People v. Romero
36 N.E.3d 323
Ill. App. Ct.2015Background
- On Dec. 4, 2008 Juan Romero fled from two Chicago police officers and fired two shots; one struck Officer Olson in the clavicle. Romero was convicted by a jury of aggravated battery with a firearm and aggravated discharge of a firearm, acquitted of attempted murder.
- At sentencing the trial court emphasized Romero’s juvenile weapons adjudications and Olson’s serious injury, and remarked: “Fortunately for Olson the defendant was a little worse shot than he thought he would have been.” The court imposed consecutive terms totaling 42 years (30 + 12).
- Romero’s direct appeal affirmed convictions and sentence; the court noted the trial court considered mitigating factors but also observed prior adjudications and the officer’s injury were appropriate aggravating factors.
- Romero filed a verified postconviction petition claiming, inter alia, that trial and appellate counsel were ineffective for failing to argue the trial court relied on improper (acquitted) conduct—i.e., a level of intent akin to attempted murder—when sentencing.
- The circuit court summarily dismissed the petition as frivolous and barred by res judicata or forfeiture; Romero appealed.
- The appellate court held Romero’s allegation presented an arguable claim of ineffective assistance because the sentencing remark arguably reflected reliance on acquitted conduct and counsel failed to raise the issue; the matter was remanded for second-stage postconviction proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Romero) | Held |
|---|---|---|---|
| Whether Romero’s petition was barred by res judicata/forfeiture | The direct appeal adjudicated sentencing issues; Romero could have raised this; remarks were limited and proper factors considered | The sentencing remark shows the court relied on acquitted conduct (attempted murder) and counsel was ineffective for not raising it | Not barred; appellate court found an arguable claim of ineffective assistance and reversed dismissal |
| Whether the trial court relied on improper (acquitted) conduct in aggravation | The court’s remarks were not a finding of intent to kill and were supported by appropriate aggravating facts | The comment that Romero was “a little worse shot” shows the court applied a level of intent inconsistent with the jury’s acquittal of attempted murder | Arguably improper reliance on acquitted conduct existed such that counsel’s failure to raise it was arguably deficient and prejudicial |
| Whether counsel (trial/appellate) was ineffective for failing to raise improper-factor argument | Failure to raise on appeal was reasonable; sentencing was within statutory range and record supported factors | Counsel should have raised plain-error claim because reliance on improper factor affects fundamental liberty | Counsel’s performance was arguably deficient and prejudice was arguable; petition survives first-stage review |
| Remedy at first stage of Post-Conviction Act | Dismissal as frivolous and patently without merit | Petition should proceed to second-stage proceedings | Reverse summary dismissal and remand for second-stage proceedings |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standards for ineffective assistance of counsel)
- People v. Hodges, 234 Ill. 2d 1 (postconviction: petition survives first stage if arguable counsel deficiency and prejudice)
- People v. La Pointe, 88 Ill. 2d 482 (use of uncross‑examined evidence of unconvicted conduct at sentencing)
- People v. Albanese, 104 Ill. 2d 504 (adoption of Strickland standard in Illinois)
- People v. Rivera, 198 Ill. 2d 364 (postconviction practice: docketing whole petition if any claim survives)
- People v. Kopczick, 312 Ill. App. 3d 843 (reliance on improper sentencing factor may merit plain error review)