assistance of trial counsel for “fail[ing] to investigate defendant’s case in support of their motion

for a bill of particulars asking the State to further narrow down the alleged dates of offense in the

indictment.” In support of this claim, defendant noted that certain of the victim’s statements that

- 12 - 2019 IL App (2d) 170523-U

were admitted at trial suggested that the sexual assaults occurred at 2320 Gilead Avenue,

Apartment #1, in Zion, where defendant was living at the time of his arrest. Defendant also cited

the following exchange at trial between defense counsel and the victim’s mother:

“Q. Did you use to live with [defendant]?

A. Yes.

Q. Did you live with him in the house in Zion?

Q. For how long?

A. Going on a year.”

According to defendant, this portion of the victim’s mother’s testimony suggested that she lived

with both defendant and the victim at 2320 Gilead Avenue, Apt. #1 “from sometime in 2005 up

until defendant’s arrest in April 2006.”

¶ 39 In connection with the postconviction investigation, however, the defense allegedly

“uncovered” evidence that defendant lived at this address for less than two months before he was

arrested. Specifically, records submitted with the petition showed that (1) defendant was

incarcerated in California from May 2, 2005, until July 5, 2005; (2) he resided at a different

location in Zion from October 1, 2005, until February 2006; and (3) on February 23, 2006, he

signed a lease with the victim’s mother for the apartment where the sexual assaults allegedly

occurred.

¶ 40 In light of this information, defendant alleged that his trial counsel “should have

investigated this case in order to submit evidence in support of its motion for a bill of particulars

to have the state narrow down when these acts allegedly occurred.” According to defendant:

- 13 - 2019 IL App (2d) 170523-U

“Without this evidence, the Court allowed the State’s answer to the bill of particulars to

stand and did not grant the defendant’s motion to narrow the dates. Had the defense

presented evidence that the defendant did not live at that address in Zion between April 5,

2005 and late February 2006, the motion would have been granted. This is because it is

impossible that these acts could have occurred in the location the complainant stated (2320

Gilead Ave., Apt. 1, Zion, IL) for more than 10 of the 12 months that the State included as

the range for the dates of offense contained within the indictment. Additionally, the

evidence [submitted with the postconviction petition] would have impeached [the victim’s

mother’s] testimony that she had lived with the defendant and the complainant at the house

on Gilead in Zion for ‘going on a year.’ ***

The defendant was prejudiced and denied effective assistance of trial counsel when

they did not conduct any investigation seeking to show that the abuse could not have been

going on for a year. Any evidence that defendant had been abusing the complainant for

more than approximately 6 weeks at the house located at 2320 Gilead Ave., Apt. #1 in

Zion, IL could have been disproved through substantial evidence that it would have been

impossible for that the abuse [sic] to have occurred for more than approximately 6 weeks

at that address. Had this been done, it would have cast doubt on all of the complainant’s

allegations made at trial through the [section] 115-10 witnesses and affected the ultimate

outcome.”

¶ 41 In its motion to dismiss the supplemental petition, the State argued that this claim was

waived due to not being raised on direct appeal. Additionally, the State maintained that defendant

failed to “articulate how a reduced date range would have benefited him,” because (1) the

indictment alleged that the sexual assaults took place between April 2005 and April 2006, and (2)

- 14 - 2019 IL App (2d) 170523-U

defendant’s proposed evidence would have shown that he and the victim resided together from

February 23 to April 5, 2006. Thus, the State argued, the information that defendant submitted

with his petition “provides no benefit for the defense but actually supports the State’s theory of the

case.” Moreover, the State maintained that there were three problems with defendant’s claim that

a narrowed date range could have been used to impeach the victim’s mother: (1) the mother

provided no substantive information at trial about defendant’s criminal conduct, so impeaching

her “would not be significant,” (2) the portion of the mother’s testimony that defendant cited was

“unclear” as to exactly where she lived and when, and (3) “any reduction in the indicted date range

would have helped the State’s case, not [defendant’s].”

¶ 42 During the hearing on the State’s motion to dismiss the supplemental petition, the court

engaged in the following colloquy with defense counsel, which defendant now argues was

improper:

“THE COURT: Mr. Bailey was the primary attorney on this case; is that correct?

MR. FACKLAM: Yes.

THE COURT: And at the time he tried this case in 2008 [sic], he had been an

attorney practicing as a supervisor within the Lake County public defender’s office for how

long approximately?

MR. FACKLAM: I don’t know. He started in the 1990s.

THE COURT: Fair to say 15 years as an attorney?

MR. FACKLAM: Probably around there.

THE COURT: All right. And Mr. Bailey, at the time he tried this case, fair to say

he had tried at least 20 cases to jury trial?

- 15 - 2019 IL App (2d) 170523-U

MR. FACKLAM: Sure. I assume so. Neither the State nor the defense attached

any type of affidavit from Mr. Bailey for the court to consider at this juncture.

THE COURT: Understand.

MR. FACKLAM: And obviously the court isn’t supposed to determine whether

Mr. Bailey is potentially more credible than Mr. Garcia-Cordova at this stage.”

The court granted the State’s motion to dismiss the supplemental petition.

¶ 43 Defendant criticizes the court’s comments but does little to defend the merits of his claim

that his trial counsel provided ineffective assistance in connection with the investigation relating

to the motion for a bill of particulars. As previously mentioned, we owe no deference to the court’s

reasoning but instead review defendant’s claim independently. Henry, 2016 IL App (1st) 150640,

¶ 39. Even if the court’s questions were inappropriate, that alone would not compel us to advance

the matter for third-stage proceedings. Instead, the issue is whether defendant met his burden to

make a “substantial showing of a constitutional violation.” Domagala, 2013 IL 113688, ¶ 35.

Specifically, defendant must make a substantial showing that “(1) his attorney’s actions constituted

errors so serious as to fall below an objective standard of reasonableness, and (2) absent these

errors, there was a reasonable probability that his trial would have resulted in a different outcome.”

Henry, 2016 IL App (1st) 150640, ¶ 42. Given that defendant must satisfy both prongs, we need

not consider whether defense counsel was deficient if defendant did not suffer prejudice. Henry,

2016 IL App (1st) 150640, ¶ 53.

¶ 44 Defendant failed to make a substantial showing that the result of his trial would have been

different had his counsel uncovered the evidence that was later included with the supplemental

petition. The indictment alleged that defendant sexually assaulted the victim sometime between

April 5, 2005, and April 5, 2006. “The date of the offense is not an essential factor in child sex

- 16 - 2019 IL App (2d) 170523-U

offense cases”; “[a]s long as the crime occurred within the statute of limitations and prior to the

return of the charging instrument, the State need only provide the defendant with the best

information it has as to when the offenses occurred.” People v. Guerrero, 356 Ill. App. 3d 22, 27

(2005).

¶ 45 Defense counsel argued at the hearing on the State’s motion to dismiss the supplemental

petition that the materials accompanying the petition would have supported an alibi defense. The

documentation that defendant submitted, however, confirmed that defendant resided with the

victim between February 23 and April 5, 2006, thus giving him ample opportunity to commit the

charged offenses. We note that the trial evidence showed that defendant admitted to police officers

on April 4, 2006, that he had sexually assaulted the victim as recently as three weeks earlier. That

was consistent with what the victim told an investigator. Pursuing the bill of particulars with a

view toward an alibi defense would not have changed the result of trial, as the materials that

defendant submitted with his supplemental petition did not support an alibi defense.

¶ 46 Defendant also alleged that the documents attached to his supplemental petition would

have been valuable to impeach the victim’s mother with respect to how long defendant had resided

at the location where the sexual assaults allegedly occurred. The victim’s mother did not implicate

defendant in any criminal activity, so there was no reason to impeach her testimony. To the extent

that impeachment on this particular point could have helped the defense, we note that Sergeant

Alan Lother of the Zion police department testified that defendant told him on April 4, 2006, that

he had lived in Zion for approximately a year but that he had lived in his current apartment for

only two or three months. Thus, the jury was already aware that defendant did not live in this

location very long before the victim’s allegations surfaced. Under these circumstances, and

considering that we determined on direct appeal that the evidence against defendant was

- 17 - 2019 IL App (2d) 170523-U

“overwhelming” (Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 75), defendant failed to make

a substantial showing of a constitutional violation. Accordingly, the court properly granted the

State’s motion to dismiss the supplemental petition.

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we affirm the judgment of the Circuit Court of Lake County.

¶ 49 Affirmed.

- 18 -