People v. Montes

2024 IL App (2d) 240032-U

Opinion

2024 IL App (2d) 240032-U No. 2-24-0032 Order filed December 4, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 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 Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-928 ) GILBERTO MONTES, ) Honorable ) Keith A. Johnson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices Jorgensen and Mullen concurred in the judgment.

ORDER

¶1 Held: We agree with appellate counsel that this appeal presents no issue of arguable merit; therefore, we grant counsel’s motion to withdraw and affirm the judgment.

¶2 Defendant, Gilberto Montes, appeals from the denial, following an evidentiary hearing, of

his amended petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2020)) for relief from his conviction of unlawful possession of a controlled substance with

intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2014)). The Office of the State Appellate

Defender was assigned to represent defendant in this appeal but now moves to withdraw, claiming 2024 IL App (2d) 240032-U

that there are no arguably meritorious issues for appeal. For the reasons below, we grant the motion

and affirm the denial of defendant’s amended postconviction petition.

¶3 I. BACKGROUND

¶4 Defendant was indicted on a single count each of unlawful possession of a controlled

substance (720 ILCS 570/402(a)(2)(D) (West 2014)) and unlawful possession of a controlled

substance with intent to deliver. Before trial, defendant moved to quash his arrest and suppress

evidence. In the motion, he alleged that, while lawfully operating his vehicle at Indian Trail Road

and Farnsworth Street in Aurora, he was stopped by members of the Aurora Police Department

and the Department of Homeland Security (DHS). He was “asked for an [sic] identification and

was told there was a warrant for his arrested [sic] for selling marijuana.” The officers searched his

vehicle without a warrant or his consent. They recovered no contraband. They then placed

defendant into a police vehicle, drove to his residence, and searched it without a warrant or his

consent. “Two [k]ilograms and other evidence” were discovered during the allegedly unlawful

arrest and search.

¶5 The trial court held an evidentiary hearing on the motion to quash and suppress. In his

opening statement, defense counsel asserted:

“[Defendant] was stopped by [DHS] prior to him committing any crime or doing anything

unlawful. He was placed into custody, and it’s my understanding that at that point then they

learned that he was an illegal alien, and he was placed into custody for that. That’s really

not one of the issues in the case at this point, but I guess it is a sub-issue.”

Counsel proceeded to assert that the searches of defendant’s vehicle and home were unlawful

because they were conducted without a warrant or his consent. Counsel did not further address

defendant’s immigration status.

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¶6 In its opening statement, the State remarked that, before approaching defendant, the

officers had information that he was “possibly engaged in narcotics trafficking” and was “in the

country illegally.” The State asserted that defendant consented to the search of his house.

¶7 Defendant testified that, on June 12, 2015, he drove his truck to a Walgreens store. When

he returned to the truck, an individual who said he was with DHS told defendant to stop. Several

other law enforcement officers arrived at the scene. Defendant was told that he was under arrest

for selling marijuana. After the officers searched defendant’s truck, they drove him to his house

and searched it without showing him a warrant or obtaining his consent. On cross-examination,

the State asked defendant whether he had proper documentation to live in the United States.

Defense counsel objected, and the trial court sustained the objection, reasoning that the question

“would require [defendant] to *** make an incriminating statement.”

¶8 Montague Hall, a detective with the Waukegan Police Department, testified that he was a

member of a DHS task force investigating narcotic offenses throughout the Chicago area,

including Aurora. In January 2015, Hall’s task force was investigating defendant and had

information that he “was [selling] narcotics and laundering money back to the Mexican cartel.”

Asked if the task force had any “information about the defendant’s status as it relates to being in

the United States[,]” Hall responded, “Through identifying him, we learned that he was illegal in

the United States.” Hall added that the task force obtained the information about defendant’s

immigration status from an immigration office.

¶9 Hall testified that, on June 12, 2015, he and fellow officer James Lindley approached

defendant in a Walgreens parking lot. Hall spoke with defendant in Spanish. Neither Hall nor

Lindley told defendant to “ ‘stop.’ ” Hall advised defendant that “he was under investigation for

being illegal in the country at the time.” In the meantime, Eric Powell, an “immigration officer,”

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arrived at the scene. Powell confirmed that defendant was in the United States illegally. Defendant

was then taken into custody and informed of his rights under Miranda v. Arizona, 384 U.S. 436

(1966). Hall advised defendant that he was suspected of, among other things, selling cannabis from

his house. Defendant denied that there was any cannabis in his house, and he told the officers that

they “were free to check his house if [they] wanted to.” The officers placed defendant into the back

of a squad car, drove him to his house, and searched it. The officers recovered money, ledgers, and

two kilograms of cocaine. Defendant’s truck was also searched, and cannabis was recovered. Hall

did not ask defendant for written consent for the searches.

¶ 10 During closing argument, defense counsel contended that the State failed to establish that

defendant consented to the search of his house. According to counsel, defendant’s mere statement

that officers could “check his house” (which he made in response to being told that he was

suspected of selling cannabis from the house) was too vague to establish that defendant

“understood his rights, understood he had a right to refuse, and that he did this freely and

voluntarily.” Counsel did not address whether the officers had probable cause to arrest defendant

based on his immigration status.

¶ 11 In denying the motion to quash and suppress, the trial court found that (1) before

approaching defendant, the officers had determined that he was in the United States illegally;

(2) the officers legally stopped defendant and took him into custody; and (3) defendant validly

consented to a search of his home.

¶ 12 After a bench trial, defendant was convicted of possession of a controlled substance with

intent to deliver. In his posttrial motion, defendant argued, inter alia, that both his arrest and the

subsequent search of his home were unlawful and, thus, the trial court erred by denying his motion

to quash and suppress. However, at the hearing on the posttrial motion, defense counsel stated,

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“We had earl[ier] alleged that it was an illegal arrest, but I think the fact that the defendant didn’t

have any immigration status in the United States probably vitiates that argument[.]” Counsel then

argued that the officers did not obtain defendant’s valid consent to search his home. The trial court

denied the posttrial motion.

¶ 13 Defendant appealed, arguing that his arrest was unlawful because the officers had neither

a warrant nor probable cause to believe that he had committed a crime. People v. Montes, 2020 IL

App (2d) 180565, ¶ 33 (Montes I). On the issue of probable cause, defendant noted that the

ostensible justification for his arrest was that he was in the United States unlawfully. Id. Citing

Arizona v. United States, 567 U.S. 387, 407 (2012), defendant argued that illegal presence in the

United States is not a crime and, thus, his immigration status did not furnish probable cause for his

arrest. Montes I, 2020 IL App (2d) 180565, ¶¶ 33-34. In Arizona, the United States Supreme Court

said: “As a general rule, it is not a crime for a removable alien to remain present in the United

States. [Citation.] If the police stop someone based on nothing more than possible removability,

the usual predicate for an arrest is absent.” Arizona, 567 U.S. at 407.

¶ 14 We rejected defendant’s argument, concluding that “[his] actions in the trial court

preclude[d] him from arguing on appeal that the officers lacked probable cause to arrest him for

an immigration violation.” Montes I, 2020 IL App (2d) 180565, ¶ 41. Specifically, we noted that,

because defendant’s written motion to quash and suppress did not specify that his immigration

status was not a valid basis for an arrest, the State was not put on notice of defendant’s position as

to the facts and the law. Id. ¶ 42. We also noted that, in his opening statement at the suppression

hearing, defense counsel indicated that defendant’s immigration status was “not one of the issues

in the case at th[at] point,” but then counsel added the vague qualification that “it [was] a sub-

issue.” Id. ¶ 43. We further noted that, even after hearing testimony that the officers arrested

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defendant after determining that he was in the United States illegally, defense counsel did not

address the legality of defendant’s arrest, but instead confined his argument to whether defendant

consented to the warrantless search of his home. Id. We observed that, “[h]ad defendant properly

set forth the issue in the trial court, the State could have explored it further through more specific

questioning of witnesses both at the hearing on the motion to suppress and at trial.” Id. ¶ 44.

Finally, we noted defense counsel’s concession in the posttrial proceedings that defendant’s

immigration status likely vitiated defendant’s challenge to his arrest. Id. ¶ 45. We agreed with the

State that this concession “amount[ed] to invited error.” Id. “In other words, because counsel

conceded that the officers had probable cause to arrest defendant for being in the country illegally,

defendant [could not] complain on appeal that the trial court erred in denying the motion to

suppress on this basis.” Id.

¶ 15 Defendant alternatively argued on direct appeal that, by failing to properly preserve the

probable cause issue for appellate review, trial counsel provided ineffective assistance of counsel.

Id. ¶ 51. “[T]he question,” we noted, “[was] whether the motion to suppress would have been

granted had defense counsel adequately raised and preserved the issue of whether the officers had

probable cause to arrest defendant for being in the United States illegally.” Id. ¶ 61. We observed

that, while defendant cited Arizona in arguing that the officers lacked the authority to arrest him

for an immigration infraction, on Arizona did not necessarily control because its comment that

immigration status alone cannot furnish probable cause for arrest was directed “only [to] civil

immigration violations, as opposed to criminal immigration violations.” Id. ¶¶ 58-59 (citing

Arizona, 567 U. S. at 414 (stating that there was “no need in this case to address whether reasonable

suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging

a detention”)). We noted case law from other courts indicating that “even local law enforcement

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agencies may enforce criminal immigration-related laws.” Id. ¶ 59. We agreed with defendant that

the record did not show that the officers relied on a criminal immigration violation in arresting

him. Id. However, we noted that the record also did not show that the officers relied on a civil

immigration violation. Id. ¶¶ 59, 61. Rather, the record was silent as to the character of the

violation, and we attributed this silence to defendant’s failure to raise, in the trial court, the issue

of probable cause to arrest. Id. We concluded that defendant’s ineffectiveness claim was “better

suited to collateral proceedings where the record may be adequately developed.” (Internal

quotation marks omitted.) Id. ¶ 61.

¶ 16 Defendant later filed a pro se postconviction petition under the Act. The trial court

appointed counsel to represent defendant in the proceedings. Postconviction counsel filed an

amended petition, claiming that (1) trial counsel was ineffective for failing to raise the issue of

whether defendant’s immigration status supplied probable cause to arrest him and (2) appellate

counsel was ineffective for relying Arizona, which defendant claimed was “distinguishable”

because it “involved state and local officers trying to enforce civil immigration violations,”

whereas here “the two officers who stopped and arrested [defendant] testified that they were

working as task-force officers with [DHS].” The amended petition alleged no facts outside the

record to support its claims.

¶ 17 The State unsuccessfully moved to dismiss the amended petition. Thereafter, the trial court

held an evidentiary hearing, at which defendant presented the testimony of an investigator who

detailed her unsuccessful efforts to locate Hall and Powell.

¶ 18 Defendant also introduced seven exhibits. Exhibit No. 1 was pretrial discovery from the

State, namely DHS and police reports about the investigation and arrest of defendant in June 2015.

The reports indicated that defendant was approached on June 12, 2015, because of his

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“immigration status” or “immigration violations” and that, before the arrest, Powell confirmed that

defendant was “illegally in the United States.” Defendant argued that the reports were relevant

because they did not mention Powell (who, according to Hall, had confirmed defendant’s

immigration status) or indicate that defendant was arrested for a criminal, as opposed to a civil,

immigration violation. Exhibit No. 2 was the State’s response to discovery and the State’s witness

list. Defendant acknowledged that these documents were already part of the common law record

but maintained that they deserved particular attention because they did not mention Powell as a

potential State witness. Exhibit No. 3 was a letter from DHS denying a defense subpoena for

materials related to the June 2015 investigation of defendant. Defendant argued that the letter was

relevant to show “why certain evidence [was not] able to be presented at [the] hearing[.]” Exhibit

No. 4 was DHS’s response to a subsequent defense subpoena. The response included DHS reports

about the June 2015 investigation of defendant. The reports indicated that, during the investigation,

defendant was confirmed to be “in the United States illegally.” Defendant argued that the reports

were relevant because they did not mention Powell or indicate that defendant was arrested for an

immigration crime. Exhibit No. 5 was postsentencing discovery from the State, consisting of a

grand jury transcript, photographs, and defendant’s presentence investigation report. Defendant

acknowledged that the documents were unrelated to defendant’s arrest but supplied “just

background information *** for [the court’s] convenience.” Exhibit No. 6 consisted of excerpts

from the hearing on defendant’s motion to quash and suppress. Exhibit No. 7 was a copy of Montes

I.

¶ 19 The State presented no evidence. In closing argument, postconviction counsel stated in

part:

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“Everything that we know in this case suggests that [defendant] was arrested for

being undocumented, a civil violation. Not that [the officers] had any probable cause to

believe that [defendant] was committing a criminal violation of immigration law. There’s

nothing. And there’s the old saying you can’t get blood from a stone. I can’t make up

evidence and bring it in here to you, Judge. There isn’t any.”

¶ 20 The trial court denied the amended petition. After reviewing the seven defense exhibits,

the court concluded that the record “has not really been further developed” on the issue of trial

counsel’s ineffectiveness. Specifically, defendant did not provide the court “with any additional

information *** to clarify whether [the officers] detained [defendant] for a suspected criminal

violation of immigration law or a suspected civil violation of immigration law.” The court also

determined that appellate counsel was not ineffective for relying on Arizona. The court believed

that counsel cited Arizona “in good faith,” and the court noted that the amended petition “[did] not

cite any different or additional case law or other authority that [counsel] should have cited instead.”

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Appellate counsel moves to withdraw per Pennsylvania v. Finley, 481 U.S. 551 (1987),

and People v. Lee, 251 Ill. App. 3d 63 (1993). In his motion, counsel states that he read the record

and found no issue of arguable merit. Counsel further states that he advised defendant of his

opinion. Counsel supports his motion with a memorandum of law providing a statement of facts,

a list of potential issues, and arguments about why those issues lack arguable merit. We advised

defendant that he had 30 days to respond to the motion. Defendant filed a written response.

¶ 24 Counsel advises us that he considered raising the following issues in this appeal:

(1) whether the trial court erred in denying defendant’s amended postconviction petition and

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(2) whether postconviction counsel provided reasonable assistance. Counsel concluded that

neither issue is potentially meritorious. We agree.

¶ 25 We begin by reviewing the principles that govern postconviction proceedings:

“Under the Act, criminal defendants may assert that their convictions were the

result of a substantial denial of their federal or state constitutional rights. The Act provides

a three-stage mechanism for a defendant to advance such a claim. At the first stage of

postconviction proceedings, the circuit court must independently review the postconviction

petition and shall dismiss it if it is ‘frivolous or is patently without merit.’ Accordingly, the

petition advances to the second stage if (1) the court does not rule on the petition within [a]

90-day period, notwithstanding the petition's merit [citation], or (2) the facts alleged in the

petition state an arguable claim of constitutional deprivation.

At the second stage, counsel may be appointed to assist an indigent defendant. ***

At the second stage, the State may file a motion to dismiss or an answer to the petition. In

deciding a motion to dismiss, the circuit court must determine whether the petition and

accompanying documents make a substantial showing of a constitutional violation. If the

petition makes the requisite showing, it is advanced for a third-stage evidentiary hearing.

If not, dismissal is proper.” (Citations omitted). People v. Agee, 2023 IL 128413, ¶¶ 36-37.

¶ 26 As our supreme court has explained, “[a] proceeding brought pursuant to [the Act]

[citation] is not a direct appeal but a collateral attack on a judgment of conviction. [Citation.] The

Act permits the petitioner to identify constitutional violations occurring at trial that could not be

and were not previously adjudicated. [Citation.]” People v. Hawkins, 181 Ill. 2d 41, 50 (1998).

Therefore, “issues that were raised and decided on direct appeal are barred from consideration by

the doctrine of res judicata, while issues that could have been raised, but were not, are forfeited.”

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People v. Taliani, 2021 IL 125891, ¶ 53. In addition, “[a]ny 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).

¶ 27 This appeal arises from the denial of defendant’s petition following a third-stage hearing.

In such cases, if the trial court engages in fact-finding and credibility determinations, its decision

will not be reversed unless it is manifestly erroneous. People v. English, 2013 IL 112890, ¶ 23.

“However, if no such determinations are necessary at the third stage, i.e., no new evidence

is presented and the issues presented are pure questions of law, we will apply a de novo

standard of review, unless the judge presiding over postconviction proceedings has some

special expertise or familiarity with defendant’s trial or sentencing and that familiarity has

some bearing upon disposition of the postconviction petition. [Citation.]”Id.

¶ 28 With these principles in mind, we turn to the merits. Defendant’s amended petition claimed

that both trial counsel and counsel on direct appeal provided ineffective assistance. The Strickland

test governs both claims. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v.

Span, 2021 IL App (2d) 180966, ¶ 11. To prevail on an ineffectiveness claim, a defendant must

show that counsel’s performance “fell below an objective standard of reasonableness” and that the

deficient performance was prejudicial in that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 688, 694.

¶ 29 We address first the claim that trial counsel was ineffective for failing to argue that

defendant’s immigration status did not supply probable cause to arrest him. We held in Montes I

that the record on direct appeal was insufficient to resolve this question. Montes I, 2020 IL App

(2d) 180565, ¶¶ 59-61. We provided guidance for a potential postconviction claim: defendant

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would have to establish a reasonable probability that, if the State had had notice that it needed to

show probable cause to arrest defendant for a criminal immigration violation, the State would have

been unable to do so and, thus, the motion to quash and suppress would have been granted. Id.

Defendant could establish that reasonable probability only by producing additional evidence as to

the nature of defendant’s immigration violation. Id. However, as the trial court noted in denying

defendant’s amended petition, defendant produced no such evidence. The record still reflects

simply that defendant was arrested for an immigration violation, i.e., being in the United States

illegally. There is no indication whether it was a civil or criminal violation. Thus, the record does

not demonstrate, any more than before, that the officers lacked probable cause to arrest defendant

for a violation of immigration law. Accordingly, as on direct appeal, defendant has failed to

establish prejudice within the meaning of Strickland, and thus, there is no arguably meritorious

basis for challenging the denial of defendant’s postconviction claim of ineffective assistance of

trial counsel.

¶ 30 Appellate counsel next considered whether to argue that it was error to deny defendant’s

postconviction claim of ineffective assistance of counsel on direct appeal. The amended

postconviction petition claimed that counsel on direct appeal performed deficiently by relying

entirely on Arizona. According to the amended petition, Arizona was “distinguishable” because it

“involved state and local officers trying to enforce civil immigration violations,” whereas here “the

two officers who stopped and arrested [defendant] testified that they were working as task-force

officers with [DHS].” The amended petition does not explain, and we fail to see, how appellate

counsel’s reliance on Arizona was prejudicial, as the amended petition does not identify more

relevant case law or other authority and, thus, points to nothing that counsel could have done

differently to achieve a more favorable outcome for defendant. Thus, there is no arguably

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meritorious basis for challenging the denial of defendant’s postconviction claim of ineffective

assistance of counsel on direct appeal.

¶ 31 We next consider whether there is any potentially meritorious basis for arguing that

defendant did not receive the requisite level of assistance from counsel in the postconviction

proceedings. The right to counsel in a postconviction proceeding is not constitutional but rather

statutory in nature. People v. Pinkonsly, 207 Ill. 2d 555, 567 (2003). The Act requires

postconviction counsel to provide “a reasonable level of assistance” to a defendant. Agee, 2023 IL

128413, ¶ 41. Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) exists “[t]o ensure that

postconviction petitioners receive reasonable assistance of counsel.” Agee, 2023 IL 128413, ¶ 42.

That rule provides in pertinent part:

“[The record on appeal] shall contain a showing, which may be made by the

certificate of petitioner’s attorney, that the attorney has consulted with petitioner by phone,

mail, electronic means or in person to ascertain his or her contentions of deprivation of

constitutional rights, has examined the record of the proceedings at the trial, and has made

any amendments to the petitions filed pro se that are necessary for an adequate presentation

of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 32 Compliance with Rule 651(c) does not foreclose a challenge to the reasonableness of

postconviction counsel’s assistance. See, e.g., People v. Jean, 2024 IL App (1st) 220807, ¶ 35

(“Although not enshrined in Rule 651(c), an attorney’s admitted lack of preparation for the

[second-stage] dismissal hearing cannot be considered reasonable.”). However, a proper certificate

of compliance with Rule 651(c) creates a rebuttable presumption that postconviction counsel

provided reasonable assistance. People v. Quezada, 2024 IL App (2d) 210076-B, ¶ 14.

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¶ 33 Here, postconviction counsel filed a proper certificate of compliance with Rule 651(c), and

we find nothing in the record to rebut the resultant presumption that postconviction counsel

provided reasonable assistance. We have determined that the trial court properly denied

defendant’s claims as amended by postconviction counsel, but we cannot discern on this record

whether counsel breached her duty of reasonable assistance. Accordingly, there is no arguably

meritorious basis for challenging postconviction counsel’s performance.

¶ 34 In his response to the motion to withdraw, defendant contends that the search of his home

was unlawful because it was executed with neither a warrant nor his consent. That issue was

resolved adversely to defendant in the trial court and was not raised in defendant’s direct appeal

or, perhaps more significantly, in his amended postconviction petition. See Taliani, 2021 IL

125891, ¶ 53 (issues that could have been raised on direct appeal, but were not, are forfeited); 725

ILCS 5/122-3 (West 2020)) (“Any claim of substantial denial of constitutional rights not raised in

the original or an amended petition is waived.”). Accordingly, there is no arguably meritorious

basis for relitigating the issue of consent in this appeal from the denial of a postconviction petition

that did not raise the issue.

¶ 35 II. CONCLUSION

¶ 36 For the reasons stated, we grant counsel’s motion to withdraw and affirm the judgment of

the circuit court of Kane County.

¶ 37 Affirmed.

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