People v. Orasco

2016 IL App (3d) 120633-B

Opinion

2016 IL App (3d) 120633-B

Opinion filed April 14, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-12-0633 v. ) Circuit No. 09-CF-1536 ) JASON ORASCO, ) Honorable ) Amy Bertani-Tomczak, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and Lytton concurred in the judgment and opinion.

OPINION

¶1 A Will County jury found defendant, Jason Orasco, guilty of three counts of first degree

murder (720 ILCS 5/9-1(a)(1)-(3) (West 2008)), one count of attempted first degree murder (720

ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), one count of home invasion (720 ILCS 5/12-11(a)(2)

(West 2008)), one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West

2008)), and one count of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)). The three first

degree murder counts merged together, and the aggravated battery merged with the attempted

first degree murder. The court sentenced defendant to consecutive sentences of 50 years’

imprisonment for first degree murder and 25 years for attempted first degree murder, to be served concurrently with sentences of 20 years for home invasion and 25 years for armed

robbery.

¶2 Defendant appeals, arguing that his trial counsel was ineffective for failing to instruct the

jury on the affirmative defense of compulsion. The State argues that counsel’s decision was

strategic and, alternatively, that it did not prejudice defendant’s defense. In addition, the State

claims that defendant’s sentence is void because all of defendant’s sentences must be served

consecutively under section 5-8-4(d)(1) of the Unified Code of Corrections (Code) (730 ILCS

5/5-8-4(d)(1) (West 2008)). We affirm defendant’s convictions and sentences.

¶3 FACTS

¶4 Defendant was indicted on three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3)

(West 2008)) (counts I, II, and III); one count of attempted first degree murder (720 ILCS 5/8-

4(a), 9-1(a)(1) (West 2008)) (count IV); one count of aggravated battery with a firearm (720

ILCS 5/12-4.2(a)(1) (West 2008)) (count V); two counts of home invasion (720 ILCS 5/12-

11(a)(2), (5) (West 2008)) (counts VI and VII); and one count of armed robbery (720 ILCS 5/18-

2(a)(2) (West 2008)) (count VIII). The cause proceeded to a jury trial.

¶5 At trial, Ashley Hill testified that she, defendant, Matthew Edwards, and Mary Vetor

were at Vetor’s house on the night of July 6, 2009. Edwards commented that the group should

rob somebody to earn some money. Defendant said he knew someone they could rob, a man

named Josh Terdic, whom defendant had known for several years. Defendant explained that

Terdic had money and drugs at an apartment he shared with his girlfriend in Channahon.

Defendant said that Terdic worked construction and told the group his work schedule. The group

decided to drive to Terdic’s apartment building and wait outside until he left for work, when they

would beat him up and take whatever money he was carrying.

2 ¶6 According to Hill, after the group decided to rob Terdic, Vetor gave Edwards a .22-

caliber pistol to use for “protection.” Defendant saw Vetor give Edwards the gun. Defendant

armed himself with a baseball bat. The four got in Vetor’s truck and drove to Terdic’s apartment

building. Defendant gave Vetor directions along the way. Hill gave defendant and Edwards a

prepaid cellular telephone to call for a ride after the robbery. Vetor dropped off defendant and

Edwards to hide in a patch of trees down the street from Terdic’s building. Vetor and Hill stayed

in the truck and smoked marijuana.

¶7 While Vetor and Hill were smoking in the truck, police arrived and ticketed them for

possession of marijuana, but did not take them into custody. After the officers finished their

investigation and left the scene, Vetor and Hill drove off and waited for a telephone call from

defendant and Edwards. The next morning, Vetor received a phone call, and she and Hill picked

up defendant and Edwards from a friend’s cabin in Channahon. Defendant appeared to be in

shock.

¶8 The four drove to Vetor’s house. The men had obtained money, which they split four

ways among them. They had also taken a PlayStation 2 and a Nintendo Wii. The group watched

the television news and cheered when it showed a story about the robbery. Hill did not know if

defendant was cheering. Police arrived at Vetor’s house that afternoon and arrested the four of

them. Hill did not witness Edwards threaten defendant to participate in the robbery or witness

defendant resist participating.

¶9 Lauren Vasilakis testified that on July 7, 2009, she was living with her boyfriend, Terdic.

Early that morning she was awakened in their apartment by two men. One of them wore a mask;

the other carried a gun. The masked man grabbed her from behind and put his arm around her

neck. She could feel his heart “racing.” She recognized the masked man’s voice and knew he

3 was defendant, whom she had known for more than 10 years and who was a friend of Terdic’s.

The unmasked man, whom Vasilakis later identified as Edwards, left the bedroom to look for

money and valuables. He gave defendant the gun to stand watch over Vasilakis and Terdic.

When Edwards returned, defendant gave him back the gun.

¶ 10 Vasilakis heard Edwards threaten Terdic that if he did not give them more money, they

would kill him. Edwards said that he had killed his own sister and had no remorse. When

Terdic would not stop fidgeting, defendant pulled a bat out of his duffel bag and hit Terdic full

force in the leg. Eventually, defendant and Edwards became convinced that they had recovered

everything of value in the apartment. They discussed how to ensure that Terdic and Vasilakis

did not call the police after they left. Vasilakis suggested that they could tie up her and Terdic.

The men initially agreed, and Edwards gave the gun to defendant while Edwards tied them up.

¶ 11 Defendant then tried to choke Vasilakis into unconsciousness, but ended up only making

her dizzy. Edwards and defendant conferred again, and Vasilakis heard defendant tell Edwards

to “just do it.”

¶ 12 Vasilakis felt someone kneel over Terdic and heard a gunshot. Then someone kneeled

over her, and she could feel a gun pointing at her head through a pillow. She heard two clicks

and then a ringing sound and felt wetness around her ear. She played dead until the two men

left. After they left, Vasilakis untied herself and called 911 from a neighbor’s apartment.

Vasilakis was taken to the hospital and treated for a gunshot wound to the head. Doctors were

unable to remove the bullet.

¶ 13 The State played for the jury a recorded interview with defendant conducted after his

arrest. Throughout the interview, defendant states that Edwards was in charge and defendant

participated because he was doing what he was told and had no choice but to participate.

4 According to defendant, the plan to rob Terdic came about after Edwards browsed through the

contacts listed in defendant’s cellular telephone. Upon seeing Terdic’s name, Edwards decided

that the group should rob Terdic.

¶ 14 Defendant explained that Vetor gave him and Edwards a gun with instructions to kill

Terdic and Terdic’s girlfriend. As defendant and Edwards waited in the trees near Terdic’s

building, they witnessed the police investigating Vetor and Hill in the truck. According to

defendant, Edwards said he was going to kill the officers if they arrested Vetor. After the police

left, Edwards and defendant approached the building to find a way into Terdic’s apartment.

Edwards found a way in, and defendant followed because he was scared.

¶ 15 Defendant stated that he and Edwards entered Terdic’s bedroom and woke Terdic and

Vasilakis. Edwards told defendant to choke Vasilakis so that she could not move. Defendant did

as he was told. Terdic told the men that he had money hidden in the apartment, but Edwards had

already found the money in another room. Edwards instructed Terdic and Vasilakis to lie face

down and put a pillow over each of their heads. Edwards gave defendant a bat and told him to

hit Terdic with it if Terdic kept squirming. Terdic moved, and defendant hit him in the leg with

the bat.

¶ 16 Edwards left the room to find some rope and gave defendant the gun to stand guard.

Edwards returned and tied up Terdic and Vasilakis. Edwards and defendant were contemplating

what to do with their captives. Defendant told Edwards that they needed to kill them to keep

them from telling police. According to defendant’s statement, he did not really mean what he

said and was only doing as he was told. Edwards then shot both Terdic and Vasilakis in the

head. Defendant and Edwards left Terdic’s house and travelled to a friend’s cabin, where

Edwards broke in. Edwards called Vetor and asked her to pick them up. When they split up the

5 money, defendant received approximately $70. Defendant stated that Edwards had forced him to

commit the robbery by pointing the gun at him and threatening to kill him if he tried to run or

told police. Defendant did not explain when or where Edwards had made that threat.

¶ 17 During closing arguments, defense counsel argued that “[t]he facts don’t hold up the

proposition of accountability.” According to counsel, defendant and Edwards were trying to

determine what to do with their captives. At that point, defendant “heard a pop and turned, and

then he saw [Edwards] shoot [Terdic]. This is far and above what [defendant] signed up for.

There was no intent for all of this.” Then counsel changed approach, arguing that defendant was

scared and his participation in the crime was merely “self-preservation” because he was scared

that Edwards would kill him. Counsel focused on the facts that Vasilakis felt defendant’s heart

racing and that defendant was in shock after the crime as evidence establishing that defendant

was not a willing participant.

¶ 18 The jury was instructed on accountability but not on the affirmative defense of

compulsion. Defense counsel never tendered an instruction on compulsion. The jury returned

guilty verdicts on all counts.

¶ 19 At sentencing, the State informed the court of the sentencing ranges available on each

count. The State asserted that counts I and IV (intentional murder and attempted murder) were

required to run consecutively, but counts VII and VIII (home invasion and armed robbery)

should run concurrently to each other and to counts I and IV. The court summarized, “the

defense in the case is that you were terrified and there was nothing else you could do other than

participate in this crime as far as it went.” The court then pronounced defendant’s sentences:

“I agree with the State as far as the counts that Counts 2 and 3

would merge into Count 1. There is the enhancement with the

6 firearm. I will sentence you to 50 years in the Illinois Department

of Corrections on that matter and that is at 100 percent.

Count 4 is the aggravated battery with a firearm.[1] I am

going to sentence you consecutive because the law requires that it

be consecutive to 25 years in the Department of Corrections at 85

percent.

Count 7, the home invasion, 20 years at 85 percent, that

will be concurrent.

And the armed robbery, 25 years concurrent. There is a

three-year mandatory supervised release period. You will be given

credit for all time served that you’re entitled to, and I will enter

judgment for any outstanding fines, costs, and fees.”

¶ 20 Defendant appeals.

¶ 21 ANALYSIS

¶ 22 On appeal, defendant claims that trial counsel provided ineffective assistance by failing

to tender a jury instruction on the affirmative defense of compulsion (720 ILCS 5/7-11 (West

2008)). The State responds that a compulsion defense was not supported by the evidence. In

addition, the State claims that all of defendant’s sentences must be served consecutively under

the mandate of section 5-8-4(d)(1) of the Code. 730 ILCS 5/5-8-4(d)(1) (West 2008).

1 The court apparently misspoke, as count IV charged attempted first degree murder. The

court’s written mittimus clarified that the court sentenced defendant to 25 years for attempted

first degree murder, not aggravated battery. No sentence was imposed for aggravated battery as

that count merged with the attempted murder count.

7 ¶ 23 A. Ineffective Assistance of Counsel

¶ 24 Criminal defendants enjoy a constitutional right to effective counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668 (1984). To

succeed upon a claim that counsel provided ineffective assistance, a defendant must show that:

(1) counsel’s performance fell below an objective standard of reasonableness, and (2) but for

counsel’s poor performance, there is a reasonable probability that the result of the proceedings

would have been different. Strickland, 466 U.S. at 687. To establish deficient performance, a

defendant must overcome a strong presumption that counsel’s actions were the product of sound

trial strategy. People v. Manning, 241 Ill. 2d 319, 342-43 (2011). However, “[w]here defense

counsel argues a theory of defense but then fails to offer an instruction on that theory of defense,

the failure cannot be called trial strategy and is evidence of ineffective assistance of counsel.”

People v. Serrano, 286 Ill. App. 3d 485, 492 (1997).

¶ 25 In the present case, defendant claims that counsel was ineffective for failing to tender a

jury instruction on compulsion. The affirmative defense of compulsion is available when a

defendant has committed criminal acts under a reasonable belief that death or great bodily harm

would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/7-11 (West 2008).

The defense is not available if the compulsion arises from the negligence or fault of the

defendant or if the defendant had any opportunity to withdraw from the criminal enterprise but

failed to do so. People v. Humphries, 257 Ill. App. 3d 1034, 1044 (1994).

¶ 26 A defendant need only present some evidence of an affirmative defense—such as

compulsion—in order to raise the defense and justify an instruction. People v. Pegram, 124 Ill.

2d 166, 173 (1988). After a defendant raises a defense, the burden shifts to the State to prove

8 beyond a reasonable doubt that defendant’s conduct was not justified by the offense. People v.

Johns, 387 Ill. App. 3d 8, 13 (2008).

¶ 27 In the present case, defense counsel argued that defendant was compelled to commit the

charged offense, but counsel failed to tender a jury instruction on compulsion. That error

deprived the jurors of the ability to acquit defendant if they found that he acted under the threat

of death or great bodily harm. However, defendant cannot succeed upon his claim of ineffective

assistance, because counsel’s failure to tender an instruction did not prejudice defendant.

¶ 28 To establish prejudice in this case, defendant must show that had counsel tendered a

compulsion jury instruction, there is a reasonable probability that the court would have allowed

the instruction and the jury would have acquitted defendant based on compulsion.

¶ 29 The evidence presented at trial was insufficient to support a jury instruction on

compulsion. First, the evidence did not establish that defendant committed the acts constituting

any of his offenses under threat of great bodily harm or death. Defendant’s repeated statements

that he was just doing what he was told do not constitute compulsion, absent an impending threat

of great bodily harm. People v. Scherzer, 179 Ill. App. 3d 624, 645 (1989). The only reference

to a threat of any kind was defendant’s statement that “He [Edwards] pretty much pointed the

gun at me. And then pretty much told me if I snitched or even tried to run off that he would kill

me.” Defendant does not elaborate on when this alleged statement was made, nor was the

statement confirmed by any other testimony. In fact, Vasilakis testified that defendant was the

one encouraging Edwards to kill her and Terdic. Defendant himself said in his recorded

statement that he encouraged Edwards to shoot Vasilakis and Terdic to prevent them from

reporting the robbery.

9 ¶ 30 Second, any potential compulsion arose from the fault of defendant. See Humphries, 257

Ill. App. 3d at 1044. Hill testified that defendant suggested the idea to rob Terdic. Defendant

then gave the group information about Terdic: that Terdic would have cash from his job in

construction and that he lived in an apartment in Channahan with his girlfriend. Defendant then

gave directions as Vetor drove the group to Terdic’s apartment.

¶ 31 Third, even assuming that defendant was acting under compulsion, he had opportunities

to withdraw from the criminal enterprise but chose not to. See Scherzer, 179 Ill. App. 3d at 645-

46. In particular, while inside Terdic’s apartment, defendant on two separate occasions came

into possession of the only firearm. Once in possession of the gun, defendant was no longer

susceptible to any potential threats from Edwards. While defendant was the only one in the

house armed with a handgun, he cannot credibly argue that he was acting out of fear of the

unarmed Edwards. Defendant failed to withdraw from the criminal enterprise when he had the

perfect opportunity to do so.

¶ 32 Defendant did not receive ineffective assistance counsel. Had counsel tendered a jury

instruction on compulsion, there is not a reasonable probability that the trial court would have

given the instruction. Had the trial court given the instruction, there is not a reasonable

probability that the jury would have acquitted.

¶ 33 B. Sentencing

¶ 34 The State claims that the trial court’s sentencing judgment does not comply with section

5-8-4(d)(1) of the Code, which would mandate that all of defendant’s sentences be consecutive

in nature. See 730 ILCS 5/5-8-4(d)(1) (West 2008). Citing People v. Arna, 168 Ill. 2d 107

(1995) (abrogated by People v. Castleberry, 2015 IL 116916), the State argued that a sentence

that does not comply with statute is void and may, therefore, be corrected at any time. Defendant

10 conceded the issue. 2 We vacated defendant’s sentences and remanded for resentencing.

Defendant filed a petition for leave to appeal to the supreme court.

¶ 35 Subsequently, our supreme court issued a supervisory order, directing us to vacate our

original opinion and reconsider our ruling in light of its decision in Castleberry, 2015 IL 116916.

People v. Orasco, No. 118073 (Jan. 20, 2016). And so we do.

¶ 36 In Castleberry, our supreme court expressly abolished the void sentence rule.

Castleberry, 2015 IL 116916, ¶ 1. In doing so, the court made clear that the issue of voidness is

purely a jurisdictional question. Id. ¶ 15. In other words, a judgment is only void where the

court entering that judgment has done so without jurisdiction. Id. Such is not the case where a

trial court, vested with general jurisdiction by the Illinois Constitution (Ill. Const. 1970, art. VI,

§ 9), issues a sentence that does not comply with statute. See Castleberry, 2015 IL 116916, ¶ 18.

¶ 37 The Castleberry court further held that in the absence of the void sentence rule, the State

may not directly attack the trial court’s sentencing order. Id. ¶¶ 20-24. In that case, as in the

case before us, the State challenged the defendant’s sentence on the defendant’s appeal. The

court stated:

“The State’s argument in the appellate court that the 15-

year enhancement should be applied to defendant’s sentence was

not brought to sustain the judgment of the circuit court. It was,

instead, a new and different issue brought with a view to ‘lessening

the rights’ of defendant. The State’s argument was a de facto

cross-appeal challenging defendant’s sentence and, as such, was

2 Obviously, neither the argument nor the concession would have occurred had Castleberry been the law at the time of briefing.

11 impermissible. See, e.g., People v. Newlin, 2014 IL App (5th)

120518, ¶ 31 (‘What the State is essentially trying to do in the

instant case is to piggyback an appeal on defendant’s appeal. We

can find no authority for such practice ***.’); [citations].” Id. ¶ 23.

The court went on to suggest that the proper remedy for the State in seeking to correct an

illegally low sentence is to seek leave to file a petition for a writ of mandamus. Id. ¶¶ 26-27.

¶ 38 Castleberry controls our disposition of the issue. Given the abolition of the void sentence

rule, the State is barred from challenging defendant’s sentence in this appeal. Id. ¶ 23.

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 41 Affirmed.