People v. Velasco
127 N.E.3d 53
Ill. App. Ct.2019Background
- In 1999 Jose Velasco was convicted of first-degree murder for the fatal shooting of 15-year-old Juan Luna based largely on eyewitness identifications by Andrea Thomas and Michelle Scott; Velasco was sentenced to 45 years.
- Velasco filed an amended postconviction petition (2013) alleging actual innocence based on newly discovered witness statements/affidavits identifying an Ambrose gang member (Miguelito/Miguel Perez) as the shooter, and ineffective assistance of trial counsel for failing to call alibi witnesses.
- Supporting materials included: unnotarized recantation by Andrea Thomas and an unnotarized statement by Claudia Cruz (both later excluded at the second stage because not sworn); sworn affidavits from Max Hernandez and Erica Vargas (eyewitnesses placing Miguelito at the scene), and hearsay affidavits from Jonathan Meskauskas and Lynda Tricarico (relaying Ambrose admissions).
- At the second stage the court dismissed the actual-innocence claim; at the third stage the court held an evidentiary hearing and denied the ineffective-assistance claim.
- The appellate court reversed the second-stage dismissal and remanded for a third-stage evidentiary hearing on actual innocence (taking the admissible new affidavits as true at second stage), but affirmed the third-stage denial of ineffective assistance (finding counsel’s investigation and strategic choice not to present alibi witnesses reasonable and not prejudicial).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether second-stage dismissal of actual-innocence claim was proper | State: many supporting statements are procedurally deficient or cumulative; some are hearsay and insufficient | Velasco: new, material, noncumulative affidavits (Hernandez, Vargas, Meskauskas, Tricarico) establish probable innocence and warrant a third-stage hearing | Reversed: admissible sworn affidavits, taken together, make a substantial showing of actual innocence and case remanded for third-stage hearing |
| Whether unnotarized witness statements may support the petition at second stage | State: unnotarized statements are not affidavits and may be disregarded under §122‑2 | Velasco: unnotarized statements constitute “other evidence” and should be considered | Court: unnotarized statements (Thomas, Cruz) may be disregarded at second stage because counsel failed to cure notarization defect; they were excluded |
| Whether hearsay affidavits are admissible at second stage | State: hearsay-only affidavits are generally insufficient | Velasco: hearsay rules don’t apply to postconviction hearings (Ill. R. Evid. 1101) and hearsay affidavits should be considered at second stage | Court: Rule 1101(b)(3) makes hearsay admissible at postconviction hearings; hearsay affidavits are taken as true at second stage and may be considered (but will be tested later at third stage) |
| Whether trial counsel was ineffective for not calling alibi witnesses | Velasco: counsel failed to investigate or misapprehended alibi location; witnesses would have produced reasonable probability of different outcome | State: counsel investigated, witnesses were inconsistent, had credibility problems, and presenting them risked damage by impeachment and exposing defendant’s prior false alibis | Affirmed: court found counsel’s investigation and strategic decision reasonable; no prejudice shown under Strickland |
Key Cases Cited
- People v. Coleman, 183 Ill. 2d 366 (Ill. 1998) (at second stage well-pleaded facts that are not rebutted by the record are taken as true; credibility and fact-finding are for evidentiary stage)
- People v. Allen, 2015 IL 113135 (Ill. 2015) (unnotarized statement may qualify as “other evidence” at first stage but notarization defects can be challenged at second stage)
- People v. Domagala, 2013 IL 113688 (Ill. 2013) (standards for advancing postconviction claims through stages)
- People v. Sanders, 2016 IL 118123 (Ill. 2016) (to succeed on actual innocence petition new evidence must be so conclusive that no reasonable juror would find guilt after retrial)
- People v. Gonzalez, 2016 IL App (1st) 141660 (Ill. App. Ct. 2016) (new evidence must be considered collectively when evaluating whether it would likely change the outcome)