2024 IL App (1st) 230469-U No. 1-23-0469 Order filed September 24, 2024 Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 00917 ) JOHN ORTEGA, ) Honorable ) Angela M. Petrone, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE VAN TINE delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s post-Krankel hearing denial of defendant’s amended motion seeking a new trial and resentencing over defendant’s contention that trial counsel rendered ineffective assistance by not investigating and presenting certain witnesses at sentencing.
¶2 Following a bench trial, the trial court found defendant John Ortega guilty of first-degree
murder and sentenced him to 38 years in prison. On direct appeal, we affirmed defendant’s
conviction but remanded for inquiry into his postsentencing claim of ineffective assistance of trial No. 1-23-0469
counsel, as required by People v. Krankel, 102 Ill. 2d 181 (1984). See People v. Ortega, 2017 IL
App (1st) 143424-U, ¶ 2. Defendant now appeals the trial court’s ruling at the Krankel hearing
that he did not establish that trial counsel rendered ineffective assistance by failing to investigate
and present certain witnesses at sentencing. 1 For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with two counts of first-degree murder (720 ILCS 5/9-1(a)(1),
(2) (West 2010)), one count of attempt murder (id. §§ 8-4(a), 9-1(a)(1)), two counts of leaving the
scene of a motor vehicle crash involving death (625 ILCS 5/11-401(a), (b) (West 2010)), and one
count of possession of a stolen motor vehicle (id. § 4-103(a)(1)). The charges arose from a January
27, 2011, incident in which defendant intentionally struck Rene Torres with a vehicle, killing him.
¶5 A. Trial and Direct Appeal
¶6 At trial, private counsel represented defendant. The evidence established that a blue Nissan
Maxima belonging to Ramon Rodriguez Lopez and Cynthia Perez Espinoza was stolen in Chicago
at approximately 7 p.m. on January 27, 2011. Approximately an hour later, Rene Torres and
Vicente Martinez, who were members of the Two-Six street gang, were walking near the
intersection of West 25th Street and South Karlov Avenue in Chicago. Martinez noticed a blue
vehicle in a nearby parking lot and saw its front passenger brandishing a firearm through the
window. The vehicle then drove toward Torres and Martinez. The vehicle struck Torres and
stopped on top of him; it either nicked or narrowly missed hitting Martinez. Martinez saw the
1 On remand, defendant filed an amended motion for a new trial, raising claims of ineffective assistance of trial counsel for failure to present alibi witnesses at trial and failure to present mitigation witnesses at sentencing. This appeal concerns only the sentencing issue, but defendant’s briefs inconsistently request both resentencing and a new trial. Resentencing is the only available remedy. See People v. Billups, 2016 IL App (1st) 134006, ¶¶ 14-18.
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driver, whom he identified as defendant, and a passenger exit the vehicle and run away.
Surveillance video, which the State presented at trial, recorded these events. Martinez called 911
and tried to lift the vehicle off Torres. Torres died at the scene due to compressional asphyxia.
¶7 Martinez testified that he believed the individuals in the blue vehicle were members of the
Latin Kings gang because there was a feud between that gang and the Two-Six gang at the time.
He provided descriptions of the driver and passenger to police. In the summer of 2011, police
matched fingerprints from a soda bottle found inside the vehicle and from the vehicle’s rear driver-
side exterior window frame to defendant. On November 29, 2011, Martinez identified defendant
as the driver in a photo array. Police arrested defendant on December 5, 2011. He was 17 years
old at the time. Martinez identified defendant in a lineup. Approximately three years after
defendant’s arrest, police discovered that DNA from a black knit cap found in the vehicle matched
a man named Raoul Molina. Martinez identified Molina as the passenger in a photo array.
¶8 The court found defendant guilty of one count of first-degree murder and acquitted him of
the remaining counts.
¶9 Trial counsel also represented defendant at sentencing. At the sentencing hearing, the court
indicated it had reviewed defendant’s presentence investigation report (PSI). The PSI stated that
defendant grew up in Chicago with his parents and siblings, had a good childhood, and was close
to his family. Defendant became affiliated with the Latin Kings when he was 13 years old. He
graduated from high school in 2011 and worked a part-time summer job with an organization
called Cease Fire in Chicago. In March 2011—after Torres’s murder but before defendant’s arrest
for it—defendant was adjudicated delinquent for aggravated battery of a police officer and was
sentenced to a year of probation, which was terminated unsatisfactorily. In April 2012, defendant
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was adjudicated delinquent for aggravated battery causing great bodily harm and was sentenced to
one year and five months in prison.
¶ 10 In aggravation, the State presented a victim impact statement from Torres’s sister, who
described the impact Torres’s death had on his family. In mitigation, trial counsel presented a letter
from defendant’s sister describing his good relationship with his family. Trial counsel also
proffered that defendant participated in a life skills workshop from March to December 2011,
again, after Torres’s murder but before defendant’s arrest for it.
¶ 11 The State argued that Torres suffered a “horrific death” and that defendant’s two
adjudications for aggravated battery showed he was a violent person. The State requested the
maximum 60-year sentence. Defendant contended that he grew up surrounded by gang violence
and that this murder was part of a “back and forth” series of murders between the Latin Kings and
the Two-Sixes gangs. Defendant claimed that he was “growing out of [gang life] and putting it
behind him.” He requested the minimum sentence of 20 years.
¶ 12 In allocution, defendant expressed sympathy for Torres’s family but denied he killed Torres
and denied he was “near the crime scene during that day.” He also claimed he “had an alibi but
[his] attorney never looked into it.” Trial counsel stated he investigated defendant’s potential alibi
but was unable to find witnesses to support it.
¶ 13 The court sentenced defendant to 38 years in prison. The court explained that Torres’s
death was “the greatest [aggravating factor there] could be” and highlighted defendant’s juvenile
background and gang membership as further aggravation. The court found that, given defendant’s
stable and comfortable home life, there was “no explaining the path that [he] took that was outside
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of the law.” The court acknowledged as mitigating factors defendant’s young age, completion of
high school, respectful and helpful demeanor, and potential for rehabilitation.
¶ 14 Trial counsel filed a motion to reconsider sentence, which the trial court denied. The same
day, defendant filed a pro se motion for reduction of sentence, in which he argued as follows:
“I am innocent of this crime. I am not a hazard to society. There are many law-abiding
citizens and community leaders who can advocate for me that I am a good individual and
an asset to society. I was treated misfairly [sic] by my representation and he created a bias
for me to the judge and I feel the judge is going off his false accusations. I do not deserve
this sentence or to be in the penitentiary.”
Defendant’s pro se motion identified as “advocates” Art Guerrero, “Matt Buller,” Hector Escalara,
and “Ben E.” 2 The trial court denied defendant’s pro se motion as frivolous and untimely.
¶ 15 On direct appeal, defendant argued that (1) the State failed to prove him guilty beyond a
reasonable doubt, (2) the trial court failed to accurately recall the evidence, (3) the trial court failed
to inquire into defendant’s postsentencing complaint regarding his counsel, and (4) his case should
be remanded for resentencing under provisions that were, at the time, newly applicable to
defendants under the age of 18. Ortega, 2017 IL App (1st) 143424-U, ¶ 2. This court affirmed
defendant’s conviction but remanded for a Krankel inquiry regarding defendant’s postsentencing
complaint of ineffective assistance of counsel. Id.
¶ 16 B. Krankel Hearing
“Buller” appears to be a misspelling of Matt Buehler’s last name and “Ben E.” appears to refer to 2
Benny Estrada.
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¶ 17 On remand, defendant was appointed an assistant public defender, who filed an amended
motion for a new trial. Defendant argued, in relevant part, that trial counsel rendered ineffective
assistance by failing to investigate and call mitigation witnesses at sentencing. 3 Defendant attached
his own affidavit, in which he attested to telling trial counsel that Art Guerrero, Hector Escalara,
and Benny Estrada could testify on his behalf at the sentencing hearing. Defendant did not believe
that trial counsel contacted any of those witnesses.
¶ 18 Guerrero’s affidavit was attached to the amended motion as well. Guerrero attested that he
was a program director at Urban Life Skills (ULS) and met defendant in 2010 when the juvenile
court required defendant to attend that program. Defendant was an enthusiastic and well-liked
participant in the program. He was “very open about being in a gang [and] stated on several
occasions that he wished he never joined [the gang] and that he was working on getting out.”
Defendant also obtained his high school diploma through an alternative school called Latino
Youth. Guerrero did not recall being contacted by trial counsel but would have testified consistent
with his affidavit at the sentencing hearing.
¶ 19 Vincent Torres’s affidavit attested that he was a mentor with ULS, an organization that
provides services to individuals on juvenile probation. Torres worked with defendant through ULS
in 2011 or 2012. Defendant earned a high school diploma during that time and Torres found him
to be “a very bright individual who had some rough experiences in life.” Torres and defendant
“had numerous discussions about gang life and the changes he would need to make to succeed in
3 As noted above, defendant’s amended motion for a new trial also claimed that trial counsel was ineffective for failing to call alibi witness Imani Williams, who would have testified that defendant was stealing a car in Berwyn at the time of Torres’s murder in Chicago. On appeal, defendant has abandoned that theory of ineffective assistance, so we do not discuss defendant’s witnesses and arguments regarding his potential alibi.
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life.” Defendant’s progress in ULS was “steady and encouraging” and Torres believed defendant
could become a productive citizen. Trial counsel did not contact Torres, but he would have testified
consistent with his affidavit at the sentencing hearing.
¶ 20 Defendant also attached a letter from ULS director Matt Buehler. Buehler wrote that
defendant participated in ULS from March 2011 through December 2011. Defendant attended
substance abuse classes, life skills workshops, and gang intervention and youth employment
programs. Buehler added that defendant completed 30 hours of community service and was “a
pleasure to have as part of [the] program.”
¶ 21 At the Krankel hearing, the court asked defendant to explain how trial counsel’s
representation was deficient. Defendant responded that, at sentencing, trial counsel failed to call
Guerrero, Buehler, Escalara, and Estrada.
¶ 22 Defendant testified that he met Guerrero, Buehler, Escalara, and Estrada through a
program that the juvenile court required him to participate in as part of his sentence in a prior case.
He told trial counsel that Guerrero, Buehler, Escalara, and Estrada could provide information for
sentencing, but counsel did not present testimony from any of those individuals.
¶ 23 Guerrero testified that he was ULS’s program coordinator from 2007 to 2015. ULS worked
with individuals on juvenile probation in the Little Village neighborhood of Chicago. Defendant
was a participant in the program for approximately a year in 2011 as a mandatory condition of his
juvenile probation. Guerrero saw defendant four to five times a week; defendant was “very
involved in programming” and exhibited leadership by “encouraging the other kids to participate
in the programming.” Defendant was a gang member when he entered the program but “seemed
like he didn’t really want to *** live that kind of lifestyle.” Defendant obtained a high school
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diploma through the Latino Youth Alternative School and was eligible for a college scholarship
but did not receive it because of his arrest in this case. Defendant’s mother told Guerrero that
defendant’s attorney would contact him regarding this case but that never happened. Guerrero was
willing to testify on defendant’s behalf and would have testified as outlined above.
¶ 24 Trial counsel testified that, in preparing for defendant’s sentencing hearing, he became
aware of a gang intervention juvenile program that defendant had participated in and may have
“contacted somebody at that program,” but had no independent memory of doing so. Counsel did
not recall if he presented any documents regarding defendant’s participation in the juvenile
program as part of the mitigation arguments. Counsel would have investigated any witnesses
defendant suggested but did not recall any such discussions with defendant. Counsel
acknowledged that he did not present Matt Buehler’s letter at the sentencing hearing.
¶ 25 The trial court found that trial counsel’s performance was not objectively unreasonable and
did not prejudice defendant. Specifically, the court found that trial counsel’s decision not to present
defendant’s ULS mentors at sentencing did not constitute ineffective assistance because there was
“no reasonable probability the sentence defendant received would have been less” had they
testified. The court noted that defendant “chose to commit the brutal murder in this case” despite
having “wonderful mentors like Guerrero, Torres, and Buehler,” a fact that “would not necessarily
have been considered mitigating.”
¶ 26 Defendant timely appealed.
¶ 27 II. ANALYSIS
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¶ 28 Defendant argues that, at the Krankel hearing, he established that trial counsel rendered
ineffective assistance by failing to (1) investigate Guerrero and (2) present Buehler’s letter at the
sentencing hearing.
¶ 29 When a criminal defendant makes a pro se posttrial claim of ineffective assistance of
counsel, that triggers a procedure that has developed from our supreme court’s decision in Krankel.
People v. Jackson, 2020 IL 124112, ¶ 96. Under that procedure, the trial court must decide whether
new counsel is necessary to present the defendant’s claim of ineffective assistance of trial counsel.
In re Jonathan T., 2022 IL 127222, ¶ 23. First, the trial court must examine the factual basis of the
defendant’s claim of ineffective assistance. Jackson, 2020 IL 124112, ¶ 97. If the trial court
determines that the claim lacks merit or pertains only to matters of trial strategy, the court may
deny the pro se claim of ineffective assistance without appointing new counsel. Id. However, if
the defendant’s allegations show possible neglect by trial counsel, then the court should appoint
new counsel. Id. New counsel then represents the defendant at a hearing on the claim of ineffective
assistance of trial counsel. Id.
¶ 30 The parties disagree about which standard of review applies to an appeal from a Krankel
evidentiary hearing. Defendant maintains that we review for manifest error. The State contends
that we should apply a mixed standard of review, deferring to the trial court’s findings of fact
unless they are against the manifest weight of the evidence but reviewing de novo whether trial
counsel rendered ineffective assistance. The State cites People v. Velasco, 2018 IL App (1st)
161683, in support of the mixed standard of review. However, more recent authority from our
supreme court makes clear that “if the trial court has properly conducted a Krankel inquiry and has
reached a determination on the merits of the defendant’s Krankel motion, we will reverse only if
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the trial court’s action was manifestly erroneous.” Jackson, 2020 IL 124112, ¶ 98. In this case, the
trial court properly conducted a Krankel inquiry and resolved defendant’s motion on the merits,
so manifest error review applies. Manifest error is error that is clearly evident, plain, and
indisputable. Id.
¶ 31 Defendant raises two claims of ineffective assistance of counsel related to sentencing: (1)
trial counsel’s failure to investigate Guerrero as a potential witness to defendant’s good character,
and (2) failure to present Buehler’s letter as mitigation evidence. To establish ineffective assistance
of counsel, a defendant must show that (1) counsel’s performance was deficient and (2) counsel’s
deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984). To establish deficient performance,
defendant must identify errors “so serious that counsel was not functioning as the ‘counsel’
guaranteed” by the constitution. Strickland, 466 U.S. at 687. To establish prejudice, “ ‘[t]he
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” People v. Hale, 2013 IL 113140,
¶ 18 (quoting Strickland, 466 U.S. at 694). In the context of sentencing, prejudice means a
reasonable probability that the trial court would have imposed a lesser sentence. People v. Billups,
2016 IL App (1st) 134006, ¶ 16 (citing People v. Steidl, 177 Ill. 2d 239, 257 (1997)). We must
assess prejudice in a realistic manner based on the totality of the evidence in aggravation and
mitigation. People v. Simon, 2014 IL App (1st) 130567, ¶ 72.
¶ 32 Because this appeal concerns how trial counsel’s decision not to present certain evidence
affected defendant’s sentence, we review the factors that courts consider when determining a
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sentence. A sentencing court must consider both the seriousness of the offense and the defendant’s
rehabilitative potential. Ill. Const. 1970, art. 1, § 11; People v. Perruquet, 68 Ill. 2d 149, 154-55
(1977). However, the seriousness of the offense is the most important sentencing factor. People v.
Contursi, 2019 IL App (1st) 162894, ¶ 24. The presence of mitigating factors does not require a
minimum sentence or preclude a maximum sentence (People v. Harmon, 2015 IL App (1st)
122345, ¶ 123), and the court is not required to assign a value to each factor in aggravation or
mitigation (People v. Jones, 2019 IL App (1st) 170478, ¶ 55).
¶ 33 We hold that the trial court did not commit manifest error by ruling that that defendant
failed to establish the prejudice prong of Strickland at the Krankel hearing. The court sentenced
defendant to 38 years in prison, which is “squarely in the middle of the 20-to-60-year sentencing
range for first degree murder.” See People v. Ealy, 2019 IL App (1st) 161575, ¶ 55; see also 730
ILCS 5/5-4.5-20(a) (West 2010)). The most serious aggravating factor was Torres’s horrific death:
being crushed by the stolen vehicle that defendant used to commit a cold-blooded, gang-related
murder. Guerrero’s testimony and Buehler’s letter addressed only defendant’s actions after
murdering Torres. They would not have changed the seriousness of this crime or lessened
defendant’s culpability for it.
¶ 34 Moreover, we are skeptical that Guerrero and Buehler’s evidence was, in fact, mitigating.
Guerrero and Buehler interacted with defendant between Torres’s murder in January 2011 and
defendant’s arrest for that murder in December 2011. Neither witness claimed that defendant
expressed remorse for Torres’s murder during that time or considered turning himself in. Guerrero
and Buehler also supported an inference that defendant’s participation in the ULS program was
insincere. Defendant talked with ULS staff about making positive changes and leaving gang life
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behind just months after committing a brutal gang-related murder. In addition, Guerrero and
Buehler would have revealed that defendant did not participate in ULS by choice, but rather by
court order in one of his juvenile delinquency cases. To the extent Guerrero and Buehler would
have provided mitigating evidence, it merely would have added detail to what the trial court
already knew about defendant, not new information. The court was aware from trial counsel’s
proffer and defendant’s sister’s letter that defendant participated in a life skills program from
March to December 2011.
¶ 35 At most, despite the trial court’s pronouncement to the contrary, there is a remote
possibility that Guerrero and Buehler’s evidence might have resulted in a marginally lower
sentence, although we cannot say how much lower. A speculative, undefined possibility that the
sentence may have been lower is not sufficient to establish prejudice under Strickland, which
requires “a reasonable probability the court would have imposed a lower sentence” had counsel
presented the mitigating evidence at issue. (Emphasis added.) See People v. Gates, 2023 IL App
(1st) 211422, ¶ 69.
¶ 36 Defendant cites Glover v. United States, 531 U.S. 198 (2001), for the proposition that “any
extra prison time is prejudicial.” Glover holds that any identifiable increase in a defendant’s
sentence establishes prejudice. Id. at 198. However, Glover does not hold that a defendant not
receiving every imaginable decrease in his sentence also establishes prejudice. Furthermore, the
facts of Glover are distinguishable. The defendant in Glover established prejudice by showing that
the class of his offense was mistakenly increased by two classes, resulting in a sentence 6 to 21
months longer than the sentence he should have received. Id. at 200. In this case, defendant raises
no such claim. Rather, he makes only a speculative claim that Guerrero and Buehler’s evidence
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might have resulted in a slightly shorter sentence. Glover does not hold that such speculation is
sufficient to show prejudice under Strickland. In addition, Glover involved counsel’s failure to
object to an erroneous sentencing calculation, not counsel’s strategic decisions about what
mitigating evidence to present. 4 Id. at 204.
¶ 37 Defendant also relies on People v. Cuevas, 2018 IL App (2d) 151100. In Cuevas, defense
counsel presented no mitigating evidence at sentencing. Id. ¶ 10. The trial court found that the
defendant had “very little rehabilitative potential” and sentenced him to 14 years in prison for
possession of a controlled substance with intent to deliver. Id. at ¶¶ 1, 10-11. The court found that
the defendant’s postconviction petition made a substantial showing of prejudice under Strickland
because defense counsel provided no mitigating evidence to rebut the State’s argument that
defendant was a bad parent with poor work history and no rehabilitative potential. Id. ¶ 39. Cuevas
is distinguishable. In this case, trial counsel presented evidence of defendant’s good relationship
with his family, his success in high school, and his work in a summer job after graduating from
high school, and the trial court expressly recognized defendant’s rehabilitative potential.
Moreover, the offense in this case is far more serious than the offense in Cuevas. Even if Cuevas
were factually similar, it only supports advancing a postconviction petition to the third stage, not
remanding for resentencing. Id. ¶ 41.
¶ 38 Because we find that defendant failed to establish prejudice under Strickland, we need not
consider whether trial counsel’s actions with respect to sentencing were objectively reasonable.
4 We acknowledge that failure to investigate a potential mitigation witness, in this case Guerrero, is not a strategic decision. See People v. Towns, 182 Ill. 2d 491, 514 (1998) (“counsel’s presentation of mitigation is not deemed to be a legitimate strategy without a reasonable investigation into mitigating circumstances.”). Nevertheless, Glover is not sufficiently similar to this case as to require reversal, and we resolve this appeal based on the prejudice prong of Strickland in any event.
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See People v. Cherry, 2016 IL 118728, ¶ 24 (“Because a defendant must satisfy both prongs of the
Strickland test to prevail, the failure to establish either precludes a finding of ineffective assistance
of counsel.”). Accordingly, the trial court properly denied defendant’s amended motion raising
claims of ineffective assistance of trial counsel at sentencing.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 41 Affirmed.
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