People v. Guerrero

Appellate Court of Illinois

People v. Guerrero

2022 IL App (1st) 210400, 224 N.E.3d 196

Appellate Court of Illinois·Decided July 27, 2022·No. 1-21-0400·Published·Cited by 13 cases

Opinion

2022 IL App (1st) 210400 No. 1-21-0400 Third Division July 27, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 12 CR 18726 (02) ) DANIEL GUERRERO, ) ) The Honorable Defendant-Appellant. ) William Raines, ) Judge Presiding.

____________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Burke and McBride concurred in the judgment and opinion.

OPINION

¶1 In the instant appeal, defendant Daniel Guerrero challenges the trial court’s decision

denying his postconviction petition at the first stage. This is the second time this defendant has

appealed to this court. In his prior appeal, which was a direct appeal, defendant argued (1) that

certain remarks made by the prosecutor during the State’s rebuttal closing argument constituted

prosecutorial misconduct and (2) that his sentence is excessive when compared to the lesser No. 1-21-0400

sentence of a codefendant. We affirmed his conviction and sentence. See People v. Guerrero,

2020 IL App (1st) 172156.

¶2 In this appeal, defendant argues that his postconviction petition established the gist of his

claim that the imposition of a 45-year sentence for his crime of murder in the first degree

violates the Illinois Constitution’s proportionate penalties clause (Ill. Const. 1970, art. 1, § 11)

as applied to him. The trial court dismissed defendant’s postconviction petition. For the

following reasons, we affirm the trial court’s decision.

¶3 BACKGROUND

¶4 The State’s evidence at trial established that, on May 29, 2010, at midnight, a group of

men, who belonged to the same gang, approached two men on a street because one of the two

men was wearing a red shirt, which was the color of a rival gang. One of the two men, Mario

Gallegos, was able to escape, and he testified at trial as an eyewitness. The other man, Alan

Oliva, who was wearing the red shirt, was beaten and stabbed to death. Gallegos identified

defendant as the first person to strike the victim. Gallegos testified that defendant swung a

baseball bat at the victim, thereby knocking the victim to the ground, whereupon the other men

beat and stabbed the victim until he stopped moving. The victim later died from his wounds.

Defendant was 22 years and two months old at the time of the killing.

¶5 On April 6, 2017, defendant was convicted of gunrunning. See 720 ILCS 5/24-3A(a) (West

2014) (“A person commits gunrunning when he or she transfers 3 or more firearms in violation

of any of the paragraphs of Section 23-4 of this Code.”). The underlying events giving rise to

this conviction occurred in April 2012, almost two years after the killing of Oliva. Defendant

2 No. 1-21-0400

was sentenced to seven years and seven months with the Illinois Department of Corrections

(IDOC) for this conviction.

¶6 Defendant’s murder trial was held about two months after defendant’s conviction for

gunrunning. On June 8, 2017, a jury found defendant guilty of first degree murder. On July 11,

2017, the trial court, after considering the aggravating and mitigating factors, sentenced

defendant to 45 years with the IDOC. The trial court considered the defendant’s criminal

history, his social history, his education, his background, his family history, and his physical

health. More specifically, it considered defendant’s participation in gang involvement in

aggravation, as well as defendant’s role as “leader of the pack”, as he was armed with the bat

that struck the first blow, allowing the others to continue the attack. The court also considered

in aggravation the fact that defendant continued being involved in gang activity even after the

murder, as evidenced by the gunrunning conviction just a couple months prior to the murder

trial. In sum, “the defendant’s primary roll [sic] in this incident, this senseless killing of

certainly an innocent individual Mr. Oliva, who had a bright future in front of him require[d]

[in] the Court’s discretion a sentence greater than the minimum, and greater commensurate

with the other individuals based on their level of participation.”

¶7 On August 10, 2017, defendant filed a notice of appeal. 1 On June 4, 2020, this court issued

its decision on defendant’s direct appeal. We held that the State’s remarks during the trial did

not constitute error and certainly did not rise to the level of clear and obvious error as required

1 Our earlier opinion in this matter (Guerrero, 2020 IL App (1st) 172156) incorrectly stated that the notice of appeal was filed on July 11, 2017. 3 No. 1-21-0400

for reversal under the plain error doctrine. We also held that defendant’s sentence was not

excessive, as defendant was not similarly situated as his codefendants because he was the

leader of the pack and, after the murder, was convicted of another crime.

¶8 On December 30, 2020, defendant filed his pro se postconviction petition alleging that (1)

his 45-year sentence was unconstitutional under the eighth amendment (U.S. Const., amend.

VIII), (2) his trial counsel was ineffective in failing to object to the State’s use of certain

testimony, and (3) the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1,

2012). 2 On March 2, 2021, the trial court issued a written order summarily dismissing the

petition as frivolous and without merit. Subsequently, defendant filed a notice of appeal that

substantially complied with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017), which

sets forth notice requirements for incarcerated individuals filing documents with a court. 3

2 Rule 431(b) reads as follows: “The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s decision not to testify when the defendant objects. The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012). 3 Rule 12(b)(6) reads as follows: “Manner of proof. Service is proved: *** *** in case of service by mail by a self-represented litigant residing in a correctional facility, by certification under section 1-109 of the Code of Civil Procedure of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). In this case, defendant did not note the time of the deposit. However, defendant’s failure to adhere to this formality is not fatal to the sufficiency of his notice. See, e.g., People v. Smith, 228 Ill. 2d 95, 105 (2008); People v. Humphrey, 2020 IL App (1st) 172837, ¶¶ 18-21. 4 No. 1-21-0400

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