People v. Jubeh

2020 IL App (1st) 181658-U

• Court: Appellate Court of Illinois
• Decided: December 3, 2020
• Docket: 1-18-1658
• Status: Unpublished

Opinion

2020 IL App (1st) 181658-U

FOURTH DIVISION December 3, 2020

No. 1-18-1658

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 FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) ) Nos. 09 CR 3319 MAZEN JUBEH, ) 09 CR 3120 ) Defendant-Appellant. ) ) ) Honorable ) William G. Lacy, ) Judge Presiding. ______________________________________________________________________________

JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: Affirming the judgment of the circuit court of Cook County which denied defendant’s second amended motion to withdraw his guilty pleas where his claims of ineffective assistance of counsel fail.

¶2 Defendant Mazen Jubeh appeals the order of the circuit court of Cook County denying

his second amended motion to withdraw his guilty pleas due to counsel’s alleged ineffectiveness.

On appeal, defendant argues that the trial court erred in denying this motion because his pleas 1-18-1658

were not knowing, intelligent, or voluntary. Specifically, defendant maintains that his motion

demonstrated that his attorney was ineffective for 1) failing to disclose favorable fingerprint

evidence, 2) failing to adequately investigate his claims that the complainants shot him while he

was standing, unarmed, outside their apartment building, and 3) pressuring him to plead guilty

during an anxiety attack. According to defendant, absent these actions by counsel, he would

have rejected the plea offers and proceeded to trial. Based on the reasons which follow, we

affirm the judgment of the trial court.

¶3 BACKGROUND

¶4 The facts surrounding defendant’s guilty pleas are uncontested. On January 18, 2009, at

approximately 8 or 9 p.m., Amanda Collier was at her home on the 4400 block of West Cortez in

Chicago with her sister Angelica Rios, Walton Garcia, and her son. Defendant, wearing a mask

and brandishing a handgun, forcibly entered Collier’s apartment. Garcia shot defendant, who

then fled the scene. Collier telephoned 911 and police responded to that location. Collier had

known defendant for two years, but she did not give him permission or authority to enter her

residence. Two firearms were found at the scene and tested for fingerprints. One suitable latent

fingerprint was recovered from one of those weapons and did not match defendant’s fingerprint.

Defendant also had telephoned Collier on December 28, 2008, and January 28, 2009, and

threatened her with future bodily harm on both occasions. On August 10, 2011, defendant

returned to Collier’s residence and pounded on her door.

¶5 Defendant was charged with two counts of home invasion, one count of armed violence,

one count of residential burglary, and one count of stalking. On May 3, 2012, defendant pled

guilty to one count of home invasion with a firearm and one count of stalking. The trial court

found defendant’s pleas to be knowing and voluntary. The trial court entered judgment on the

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pleas and sentenced defendant to the minimum term of imprisonment of 21 years for the home

invasion with a firearm, and to the minimum term of imprisonment of 1 year for the stalking,

with the sentences to run consecutively.

¶6 Defendant subsequently filed a pro se motion to withdraw his guilty pleas and vacate his

sentence. He alleged that his trial counsel was “very inadequate” and the plea was involuntary

and a result of “coercion.” Thereafter, defendant, through retained post plea counsel, filed an

amended motion to withdraw his guilty pleas. The amended motion alleged that defendant was

coerced into pleading guilty by his trial attorney. Specifically, defendant contended that “he was

misled into thinking that he ha[d] no chance at trial and that he would get the maximum of 45

years at 85% if he went to trial.” He also alleged that he wanted his trial counsel to “hire an

expert to examine the trajectory of his bullet wounds to show the vantage point of the shooter

victim in this matter.” Additionally, defendant wanted his trial counsel “to have the firearm

found at the scene, that is allegedly to be the Defendant’s, examined for fingerprint [sic] of the

victims.” All of these requests, however, “went unanswered.”

¶7 As required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), postplea counsel

attached a certificate to the amended petition. Postplea counsel’s certificate did not state on its

face that counsel examined the entire trial court file and report of proceedings of the plea of

guilty.

¶8 On October 1, 2012, the State filed a response to defendant’s motion, asserting that

defendant’s trial counsel “properly took into consideration all of the defendant’s wishes for

pretrial investigation, and only after their investigation was complete did they determine that all

avenues had been exhausted.”

¶9 On November 1, 2012, the trial court conducted a hearing on the amended motion to

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withdraw the guilty pleas, at which time defense counsel clarified the motion only involved the

home invasion charge. During the hearing, defendant testified it was his belief that if trial

counsel conducted his requested investigations, the evidence would have demonstrated that he

did not have a handgun with him, and that he was shot from the third floor while he stood

outside. Defendant also testified that he only pled guilty because counsel claimed she had

nothing to argue in his defense, and he would most likely be found guilty and be sentenced to 45

years’ incarceration if he went to trial.

¶ 10 The State presented testimony from defendant’s trial counsel, Rosa Silva, who denied

defendant’s allegations, maintained that she never forced defendant to plead guilty, and testified

that he decided to plead guilty on his own accord. She also testified she advised defendant that,

given the facts of his case, he would most likely be found guilty and that he would face a higher

sentence than what he was being offered through the plea agreement. Counsel further testified

that she had spoken with two doctors who informed her it would not be possible for them to

establish the trajectory of the bullets that struck defendant. Specifically, counsel spoke with Dr.

Sullivan, defendant’s surgeon, who stated he would not be able to give an opinion because he did

not determine the trajectory at the time of defendant’s surgery and he would not be able to

reconstruct the wounds to determine the trajectory. Dr. Orellana, defendant’s emergency room

physician, also stated he could not opine regarding the trajectory of the bullets. Silva

additionally explained that she prefers not to have firearms checked for fingerprints as a matter

of trial strategy.

¶ 11 The State also presented the testimony of Marcos Reyes, Silva’s supervising attorney.

Reyes testified he met with defendant on numerous occasions and they discussed trial strategy.

According to Reyes he informed defendant that he had hired experts in the past to determine the

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trajectory of bullets and that “we could try to look into that in this case.” Reyes further testified

that he and Silva looked into hiring an expert in bullet trajectories and also examined defendant’s

medical history to determine whether it was a feasible option, but ultimately decided it was not.

¶ 12 Following arguments from counsel, the trial court denied defendant’s motion, finding “no

basis in fact or law to be allowed to withdraw this guilty plea.”

¶ 13 On November 30, 2012, defendant filed a timely notice of appeal to this court. We

concluded that the record was unclear as to whether postplea counsel actually examined the

entire record as required under Rule 604(d) because the certificate did not state on its face that

counsel examined the entire trial court file and report of proceedings of the plea of guilty.

Accordingly, because postplea counsel failed to strictly comply with Rule 604(d) we remanded

the matter to the trial court for: (1) the filing of a proper Rule 604(d) certificate; (2) the

opportunity to file a new motion to withdraw the defendant’s guilty plea and/or reconsider

sentence, if counsel determines that a new motion is necessary; and (3) a new motion hearing.

People v. Jubeh, 2015 IL App (1st) 130067-U, ¶ 26.

¶ 14 On remand, defendant, with the assistance of private counsel, filed a second amended

motion to withdraw his guilty pleas. In the motion, he incorporated those claims presented in his

amended motion to withdraw. He also requested the trial court consider additional evidence

attached to his motion which included telephone records and Western Union records which

defendant alleged demonstrated his theory of defense that Collier was extorting him and he was

shot after “this pattern of extortion” was “coming to an end.”

¶ 15 In response, the State incorporated its previous arguments on the motion to withdraw and

maintained defendant’s new exhibits did not entitle him to relief because they were only relevant

to the stalking conviction and they lacked proper foundation or an accompanying affidavit to

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establish their authenticity.

¶ 16 The trial court then conducted a hearing on defendant’s second amended motion to

withdraw his guilty pleas. Defendant did not offer any new testimony and requested the trial

court incorporate the testimony previously presented. After considering the oral and written

arguments on the second amended motion to withdraw, the prior pleadings and the initial motion

to withdraw, as well as the transcript of the hearing on that particular motion held on May 3,

2012, the trial court denied the motion and indicated it was standing on its previous ruling. The

trial court incorporated its original ruling on the amended motion to withdraw in denying the

second amended motion to withdraw. This appeal followed.

¶ 17 ANALYSIS

¶ 18 On appeal, defendant argues that the trial court erred in denying his second amended

motion to withdraw his guilty pleas because his pleas were not knowing, intelligent, or

voluntary. Specifically, defendant maintains that his motion to withdraw demonstrated that his

attorney was ineffective for 1) failing to disclose the favorable fingerprint evidence, 2) failing to

adequately investigate his claims that the complainants shot him while he was standing,

unarmed, outside their apartment building, and 3) pressuring him to plead guilty during an

anxiety attack. According to defendant, absent these actions by counsel, he would have rejected

the plea offers and proceeded to trial.

¶ 19 Prior to addressing the merit of defendant’s claims, we address the issue of forfeiture.

For the first time on appeal, defendant argues that his counsel pressured him to plead guilty

during an anxiety attack. As our supreme court recently observed, upon appeal any issue not

raised by the defendant in a motion to withdraw the plea of guilty and vacate the judgment

“shall” be deemed forfeited. People v. Sophanavong, 2020 IL 124337, ¶ 22. This is because the

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failure to raise claims of error before the trial court denies the court the opportunity to correct the

error immediately and grant a new trial if one is warranted, wasting time and judicial resources.

People v. McLaurin, 235 Ill. 2d 478, 488 (2009). Along with allowing the trial court to

immediately correct any errors that may have led to the guilty plea, Rule 604(d) ensures that fact

finding takes place and a record is made at a time when witnesses are still available and

memories are fresh. Sophanavong, 2020 IL 124337, ¶ 23 (quoting People v. Evans, 174 Ill. 2d

320, 329 (1996)).

¶ 20 Here, defendant pled guilty in May 2012 and filed a motion to withdraw his guilty pleas.

Defendant, however, did not raise the issue that counsel was ineffective “for pressuring him to

plead guilty while he was in the midst of a mental breakdown” as he now alleges. Then, in

August 2012, defendant was granted leave to file an amended motion to withdraw his guilty

pleas. Again, he did not raise this issue. Upon remand from this court in June 2017, defendant

filed a second amended motion to withdraw his guilty pleas with the assistance of private

counsel. This motion also failed to assert this claim. Accordingly, the record demonstrates this

claim was never raised in the trial court. See id. ¶ 24. Consequently, we find defendant forfeited

this claim and we will not review it on appeal. See id. ¶ 25 (“If Rule 604(d)’s requirement that

the issues be raised in a motion to withdraw the guilty plea or otherwise risk forfeiture is to have

any force, defendant’s failure to raise the issue within 30 days of the imposition of sentence must

be found to be what it is—forfeited.”).

¶ 21 We further find another of defendant’s claims to be forfeited. Defendant contends for the

first time on appeal that counsel was ineffective where she 1) failed to review all discovery

materials, 2) failed to inform him that a police report contained evidence of a fingerprint from

someone other than him on a firearm taken from the scene, and 3) failed to disclose the favorable

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fingerprint evidence to him. As defendant argues, because he was charged with home invasion

while armed, the State had the burden to prove that he possessed a firearm while entering

Collier’s apartment. According to defendant, had he known that someone else’s fingerprint was

on one gun and no identifiable fingerprints were on the other, he could have convincingly argued

at trial that the State lacked any physical evidence tying him to the alleged crime.

¶ 22 In response, the State observes that defendant did not raise these arguments regarding

counsel’s ineffectiveness in the trial court. Although the State did not request, we find that

defendant’s failure to make these specific arguments below warrants forfeiture on appeal. See

id. ¶ 22. In the trial court, defendant asserted in his amended motion to withdraw his guilty pleas

that counsel was ineffective for failing to have the firearms examined for the victim’s

fingerprints. Then, at oral argument on the motion, defense counsel again asserted that counsel

was ineffective for failing to have the firearms examined for fingerprints. A hearing was

conducted where both of defendant’s attorneys were questioned regarding the Illinois State

Police firearms examination report and their decision not to request more testing be done to

determine whether another individual’s fingerprints were on the weapons. The argument raised

in the trial court is markedly different from asserting that counsel was ineffective for failing to

disclose the results of the fingerprint examination to him. As defendant never raised these claims

below, we find defendant’s claim that counsel was ineffective for failing to disclose or inform

him of the fingerprint evidence that was recovered is forfeited. See id. ¶ 25.

¶ 23 We now turn to consider defendant’s final claim of ineffectiveness of defense counsel

related to the guilty pleas. Defendant argues that counsel was ineffective for “failing to discuss

the trajectory of the bullets with a bona fide expert in bullet trajectories” (emphasis added) and

broadly that counsel failed to investigate this claim. Once again, this does not comport with the

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argument raised in the trial court that counsel was ineffective for failing “to hire an expert to

examine the trajectory of his bullet wounds.” Moreover, defendant never argued below that

counsel was ineffective for failing to investigate. Regardless, because these arguments are at

least in the same vein as those raised below, we will address the broader claim that counsel was

ineffective for failing to investigate whether an expert should be hired to testify regarding the

bullet trajectory. See People v. Holmes, 2016 IL App (1st) 132357, ¶ 65.

¶ 24 We review the trial court’s decision to grant or deny a motion to withdraw a guilty plea

for an abuse of discretion. People v. Delvillar, 235 Ill. 2d 507, 519 (2009). An abuse of

discretion will only be found “where the court’s ruling is arbitrary, fanciful, unreasonable, or no

reasonable person would take the view adopted by the trial court.” Id. A defendant does not

have an automatic right to withdraw a guilty plea, but rather must establish a manifest injustice

under the facts was involved. Id. at 520.

¶ 25 A defendant who pleads guilty waives several constitutional rights, including the right to

trial by jury and the right to confront his accusers, and due process of law requires that this

waiver be voluntary and knowing. People v. Williams, 188 Ill. 2d 365, 370 (1999). “If a

defendant’s guilty plea is not voluntary and knowing, it has been obtained in violation of due

process and, therefore, is void.” Id. As stated previously, defendant claims his plea was not

knowing and voluntary due to counsel’s incompetence.

¶ 26 A challenge to a guilty plea alleging ineffective assistance of counsel is subject to the

two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hall, 217 Ill.

2d 324, 334-335 (2005). To establish a claim of ineffective assistance of counsel, a defendant

must demonstrate that 1) counsel’s performance was objectively unreasonable under prevailing

professional norms and 2) the deficient performance prejudiced defendant. People v. Veach,

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2017 IL 120649, ¶ 30. A defendant must satisfy both prongs of the Strickland test to raise a

successful claim for ineffective assistance of counsel, and failure to satisfy either prong

precludes a finding of ineffectiveness. Id. For the reasons which follow, we find defense

counsel’s performance was not objectively unreasonable.

¶ 27 There is a strong presumption that counsel’s action or inaction was a matter of trial

strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). Counsel’s strategic choices are virtually

unchallengeable (People v. Harris, 225 Ill. 2d 1, 49 (2007) (citing Strickland, 466 U.S. at 690))

and generally are not subject to scrutiny under Strickland (People v. Metcalfe, 202 Ill. 2d 544,

562 (2002)). “Moreover, a mistake in trial strategy or an error in judgment by defense counsel

will not alone render representation constitutionally defective.” People v. Peterson, 2017 IL

120331, ¶ 80. Counsel’s strategic decisions will not support a claim of ineffective assistance of

counsel unless counsel’s strategy is so unsound that he or she entirely fails to conduct any

meaningful adversarial testing of the State’s case. People v. Patterson, 217 Ill. 2d 407, 441

(2005).

¶ 28 Even in the context of guilty pleas, “counsel’s strategic decisions are virtually

unchallengeable. [Citation.] Further, the fact that another attorney might have pursued a

different strategy is not a factor in the competency determination.” People v. Palmer, 162 Ill. 2d

465, 476 (1994). When assessing counsel’s performance, a reviewing court is required “to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

(Internal quotation marks omitted.) People v. Ramirez, 2018 IL App (1st) 152125, ¶ 16.

¶ 29 In this instance, defendant maintains counsel was ineffective for failing to investigate his

claim that the bullet trajectory supported his theory of defense that he was shot from above by

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the victim and did not enter her apartment. Based on our review of the record, we find defense

counsel conducted a reasonable investigation of defendant’s claims. Silva testified she discussed

trial strategy with defendant including consideration of the trajectory of the bullets. Specifically,

Silva testified she retained an expert to examine defendant’s medical records and spoke with Drs.

Sullivan and Orellana to determine if they could testify regarding the bullet trajectory.

According to Silva, Dr. Sullivan (defendant’s surgeon) indicated he could not testify regarding

the trajectory of the bullets and that he would not be able to reconstruct the wounds to determine

the trajectory. Dr. Orellana (defendant’s emergency room physician) similarly indicated he

would be unable testify as to the trajectory of the bullets. Based on this information, namely that

the physicians would be unable to reconstruct defendant’s injuries in order to conclusively

determine the trajectory of the bullets, Silva decided not to investigate further. We further

observe that Silva did not testify she would not have pursued this theory of defense. Even

without the testimony of the physicians, the record contains a diagram of the location of

defendant’s wounds and the physicians could have also testified regarding where the bullets

entered and exited defendant’s body. In addition, Silva obtained defendant’s medical records

and the record suggests that these records included a CAT scan of defendant’s wounds.

Accordingly, while Silva did not procure an expert to testify regarding defendant’s theory of

defense, the failure to do so did not preclude her from so arguing at trial.

¶ 30 Based on this record we cannot say that Silva failed to conduct a reasonable investigation

into the bullet trajectory defense. See People v. Makiel, 358 Ill. App. 3d 102, 107 (2005) (the

general rule that attorneys are required to conduct a reasonable investigation in order for their

representation to be considered to be a valid trial strategy); People v. Kokoraleis, 159 Ill. 2d 325,

330 (1994) (lack of investigation is to be judged against a standard of reasonableness given all of

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the circumstances, applying a heavy measure of deference to counsel’s judgments). A general

principle is that a counsel’s decision about whether to present a particular witness is generally a

strategic choice which cannot support a claim of ineffective assistance of counsel. People v.

Richardson, 189 Ill. 2d 401, 414 (2000). Moreover, the failure to call an expert witness is not

per se ineffective assistance, even where doing so may have made the defendant’s case stronger,

because the State could always call its own witness to offer a contrasting opinion. See People v.

Hamilton, 361 Ill. App. 3d 836, 847 (2005). We thus conclude that defendant’s ineffective

assistance argument fails.

¶ 31 As defendant cannot establish ineffective assistance of counsel, he cannot demonstrate

the required manifest injustice necessary to withdraw his guilty plea. See Delvillar, 235 Ill. 2d at

520. The trial court did not abuse its discretion in denying defendant’s guilty plea. We affirm

the trial court’s judgment.

¶ 32 CONCLUSION

¶ 33 For the reasons stated above, the judgment of the circuit court of Cook County is

affirmed.

¶ 34 Affirmed.

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