People v. Reyes

2020 IL App (4th) 180190-U

• Court: Appellate Court of Illinois
• Decided: May 5, 2020
• Docket: 4-18-0190
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180190-U FILED This order was filed under Supreme May 5, 2020 Court Rule 23 and may not be cited NO. 4-18-0190 Carla Bender as precedent by any party except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Morgan County VICTOR REYES, ) No. 97CF73 Defendant-Appellant. ) ) Honorable ) Christopher E. Reif, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.

ORDER ¶1 Held: We grant the Office of the State Appellate Defender’s motion to withdraw as counsel and affirm the trial court’s order dismissing defendant’s postconviction petition.

¶2 This case comes to us on the motion of the Office of the State Appellate Defender

(OSAD) to withdraw as counsel on the ground no meritorious issues can be raised in this case.

We grant OSAD’s motion and affirm the trial court’s judgment.

¶3 I. BACKGROUND

¶4 On direct appeal, this court set forth all the relevant facts in this case. People v.

Reyes, No. 4-98-0787 (2000) (unpublished order under Illinois Supreme Court Rule 23).

Accordingly, we recite below only those facts relevant to resolve the issues involved in this

appeal. ¶5 On May 28, 1997, the State charged defendant, Victor Reyes, by information with

first degree murder (720 ILCS 5/9-1(a)(2) (West 1996)) (count I), reckless homicide (id. § 9-

3(a)) (count II), attempted first degree murder (id. § 8-4(a)) (count III), aggravated battery of a

senior citizen (id. § 12-4.6(a)) (count IV), residential burglary (id. § 19-3) (count V), and theft

(id. § 16-1(a)(1)) (count VI). (The State later moved to dismiss the reckless homicide charge.)

¶6 Following an August 1998 trial, a jury found defendant guilty of all counts. In

October 1998, the trial court sentenced defendant to a 50-year prison term for first degree murder

and a mandatory consecutive 20-year term for attempted first degree murder. The court also

imposed three concurrent 5-year sentences for each of the three remaining counts.

¶7 Defendant appealed, arguing (1) the trial court erred by denying his motion to

suppress; (2) the State failed to prove him guilty beyond a reasonable doubt of first degree

murder; (3) he received ineffective assistance of counsel due to his counsel’s failure to sever

charges and call witnesses; (4) the prosecutor’s comments during closing argument about a

“reasonable person standard” for first degree murder denied him a fair trial; (5) the trial court’s

refusal to define reasonable doubt to the jury resulted in a denial of due process; (6) the trial

court erred by finding consecutive sentences mandatory; and (7) the trial court failed to properly

award sentencing credit. Reyes, slip order at 1-2. This court affirmed defendant’s convictions and

sentence and remanded with directions for the sentencing credit issue. Id. at 2.

¶8 On December 28, 2017, defendant pro se filed a petition for postconviction relief

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2016)), alleging

(1) ineffective assistance of trial counsel and (2) the first degree murder statute was facially

unconstitutional. Specifically, defendant alleged he was denied the effective assistance of trial

counsel when his attorney failed to object to the State’s attorney’s “erroneous misstatement of

-2- the law regarding what constitute[s] the offense of reckless homicide” during closing argument.

On February 23, 2018, the trial court entered a written order dismissing the petition as patently

without merit.

¶9 Defendant appealed the trial court’s summary dismissal of his postconviction

petition, and OSAD was appointed to represent him on appeal. In November 2019, OSAD

moved to withdraw as counsel on appeal. The record shows defendant filed a response on

December 13, 2019.

¶ 10 II. ANALYSIS

¶ 11 OSAD contends no meritorious argument can be made the trial court erred in

summarily dismissing defendant’s postconviction petition. We agree.

¶ 12 A. The Act

¶ 13 The Act provides a mechanism for a criminal defendant to challenge his

conviction or sentence based on a substantial violation of federal or state constitutional rights.

People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). Proceedings under the Act

are collateral in nature and not an appeal from the defendant’s conviction or sentence. People v.

English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. Once a defendant files a petition for

postconviction relief, the trial court may, during this first stage of the proceedings, enter a

dismissal order within 90 days if it finds the petition is “frivolous or is patently without merit.”

725 ILCS 5/122-2.1(a)(2) (West 2016). “A post-conviction petition is considered frivolous or

patently without merit only if the allegations in the petition, taken as true and liberally construed,

fail to present the gist of a constitutional claim.” (Internal quotation marks omitted.) People v.

Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001).

-3- ¶ 14 “Issues that were raised and decided on direct appeal are barred by res judicata,

and issues that could have been raised on direct appeal, but were not, are forfeited.” English,

2013 IL 112890, ¶ 22. The doctrines of res judicata and forfeiture may be relaxed “where the

forfeiture stems from the ineffective assistance of appellate counsel, or where the facts relating to

the issue do not appear on the face of the original appellate record.” Id.

¶ 15 We review the trial court’s summary dismissal of a postconviction petition

de novo. Edwards, 197 Ill. 2d at 247.

¶ 16 B. Ineffective Assistance of Counsel

¶ 17 OSAD asserts it can make no colorable argument in support of defendant’s claim

of ineffective assistance of trial counsel.

¶ 18 To demonstrate ineffective assistance of counsel, a defendant must show

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

performance resulted in prejudice to the defendant such that, but for counsel’s errors, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). If a defendant fails to prove either prong of the Strickland test, his claim for ineffective

assistance of counsel must fail. People v. Sanchez, 169 Ill. 2d 472, 487, 662 N.E.2d 1199, 1208

(1996). In the context of postconviction proceedings, “a petition alleging ineffective assistance

may not be summarily dismissed if (i) it is arguable that counsel’s performance fell below an

objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.”

(Emphasis added.) People v. Hodges, 234 Ill. 2d 1, 17, 912 N.E.2d 1204, 1212 (2009).

¶ 19 Here, defendant alleged his trial counsel was ineffective when he failed to object

to the State’s “erroneous misstatement of the law regarding what constitute[s] the offense of

reckless homicide” during closing argument. Defendant does not allege ineffective assistance of

-4- his appellate counsel, and the factual basis for defendant’s claim appears in the trial court record.

Defendant could have raised this issue on direct appeal but did not. We therefore agree with

OSAD defendant’s claim is procedurally barred.

¶ 20 Even if defendant’s claim were not barred, it is meritless. Defendant argues his

trial counsel was ineffective for failing to object when the Morgan County State’s Attorney made

the following remarks during closing argument:

“Driving blind, unable to control this vehicle, driving down the road.

Now, if during this time period as you’re realizing this and trying to—and trying

to stop, if at that point you hit a bicyclist, then I could see at that point saying,

‘Yes, guilty of reckless homicide’ because you’ve breached that standard of care

just by getting in the car in the first place but you’re trying to stop.

I can see reckless homicide at that point but, folks, what did [defendant]

do? What did he do even according to his own best evidence after he found that

he couldn’t drive, couldn’t see and couldn’t control the car?

Did he stop? No, he kept driving and driving and drove over two miles, up

these roads, turning left, turning right. Up this road, continued to drive.

Continued to drive even after he realized, according to his best evidence,

that he was driving an out of control two thousand pound metal bullet straight

down a two-lane road. This goes beyond being merely reckless.

A reasonable person would know that there is a strong probability of death

or great bodily harm to someone else on that road under those circumstances.

***

-5- This is not recklessness, this goes beyond recklessness. This is murder and

that’s the result, if you believe strictly the defendant’s version in the light most

favorable to him ***.”

¶ 21 Improper remarks during closing argument warrant reversal only when they result

in substantial prejudice to the defendant, considering the content of the language, its relationship

to the evidence, and its effect on the defendant’s right to a fair and impartial trial. People v.

Kliner, 185 Ill. 2d 81, 151-52, 705 N.E.2d 850, 886 (1998). Substantial prejudice occurs when

the verdict would have been different absent the improper remark. People v. Quiroz, 257 Ill.

App. 3d 576, 585, 628 N.E.2d 542, 549 (1993). When reviewing allegations of improper closing

arguments, the argument must be examined in its entirety and the complained-of comments must

be placed in the proper context. People v. Buckley, 282 Ill. App. 3d 81, 89, 668 N.E.2d 1082,

1088 (1996). “A misstatement of the law during closing argument does not normally constitute

reversible error if the circuit court properly instructs the jury on the law, as counsel’s arguments

are construed to carry less weight with the jury than do instructions from the circuit court.” Id. at

89-90.

¶ 22 Here, the state’s attorney’s statements did not constitute a misstatement on the

law of reckless homicide; rather, the State was arguing defendant’s actions showed a knowing,

rather than reckless, mental state.

¶ 23 Even assuming arguendo the state’s attorney misstated the law, defendant

suffered no prejudice. Following defense counsel’s request for a reckless homicide jury

instruction as a lesser-included offense of first degree murder, the court gave the reckless

homicide instructions and properly advised the jury of the law. The trial court further instructed

the jury that closing arguments do not constitute evidence. Finally, defense counsel also correctly

-6- stated the law of reckless homicide during closing argument. Considering the State’s comments

in this context, it is not arguable the jury was misled on the law of reckless homicide and, but for

defense counsel’s failure to object to the State’s alleged misstatements, the outcome of

defendant’s case would have been different. Accordingly, we agree with OSAD it is not arguable

defendant was denied the effective assistance of counsel.

¶ 24 C. Constitutionality of Intentional Murder Statute

¶ 25 OSAD further asserts it can make no colorable argument in support of defendant’s

claim the knowing first degree murder statute under which he was convicted (720 ILCS 5/9-

1(a)(2) (1996)) is indistinguishable from the reckless homicide and involuntary manslaughter

statute (id. § 9-3(a)), and therefore, the more severe penalty associated with section 9-1(a)(2)

violates the due process, equal protection, and proportionate penalties clauses of the Illinois

Constitution. See Ill. Const. 1970, art. I, §§ 2, 11.

¶ 26 Contrary to defendant’s assertions, 720 ILCS 5/9-1(a)(2) and 720 ILCS 5/9-3(a)

are separate and distinct statutes covering different offenses; 720 ILCS 5/9-1(a)(2) defines first

degree murder and 720 ILCS 5/9-3(a) defines involuntary manslaughter and reckless homicide.

The statutes are distinguishable because they provide different penalties and require different

mental states. Moreover, neither of these statutes have been found to be facially unconstitutional.

Here, the jury was instructed as to both first degree murder and reckless homicide and found

defendant’s actions constituted knowing first degree murder. Accordingly, we agree with OSAD

defendant did not raise an arguably meritorious claim the first degree murder statute is

unconstitutional.

¶ 27 III. CONCLUSION

-7- ¶ 28 For the reasons stated, we agree no meritorious issue can be raised on appeal. We

grant counsel’s motion to withdraw as appellate counsel and affirm the trial court’s judgment.

¶ 29 Affirmed.

-8-