NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 180211-U June 18, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-18-0211 the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Clark County MARIA S. PACHECO, ) No. 10CF63 Defendant-Appellant. ) ) Honorable ) Tracy W. Resch, ) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Knecht and Cavanagh concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, concluding defendant received reasonable assistance of postconviction counsel.
¶2 In June 2017, defendant, Maria S. Pacheco, filed a pro se postconviction petition.
In September 2017, the State filed a motion to dismiss, arguing defendant’s actual innocence
claim failed and her other arguments were res judicata. In March 2018, the trial court dismissed
defendant’s postconviction petition.
¶3 Defendant appeals, arguing she received unreasonable assistance of
postconviction counsel where counsel failed to shape her sentencing claim into proper legal
form. For the following reasons, we affirm the trial court’s judgment.
¶4 I. BACKGROUND ¶5 In July 2010, the State charged defendant, who was 16 years old at the time of the
offense, as an adult with three counts of first-degree murder based on her accountability for the
death of her uncle, Arnulfo Pacheco (720 ILCS 5/9-1(a)(1), (2) (West 2010)). The State also
charged defendant with robbery based on a theory of accountability (720 ILCS 5/18-1 (West
2008)) and possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2010)). In June 2011,
the matter proceeded to a jury trial. In defendant’s direct appeal, this court summarized the
relevant testimony from defendant’s codefendant, Jarrod Riley, as follows:
“Riley testified he and defendant started dating in the
spring of 2010 and began having a sexual relationship. He was 20,
and defendant was 15. He stated defendant was the first girl he
loved. In June 2010, defendant had her sixteenth birthday.
Defendant told Riley she thought her uncle, Arnulfo, was going to
get her a car for her birthday, but this did not happen. Riley
testified defendant was not happy at home. She told him she
always fought with her parents and hated her uncle. She said her
father hit her and her mother. Riley testified defendant wanted to
run away and he wanted to help her.
Riley testified he and defendant talked and texted about
using bleach to knock out her uncle so they could take his car. He
sent her a text message asking if she had rope or duct tape. She
responded she thought there was some in the garage. Defendant
later texted Riley to say they were out of duct tape, but she would
-2- buy some and keep looking for rope. Defendant suggested taking
her father’s checkbook with them to pay for things.
Riley texted defendant on July 10, 2010 and told her he
wanted to leave on Monday. The texts showed the plan was for
him to get to defendant’s house, wait for her uncle to arrive, knock
him out, tie him up, and take his car before he woke up. Defendant
responded the plan sounded good. She said she would need to
make sure she was home alone. Riley sent her another text and
said she needed to soak a rag in bleach for Monday. Defendant
confirmed she received the text message. Riley testified the rag
and bleach were ultimately going to be used on Arnulfo.
Riley texted defendant and said he was going to take a cab
to Marshall on Monday. Defendant replied her uncle would leave
for work at 10 or 11 so Riley would need to get there earlier than
that. Riley sent her a text message asking how they would get
Arnulfo into her house. Riley testified he sent defendant another
message telling her not to stop him no matter what he did to her
uncle. She responded she would not stop him.
According to Riley’s testimony, their plan later changed to
killing Arnulfo and taking his truck. Riley testified on July 11,
2010, he sent defendant a text message stating they were going to
steal her uncle’s ‘shit’ after ‘i do what im doing to your uncle.’ He
then sent defendant a text message which asked if defendant had
-3- any sharp knives at her house. Defendant responded shortly
thereafter asking what Riley was planning to do. Riley sent her a
text, stating he was going to “ ‘F’ him up but if he fights back well
you understand, righ.” Defendant responded asking what Riley
meant by “ ‘F’ him up.” She also said she did not think they
needed to be ‘killing anyone yet.’
Riley sent defendant a text message directing her to tell her
uncle something was wrong with their toilet as a ruse to lure him
into the house. He asked what time her uncle would be at her
house. Defendant responded her uncle would be there around 10
a.m. before leaving for work. Riley sent defendant a text which
said, ‘Then lets do this and be free and do unto ppl that has been
done unto us.’ Riley said his intent was to kill defendant’s uncle.
Defendant responded texting ‘yes lets.’ Riley sent another text to
defendant, which read, ‘I love you more than anything you might
see a side of me tomorrow very few ppl see don’t be scared cuz i
would never hurt you.’ Riley sent defendant a message, texting, ‘I
am already know what i am doing don’t stop me soon you will
have to be cold.’ Defendant responded, texting, ‘Huh.’ Riley
texted her the following message, ‘Don’t stop me no matter how it
turns out.’
Shortly thereafter, Riley asked defendant if she found
bleach and a rag. Defendant replied she had. Riley also texted
-4- defendant asking whether she found a good strong knife.
Defendant responded the knives she found were not that sharp or
strong.
According to Riley, defendant told him her uncle
inappropriately touched her by rubbing her inner thigh and lower
back and kissing her on the cheek. Riley sent defendant a text,
which read, ‘Was just going to knock him out but he is touching
little girls and tried to touch my fiancé it ends tomorrow.’
Defendant replied, texting, ‘yea thats wat i thought you were
planing to do.’
Riley sent defendant another text, stating, ‘Lol i love you
you are starting to sound and act like me thats good.’ Defendant
responded, texting, ‘Lol I can be evil bad cruel sometimes lol.’
Riley replied, texting, ‘Be it more often just not to me ok baby it
will help us in the future a lot.’ Riley sent defendant another
message, texting, ‘Tomorrow we kill a bad man then we start our
lives over just you and me.’ Defendant responded, texting, ‘Yes
just you and me.’
Riley later asked defendant if she had a baseball bat.
Defendant said she did not. Defendant sent Riley a message,
stating, ‘Have bunch of metal rods in garage tho.’ They texted
about the size and strength of the rods. Riley sent defendant a
message, texting, ‘I don't want them to break i want them to be
-5- strong im thinking just cutting his throat.’ Defendant responded,
‘They wont break. Do wat you need to do. All i ask is that i see
none of it if possible.’ Defendant later texted Riley her uncle
deserved ‘it,’ but she did not want to see ‘it.’
Riley testified he texted defendant shortly after midnight on
July 12, 2010, ‘Be happy are you sure you want this to still
happen.’ He was talking about killing her uncle and running away.
Defendant responded, ‘I am happy. Yes i'm sure that i want to do
this.’
Riley sent defendant a text the morning of July 12, 2010,
asking if she was ‘ready for this baby.’ Defendant responded she
was. As he was traveling to Marshall, Riley and defendant
exchanged text messages about her family’s whereabouts. Riley
went to defendant’s house after her family left. Defendant got the
bleach, and they moved a couch in front of the entryway to the
kitchen. Riley put the bleach in a bowl and soaked the rag.
When defendant saw her uncle outside the house, she called
to him from the kitchen window and said something was wrong
with the bathroom. Defendant did not tell her uncle Riley was in
the house. After Arnulfo checked on the bathroom, defendant
pushed him at Riley. According to Riley, defendant told him to
remember what her uncle had done to her. Riley grabbed Arnulfo
by the throat and covered his mouth with the bleach-soaked rag.
-6- Although he could not see defendant at that time, he testified he
could ‘tell she was there.’
Riley testified the bleach did not knock Arnulfo out like he
expected. Instead, Arnulfo tried to hit Riley with a hammer. Riley
took the hammer from Arnulfo and hit him with it. The struggle
between Riley and Arnulfo went from the foyer to the dining room
of the home. Riley testified he did not know how many times he
hit the victim with the hammer. Arnulfo was still struggling, and
Riley hit him over the head with a VCR and then smashed a glass
tabletop over his head. The glass tabletop broke, and Riley
grabbed a piece of the glass and stabbed Arnulfo twice in his neck.
Arnulfo stopped struggling at that point. Riley then taped the
bleach-soaked rag over the victim’s mouth with the duct tape
defendant had brought into the house.
Riley testified Arnulfo was screaming defendant’s name
during the struggle, but she did nothing to aid him. After Riley
taped the rag over Arnulfo’s mouth, he saw defendant in the foyer,
shaking. Riley asked if she was okay, and she said yes. Defendant
went upstairs and grabbed her clothes and other things, which were
already packed. She and Riley then started loading the victim’s
truck. They left the house within 5 to 10 minutes after Arnulfo
was killed. After they got in Arnulfo’s truck, defendant asked
Riley if he got Arnulfo’s wallet. He told her he did not. He
-7- testified defendant ‘gave me a look,’ and he went back in and got
the wallet.
Riley testified defendant never tried to get away from him
or call the police. They were arrested in Camden, Tennessee.
According to Riley’s testimony, while he and defendant were
driving through Indiana, defendant told him she thought they
should live a life of crime like Bonnie and Clyde, robbing and
killing people.” People v. Pacheco, 2013 IL App (4th) 110409,
¶¶ 13-28, 991 N.E.2d 896.
¶6 Following the June 2011 trial, the jury convicted defendant of robbery by
accountability, unlawful possession of a stolen vehicle, and first-degree murder by
accountability.
¶7 In March 2011, the trial court held a sentencing hearing. The State argued
defendant actively participated in Riley’s plan to murder Arnulfo and admitted Arnulfo would
not be dead if she had not lured him into the trap. The State argued defendant’s young age was a
mitigating factor, but it should not outweigh her participation in the premeditated murder of her
uncle. The State recommended a sentence of 45 years’ imprisonment.
¶8 Defense counsel argued a minimum sentence of 20 years’ imprisonment was
appropriate. Defense counsel argued defendant was only 15 years old when she met Riley and
they decided to run away. Defendant was young and unsophisticated at the time of Arnulfo’s
murder and would not have been involved in such an event without Riley planning and executing
the murder. Counsel argued that normally defendant would have been prosecuted in juvenile
court because “it’s accepted that 15 and 16-year-olds do not always make rational decisions and
-8- are driven by immature decision making.” Counsel acknowledged the legislature determined the
age for criminal prosecution should be lower for first-degree murder but “[t]hat does not change
the fact that 15 and 16-year-olds do not think and act rationally as adults.”
¶9 The trial court began by noting the sentencing hearing was under Article 5 of the
Unified Code of Corrections (730 ILCS 5/5-5-1 et seq. (West 2010)) and related only to the
offense of first-degree murder. The court stated it “considered the presentence investigation
report, the nature and circumstances of the offense, [defendant]’s statement in allocution, the
evidence at trial, the arguments of counsel as to sentencing alternatives *** [and] each and every
one of the statutory factors in aggravation and mitigation.” The court noted the text messages
between defendant and Riley left no reasonable doubt that defendant knowingly planned, aided,
and abetted Arnulfo’s murder. The court discussed numerous factors in mitigation and
specifically addressed defendant’s age as follows:
“Third, the [d]efendant’s age. This relates probably to
factors eight and nine, or at least possibly nine. [Defendant] turned
16 two weeks before the murder, approximately. No one can know
how the actions of this juvenile were affected by her age and by
the involvement of Jarrod Riley, who is an adult, even if an
immature one.
The law acknowledges that juveniles are different than
adults and presupposes that juveniles generally have a greater
potential for rehabilitation. The evidence would suggest that
[defendant]’s potential for rehabilitation is greater than that of
most juveniles who probably find themselves in these
-9- circumstances as a result of their participation in murder. By the
time [defendant] is released from prison, she will be much older. It
is unlikely that the circumstances in which this crime was
committed will reoccur.”
The court again stated it “considered the nature and circumstances of the offense and the history,
character, age[,] and attitude of the [d]efendant,” and sentenced defendant to 30 years’
imprisonment.
¶ 10 This court affirmed defendant’s conviction and sentence on direct appeal. People
v. Pacheco, 2013 IL App (4th) 110409, 991 N.E.2d 896.
¶ 11 In June 2017, defendant filed a pro se postconviction petition. In her petition,
defendant raised a claim of actual innocence, arguing text messages show she had no knowledge
of Riley’s plan to kill Arnulfo. Defendant further argued the State failed to prove the elements of
first-degree murder. Defendant also alleged a violation of her eighth and fifth amendment rights
(U.S. Const., amends. VIII, V). Specifically, defendant alleged the three-year term of mandatory
supervised release violated her constitutional rights because it extended her sentence beyond the
maximum term of imprisonment to be served at 100%. Finally, defendant alleged she received
ineffective assistance of trial counsel where counsel failed to seek a psychological evaluation as
to her mental capacity. Defendant alleged “she was afraid of her codefendant whom was legally
an adult who was in a sexual relationship with a minor, and manipulat[ed] her youth and mind[,]
creating and facilitating the actions of this minor.” Defendant alleged trial counsel provided
ineffective assistance for failing to (1) provide that information during trial and (2) get defendant
“psychological testing before trial in this regard.”
- 10 - ¶ 12 In January 2018, appointed counsel filed a motion to request appointment of a
psychiatrist to evaluate defendant to determine if Riley’s control over her would have negated
the offense, assisted in defendant’s defense, or provided mitigation evidence at sentencing.
During the hearing on the motion, appointed counsel asserted she would file an amended
postconviction petition if a psychiatric evaluation helped defendant in any way. The trial court
denied the motion to appoint an expert.
¶ 13 In February 2018, appointed counsel filed a certificate pursuant to Illinois
Supreme Court Rule 651(c) (eff. July 1, 2017), asserting:
“(1) I have consulted with the [d]efendant by mail to
ascertain the defendant’s contentions of error in her pro se
[p]etition for [c]onviction [r]elief.
(2) I have examined portions of the trial court file and
partial report of the jury trial proceedings regarding the errors cited
in the [d]efendant’s pro se [p]etition for [p]ost [c]onviction [r]elief.
(3) Counsel does not intend to amend the defendant’s
[p]ro se [p]etition because she is unable to obtain supporting
affidavits from a psychiatrist based on the [c]ourt’s ruling on
February 26, 2018.”
In March 2018, the trial court dismissed defendant’s postconviction petition.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant argues she received unreasonable assistance of
postconviction counsel where counsel failed to shape defendant’s sentencing claim into proper
- 11 - legal form. Specifically, defendant argues postconviction counsel should have amended the
petition to argue the trial court failed to take defendant’s age into account at sentencing in
violation of the eighth amendment. The State asserts postconviction counsel was not required to
formulate new claims and the pro se petition did not raise even a gist of a claim that the 30-year
prison sentence violated the eighth amendment on account of defendant’s age.
¶ 17 The Post-Conviction Hearing Act provides for the appointment of counsel at the
second stage of proceedings. 725 ILCS 5/122-4 (West 2016). Appointed counsel must provide
“reasonable assistance,” including compliance with Illinois Supreme Court Rule 651(c) (eff. July
1, 2017). People v. Johnson, 154 Ill. 2d 227, 237-38, 609 N.E.2d 304, 309 (1993). “Rule 651(c)
requires that the record disclose that post-conviction trial counsel: (1) consulted with the
petitioner to ascertain his contentions of constitutional deprivation; (2) examined the record of
the proceeding of the original trial; and (3) made any amendments to the pro se petition
necessary to adequately present the petitioner’s constitutional contentions.” Id. at 238.
Appointed counsel is presumed to have provided defendant reasonable assistance of counsel
when a Rule 651(c) certificate is filed. People v. Mendoza, 402 Ill. App. 3d 808, 813, 931
N.E.2d 703, 707-08 (2010).
¶ 18 Here, defendant contends counsel failed to provide reasonable assistance where
she did not amend the postconviction petition to raise a claim that defendant’s 30-year sentence
violated the eighth amendment based on defendant’s age. Defendant argues the trial court
“openly rejected the central concepts that must underpin a juvenile sentence.” Defendant asserts
the trial court’s rejection of these concepts resulted in an improper sentence. The State argues
defendant’s pro se postconviction petition did not raise a constitutional claim that her sentence
- 12 - was improper because the trial court rejected the notion that being a juvenile could be taken into
account during sentencing.
¶ 19 Defendant’s postconviction petition raised a claim of actual innocence, arguing
text messages showed she had no knowledge of Riley’s plan to kill Arnulfo. Defendant further
argued the State failed to prove the elements of first-degree murder. Defendant also alleged a
violation of her eighth and fifth amendment rights. Specifically, defendant alleged the three-year
term of mandatory supervised release violated her constitutional rights because it extended her
sentence beyond the maximum term of imprisonment to be served at 100%. Finally, defendant
alleged she received ineffective assistance of trial counsel where counsel failed to seek a
psychological evaluation as to her mental capacity. Defendant alleged “she was afraid of her
codefendant whom was legally an adult who was in a sexual relationship with a minor, and
manipulat[ed] her youth and mind[,] creating and facilitating the actions of this minor.”
Defendant alleged trial counsel provided ineffective assistance for failing to (1) provide that
information during trial and (2) get defendant “psychological testing before trial in this regard.”
¶ 20 Nothing in defendant’s pro se postconviction petition indicates a claim that her
sentence was improper because the trial court explicitly refused to consider her age at
sentencing. Defendant’s only eighth amendment claim addressed the propriety of a three-year
term of mandatory supervised release. Counsel’s duty to amend a pro se postconviction petition
is limited by the constitutional claims raised by defendant. People v. Richardson, 382 Ill. App.
3d 248, 258, 888 N.E.2d 553, 561 (2008). Postconviction counsel is not required to formulate
new claims. People v. Vasquez, 356 Ill. App. 3d 420, 424-25, 824 N.E.2d 1071, 1076 (2005).
¶ 21 Even if counsel had raised the claim defendant raises on appeal, we conclude this
eighth amendment claim is frivolous and patently without merit. Miller v. Alabama, 567 U.S.
- 13 - 460, 489 (2012), stands for the proposition that a court must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for juveniles. A life
sentence for a juvenile, whether mandatory or discretionary, is disproportionate and violates the
eighth amendment unless the court considers the defendant’s youth and its attendant
characteristics. People v. Holman, 2017 IL 120655, ¶ 40, 91 N.E.3d 849. Therefore, an eighth
amendment claim exists where a juvenile (1) received a “life sentence, mandatory or
discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its
attendant characteristics in imposing the sentence.” People v. Buffer, 2019 IL 122327, ¶ 27, 137
N.E.3d 763. The Illinois Supreme Court has held that a 40-year term of imprisonment without
parole eligibility is long enough to be considered a de facto life sentence. Id. ¶ 40.
¶ 22 Here, defendant did not receive a life sentence. Defendant was sentenced to a
term of 30 years’ imprisonment. The Illinois Supreme Court has established a bright-line rule
that 40 years is a de facto life sentence. Obviously, defendant’s sentence does not reach that
threshold. Moreover, we find defendant mischaracterizes the record in this case. Defendant
repeatedly asserts the trial court “openly rejected” the notion of taking defendant’s youth into
account. But the trial court expressly stated it found defendant’s age to be a mitigating factor.
The court stated, “No one can know how the actions of this juvenile were affected by her age and
by the involvement of Jarrod Riley, who is an adult, even if an immature one.” But the court
went on to acknowledge the law recognizes juveniles are different from adults. A fair reading of
the trial court’s entire remarks on sentencing indicates the judge considered a wide range of
factors and took into account defendant’s age in mitigation. The complained-of comment that
“no one can know how” defendant’s actions were affected by her age is more fairly read as
- 14 - indicating an inability to quantify defendant’s age, not a refusal to consider her age.
Accordingly, we affirm the judgment of the trial court.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the trial court’s judgment.
¶ 25 Affirmed.
- 15 -