2020 IL App (1st) 172179-U FIFTH DIVISION SEPTEMBER 4, 2020
No. 1-17-2179
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 88 CR 2755 ) FRANCISCO SANDOVAL, ) Honorable ) Timothy J. Joyce, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in dismissing the defendant’s postconviction petition.
¶2 Following his conviction for first degree murder and aggravated battery, the defendant-
appellant, Francisco Sandoval, filed a pro se postconviction petition. The defendant now appeals.
For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶3 BACKGROUND
¶4 In the interest of clarity and brevity, we will present only the facts pertinent to this order.
For a full recitation of facts leading up to this appeal, see People v. Sandoval, No. 1-09-2415 1-17-2179
(2011) (unpublished order under Illinois Supreme Court Rule 23(c)).
¶5 In February 1988, the defendant was charged with first degree murder, aggravated battery,
and armed violence for a shooting that occurred on September 6, 1978. The shooting, which
happened at 16th Street and Union Avenue in Chicago, killed Armando Ruiz and severely injured
Elizabeth Banda-Dammar. During her hospitalization, Ms. Banda-Dammar identified the
defendant, in a police photograph, as the shooter.
¶6 Ten years later, in 1988, the police located the defendant in California and extradited him
to Chicago. At the police station, the police interviewed the defendant and he made an inculpatory
statement indicating that he was involved in the shooting. Ms. Banda-Dammar also positively
identified the defendant, in a police lineup, as the shooter.
¶7 The defendant was then charged with first degree murder, aggravated battery, and armed
violence. The defendant posted bail and was released on bond. The defendant subsequently
appeared at a few court dates, but he failed to appear in court on September 14, 1988. Thereafter,
a warrant was issued for the defendant’s arrest. On January 11, 2006, the defendant was located in
California. He was, again, arrested and extradited to Chicago.
¶8 On May 27, 2009, a jury trial commenced. Ms. Banda-Dammar testified and positively
identified the defendant in court as the shooter. The defendant did not testify and did not present
any evidence of an alibi. At the conclusion of the trial, the defendant was found guilty of first
degree murder and aggravated battery. The trial court sentenced the defendant to 35 years’
imprisonment for first degree murder and 5 years’ imprisonment for aggravated battery, to be
served concurrently.
-2- 1-17-2179
¶9 On direct appeal, the defendant argued that he received ineffective assistance of counsel
when his defense counsel failed to: file a motion to suppress Ms. Banda-Dammar’s police lineup
identification; object to Ms. Banda-Dammar’s in-court identification; and present a credible
defense to the jury. Sandoval, No. 1-09-2415 at 5. He also argued that he was entitled to additional
sentencing credit for time served in pre-sentence custody. Id. This court rejected the defendant’s
ineffective assistance of counsel arguments and affirmed his convictions. Id. at 8. We also ordered
the mittimus corrected to reflect the defendant’s proper credit for pre-sentence custody. Id. at 9-
10.
¶ 10 On April 28, 2017, the defendant filed the pro se postconviction petition at issue. His
petition alleged that he received ineffective assistance of trial counsel because his defense counsel
failed to investigate two alibi witnesses: his brother, Efren Sandoval (Efren), and his girlfriend at
the time of the shooting, Elba Ruiz (Elba). In his petition, the defendant alleged that Efren and
Elba “could have corroborated” his alibi and testified that he was living in California at the time
of the shooting. The defendant accordingly argued that he received ineffective assistance when his
defense counsel failed to contact Efren and Elba or call them as witnesses. The defendant’s petition
also alleged that he was actually innocent, that he had been coerced into giving an inculpatory
statement, and that the trial court failed to properly admonish him that he is required to serve a
term of mandatory supervision upon his release.
¶ 11 On May 12, 2017, the trial court entered an order dismissing the defendant’s petition. The
trial court dismissed the defendant’s ineffective assistance of counsel claim on several grounds.
First, the trial court found that the defendant had waived the claim because he did not raise it in
his direct appeal. The trial court further held that, regardless of waiver, the defendant’s ineffective
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assistance of counsel claim was meritless where the decision to call witnesses is a matter of trial
strategy. And finally, the trial court noted that, even if the defendant’s claim had merit, the
defendant neither attached affidavits from Efren and Elba nor explained why they were not
attached. The trial court stated that this failure was “fatal to [the defendant’s] claim.” The
defendant subsequently appealed.
¶ 12 ANALYSIS
¶ 13 We note that we have jurisdiction to review the trial court’s judgment, as this court allowed
the defendant to file a late notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606(c) (eff.
July 1, 2017).
¶ 14 The defendant raises the following sole issue: whether the trial court erred in dismissing
his postconviction petition claim that he received ineffective assistance of counsel. 1 The defendant
argues that his petition established an arguable basis that he received ineffective assistance of
counsel when his defense counsel failed to investigate Efren and Elba or call them as alibi
witnesses. The defendant claims that, postconviction petitions in the first stage of proceedings,
such as his, are “judged by a lower pleading standard” and “construed liberally.” Relying upon
People v. Hodges, 234 Ill. 2d 1 (2009), the defendant avers that it was not necessary for him to
attach affidavits from Efren and Elba during the first stage of proceedings, especially since he was
filing the petition pro se while imprisoned. He asks us to remand the case back to the trial court
and order further proceedings on his petition.
¶ 15 The Post-Conviction Hearing Act (Act) provides a procedural mechanism through which
a criminal defendant can assert that his constitutional rights were substantially violated in his
1 The defendant does not challenge the trial court’s dismissal of his other postconviction petition claims.
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original trial or sentencing hearing. 725 ILCS 5/122-1 (West 2016); People v. Pitsonbarger, 205
Ill. 2d 444, 455 (2002).
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2020 IL App (1st) 172179-U FIFTH DIVISION SEPTEMBER 4, 2020
No. 1-17-2179
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 88 CR 2755 ) FRANCISCO SANDOVAL, ) Honorable ) Timothy J. Joyce, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in dismissing the defendant’s postconviction petition.
¶2 Following his conviction for first degree murder and aggravated battery, the defendant-
appellant, Francisco Sandoval, filed a pro se postconviction petition. The defendant now appeals.
For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶3 BACKGROUND
¶4 In the interest of clarity and brevity, we will present only the facts pertinent to this order.
For a full recitation of facts leading up to this appeal, see People v. Sandoval, No. 1-09-2415 1-17-2179
(2011) (unpublished order under Illinois Supreme Court Rule 23(c)).
¶5 In February 1988, the defendant was charged with first degree murder, aggravated battery,
and armed violence for a shooting that occurred on September 6, 1978. The shooting, which
happened at 16th Street and Union Avenue in Chicago, killed Armando Ruiz and severely injured
Elizabeth Banda-Dammar. During her hospitalization, Ms. Banda-Dammar identified the
defendant, in a police photograph, as the shooter.
¶6 Ten years later, in 1988, the police located the defendant in California and extradited him
to Chicago. At the police station, the police interviewed the defendant and he made an inculpatory
statement indicating that he was involved in the shooting. Ms. Banda-Dammar also positively
identified the defendant, in a police lineup, as the shooter.
¶7 The defendant was then charged with first degree murder, aggravated battery, and armed
violence. The defendant posted bail and was released on bond. The defendant subsequently
appeared at a few court dates, but he failed to appear in court on September 14, 1988. Thereafter,
a warrant was issued for the defendant’s arrest. On January 11, 2006, the defendant was located in
California. He was, again, arrested and extradited to Chicago.
¶8 On May 27, 2009, a jury trial commenced. Ms. Banda-Dammar testified and positively
identified the defendant in court as the shooter. The defendant did not testify and did not present
any evidence of an alibi. At the conclusion of the trial, the defendant was found guilty of first
degree murder and aggravated battery. The trial court sentenced the defendant to 35 years’
imprisonment for first degree murder and 5 years’ imprisonment for aggravated battery, to be
served concurrently.
-2- 1-17-2179
¶9 On direct appeal, the defendant argued that he received ineffective assistance of counsel
when his defense counsel failed to: file a motion to suppress Ms. Banda-Dammar’s police lineup
identification; object to Ms. Banda-Dammar’s in-court identification; and present a credible
defense to the jury. Sandoval, No. 1-09-2415 at 5. He also argued that he was entitled to additional
sentencing credit for time served in pre-sentence custody. Id. This court rejected the defendant’s
ineffective assistance of counsel arguments and affirmed his convictions. Id. at 8. We also ordered
the mittimus corrected to reflect the defendant’s proper credit for pre-sentence custody. Id. at 9-
10.
¶ 10 On April 28, 2017, the defendant filed the pro se postconviction petition at issue. His
petition alleged that he received ineffective assistance of trial counsel because his defense counsel
failed to investigate two alibi witnesses: his brother, Efren Sandoval (Efren), and his girlfriend at
the time of the shooting, Elba Ruiz (Elba). In his petition, the defendant alleged that Efren and
Elba “could have corroborated” his alibi and testified that he was living in California at the time
of the shooting. The defendant accordingly argued that he received ineffective assistance when his
defense counsel failed to contact Efren and Elba or call them as witnesses. The defendant’s petition
also alleged that he was actually innocent, that he had been coerced into giving an inculpatory
statement, and that the trial court failed to properly admonish him that he is required to serve a
term of mandatory supervision upon his release.
¶ 11 On May 12, 2017, the trial court entered an order dismissing the defendant’s petition. The
trial court dismissed the defendant’s ineffective assistance of counsel claim on several grounds.
First, the trial court found that the defendant had waived the claim because he did not raise it in
his direct appeal. The trial court further held that, regardless of waiver, the defendant’s ineffective
-3- 1-17-2179
assistance of counsel claim was meritless where the decision to call witnesses is a matter of trial
strategy. And finally, the trial court noted that, even if the defendant’s claim had merit, the
defendant neither attached affidavits from Efren and Elba nor explained why they were not
attached. The trial court stated that this failure was “fatal to [the defendant’s] claim.” The
defendant subsequently appealed.
¶ 12 ANALYSIS
¶ 13 We note that we have jurisdiction to review the trial court’s judgment, as this court allowed
the defendant to file a late notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606(c) (eff.
July 1, 2017).
¶ 14 The defendant raises the following sole issue: whether the trial court erred in dismissing
his postconviction petition claim that he received ineffective assistance of counsel. 1 The defendant
argues that his petition established an arguable basis that he received ineffective assistance of
counsel when his defense counsel failed to investigate Efren and Elba or call them as alibi
witnesses. The defendant claims that, postconviction petitions in the first stage of proceedings,
such as his, are “judged by a lower pleading standard” and “construed liberally.” Relying upon
People v. Hodges, 234 Ill. 2d 1 (2009), the defendant avers that it was not necessary for him to
attach affidavits from Efren and Elba during the first stage of proceedings, especially since he was
filing the petition pro se while imprisoned. He asks us to remand the case back to the trial court
and order further proceedings on his petition.
¶ 15 The Post-Conviction Hearing Act (Act) provides a procedural mechanism through which
a criminal defendant can assert that his constitutional rights were substantially violated in his
1 The defendant does not challenge the trial court’s dismissal of his other postconviction petition claims.
-4- 1-17-2179
original trial or sentencing hearing. 725 ILCS 5/122-1 (West 2016); People v. Pitsonbarger, 205
Ill. 2d 444, 455 (2002). The “petition shall have attached thereto affidavits, records, or other
evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-
2 (West 2016). A postconviction proceeding contains three distinct stages. People v. Gallano, 2019
IL App (1st) 160570, ¶ 22. The trial court may dismiss a petition during the first stage if it
determines that the petition is frivolous or patently without merit. Id. We review de novo a trial
court’s first-stage dismissal of a postconviction petition. People v. Shipp, 2015 IL App (2d)
131309, ¶ 7.
¶ 16 As most postconviction petitions are drafted by pro se defendants, the threshold for a
petition to survive the first stage of proceedings is low. People v. Allen, 2015 IL 113135, ¶ 24.
However, this low threshold does not excuse a pro se petitioner from providing factual support for
his claims. Id. He must still supply a sufficient factual basis to support the allegations in the
petition. Id. So while the defendant is correct that the standard for a pro se petition to survive the
first stage of proceedings is low, that is not the same as no standard at all.
¶ 17 Indeed, the Act specifically requires petitioners to attach affidavits or similar evidence
supporting their allegations, or in the alternative, to explain why such evidence is not attached. 725
ILCS 5/122-2; People v. Wideman, 2013 IL App (1st) 102273, ¶ 15. Failure to comply with this
statutory requirement is a sufficient basis for summary dismissal. Wideman, 2013 IL App (1st)
102273, ¶ 15. The defendant contends that he should be excused from this requirement because he
filed his petition pro se while imprisoned. Yet, as we have already stated, most postconviction
petitions are drafted by pro se, imprisoned defendants. If being pro se and imprisoned excused a
petitioner from the statutory requirement of attaching affidavits or similar evidence, there would
-5- 1-17-2179
be no reason to even have the requirement. We also note that, although the defendant is currently
incarcerated, the affidavits he needed to attach were from his brother and ex-girlfriend;
conceivably people he could easily contact. Alternatively, the defendant could have explained, in
his petition, why he was unable to secure the necessary affidavits.
¶ 18 It is true that the lack of affidavits is not fatal to a postconviction claim alleging ineffective
assistance of counsel. People v. Dupree, 2018 IL 122307, ¶¶ 33-34. However, “the record or other
evidence attached to the petition” must support the defendant’s allegations to avoid a first-stage
dismissal. Id. ¶ 34. In fact, in People v. Hodges, 234 Ill. 2d 1, 10 (2009), which the defendant relies
upon, our supreme court reiterated that while the threshold for a pro se petition to survive the first
stage of proceedings is low, the petition still must set forth some facts which can be corroborated,
or contain some explanation as to why those facts are absent. Not only did the defendant in this
case fail to attach any affidavits or explain their absence, he also failed to provide any kind of
support or evidence for his allegations. He only generally stated that Efren and Elba would have
testified that he lived in California at the time of the shooting; a statement that was, notably, not
supported by the record. This was insufficient for the trial court to adequately consider the merits
of the claim, and in turn, insufficient to survive the first stage of postconviction proceedings.
Accordingly, the trial court did not err in dismissing the defendant’s postconviction petition. 2
¶ 19 CONCLUSION
¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 21 Affirmed.
2 We acknowledge that the trial court dismissed the defendant’s petition on additional grounds. However, we can affirm on any grounds in the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. People v. Brown, 2017 IL App (1st) 142877, ¶ 39.
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