People v. MontesPeople v. Montes
- Reporters:
- , ,
- Before:
- Jorgensen, McLaren, Hutchinson
Presiding Justice McLaren and Justice Hutchinson concurred in the judgment.
ORDER
¶ 1 Held: The trial court‘s second-stage dismissal of defendant‘s successive postconviction petition is affirmed in part, reversed in part, and the cause remanded.
¶ 2 Pursuant to section 122-1(f) of the Post-Conviction Hearing Act (Act) (
¶ 3 I. BACKGROUND
¶ 4 A. Trial and Direct Appeal
¶ 5 In 2010, after a trial in absentia, defendant was convicted of attempted first-degree murder (
¶ 6 Further, one of the vehicle‘s occupants, Blake Pannell, was acting as a government informant and recorded the event on a recording device he had been wearing. Pannell testified at trial on the State‘s behalf, in part explaining that defendant saw Ramos and believed him to be a member of a rival gang. Defendant left the vehicle with a gun, attempting to catch up with Ramos, but he returned to the vehicle when Ramos ran off. Defendant said that he knew where Ramos
¶ 7 In addition, the State played for the jury a portion of Pannell‘s recording of the event. The recording included the sound of a gunshot, as well as defendant saying, “I had to bump that ‘nigga,‘” (which means kill him), “it was all over for him,” “I was chasin‘, chasing down the block,” and “I kept hearin’ click, click, click,” as well as defendant asking, after arriving at a friend‘s house, if he could take a quick shower.
¶ 8 B. Initial Postconviction Petition
¶ 9 In 2014, defendant, through appointed counsel, filed a postconviction petition alleging actual innocence, based upon entrapment, and two claims of ineffective assistance of trial counsel. The trial court summarily dismissed the petition, and we affirmed the dismissal. People v. Montes, 2015 IL App (2d) 140485. With respect to the claim of actual innocence premised on entrapment, defendant had alleged that evidence became available after trial that would have supported an entrapment defense. The relevant postconviction allegations were summarized in our prior decision (id. ¶¶ 5-13); however, we note that defendant attached to his petition an affidavit from Hernandez, who alleged that Pannell, whom he knew as a gang “enforcer,” had given defendant the gun, told defendant to act as a lookout for rival gangs, and was, essentially, the driving force behind the shooting. Hernandez further summarized that, after defendant exited the vehicle with a gun, Pannell followed him with the clip of ammunition that had been left in the car. After both defendant and Pannell had left the vehicle, a single shot was fired, and Hernandez attested, “I didn‘t know if [defendant] fired the shot[.]” Defendant also attached to his initial postconviction petition an affidavit from his trial attorney, attesting to Hernandez‘s prior unavailability. Defendant did not submit his own affidavit. We affirmed the court‘s summary dismissal of the actual-innocence claim, finding that defendant‘s entrapment claim failed because it was: (1) forfeited, as he did not raise it at trial; (2) a defense unavailable to defendant, who had not admitted to committing the offense; and (3) an indisputably meritless legal theory. Id. ¶¶ 19-25.
¶ 10 C. Successive Postconviction Petition
¶ 11 On April 15, 2019, defendant, again through counsel, filed a motion for leave to file a successive postconviction petition, alleging two claims not at issue here and a claim of actual innocence. In support of his actual-innocence claim, defendant attached to the petition an affidavit from Jean-Marc Faison, dated May 15, 2018. In his affidavit, Faison attested that, on November 22, 2005, he was walking to a local liquor store when he saw defendant exit a green vehicle and run west between two houses. He also saw Ramos appear, and he was familiar with Ramos, as they were both gang members in the same neighborhood (different gangs, but not rivals). As he
“As a gang member and resident of the area, I was familiar with the neighborhood and the violence that takes place in the area. Accordingly, I was carrying on my person a .38 revolver gun for protection. At the time, I was on parole for Aggravated Discharge of a Firearm and did not want to get caught in possession of a gun. With little police or gang investigator presence, due to the usual shift change at this time of day, I felt it was okay to have the gun without being caught. I began running west, towards Sumner Avenue, when I saw the individual [i.e., defendant] come out from between the two houses just as [Ramos] was approaching. In fear for my safety and [Ramos‘s] safety, I took cover behind a parked car and fired a single shot in the air. I fired the shot into the air to scare away the individual I saw [i.e., defendant] without injuring myself or [Ramos]. [Ramos] and I ran in opposite directions after I fired the shot. I am not sure if the individual [i.e., defendant] or [Ramos] saw me there. The individual, [i.e., defendant], did not fire a shot.
I did not provide this information at the time of the incident because I was on parole and was afraid of the legal consequences and possible gang retaliation. At the time of this incident I was 19 years old and found it ironic that a Latin King took the fall for a shooting he did not do. I learned through the newspaper and by word of mouth, that [defendant] was charged and convicted for this shooting.
Now at 30 years old, having matured and having seen [defendant] in Menard Correctional Center in 2015 for a shooting he did not commit, I feel great remorse for not
having come forward with this information. I have no love or loyalty toward any Latin King; just the opposite. I make this statement because it is the right thing to do.”
Faison further attested that his statement was given freely and voluntarily, with no threats, promises, or anything offered in exchange for it.
¶ 12 As such, defendant argued in his petition that the above evidence was: (1) newly discovered, as he did not know any of the information until he met Faison in 2015, while both were serving sentences at Menard Correctional Center; (2) material, relevant, and probative of his actual innocence, as it identified the shooter as someone else and established there was no intent to harm Ramos and, thus, no attempt to murder him; and (3) likely to change the trial outcome. In addition, in an affidavit dated March 27, 2019, and attached to the motion for leave to file the successive petition, defendant attested,
“I had no knowledge of the information contained in Jean-Marc Faison‘s affidavit until I met him while we were both incarcerated at Menard Correctional Center. In addition, I did not fire the shot I am accused of firing. I do not know who did fire that shot, or where it came from.”
¶ 13 On October 23, 2019, the trial court granted defendant leave to file his successive petition. Almost one year later, on October 2, 2020, the State moved to dismiss the petition. In sum, the State argued that defendant was estopped from claiming actual innocence because his initial petition had raised an entrapment defense, which necessarily admitted that he fired the weapon. Further, the State argued that the evidence was not of such a conclusive nature that it would likely change the trial result. After detailing the trial evidence reflecting that defendant raised a gun and fired it at Ramos, the State summarized, “[a]t best, [Faison‘s affidavit] conclusively says that Mr. Faison committed a crime in addition to the defendant, and not in lieu of the defendant.”
¶ 15 II. ANALYSIS
¶ 16 The Act (
¶ 17 The Act establishes a three-stage process for the adjudication of a postconviction petition. People v. English, 2013 IL 112890, ¶ 23. If a petition is not summarily dismissed at the first stage, it advances to the second stage, where the State can move to dismiss the petition.
“Ultimately, the question is whether the evidence supporting the postconviction petition places the trial evidence in a different light and undermines the court‘s confidence in the judgment of guilt. The new evidence need not be entirely dispositive to be likely to alter the result on retrial. Probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the prior evidence along with the new evidence.” (Internal citations omitted.) Id. ¶ 48.
¶ 18 If the defendant makes a substantial showing of a constitutional violation, the petition advances to the third stage, where the trial court conducts an evidentiary hearing.
¶ 19 Here, defendant argues that the court erred in granting the State‘s motion to dismiss his successive postconviction petition. He contends that the petition made a substantial showing of actual innocence based on newly discovered evidence because it showed that someone else committed the shooting for which he was convicted. Defendant contends that the court erroneously found that the newly discovered evidence would not change the result at trial, because Pannell was the only person at trial who claimed to have seen him fire a shot. He asserts that
¶ 20 Further, defendant argues that the court erred in finding that his initial postconviction petition served as an admission that he committed the shooting because his postconviction counsel did not properly raise an entrapment defense in that petition, where the petition never alleged that defendant fired a shot at Ramos and did not include an affidavit from defendant. Where the initial petition included an affidavit only from Hernandez attesting that he was not sure if defendant fired a shot, because he did not see it, defendant argues that the initial petition filed by counsel cannot be deemed an admission. Indeed, defendant notes, in affirming the summary dismissal of the initial petition, this court recognized that the entrapment defense was not properly raised, in part, because “defendant did not admit to the crime at trial, his postconviction petition failed to allege or attest that he committed the shooting, and Hernandez‘s affidavit stated only that he did not know if defendant was the shooter.” Montes, 2015 IL App (2d) 140485, ¶ 25. Accordingly, defendant argues, he cannot now be prevented from making an actual innocence claim. Finally, defendant notes that, even if we were to consider his prior petition as having raised an entrapment defense, that defense should not preclude his actual innocence claim now, given that actual innocence claims may be raised even after defendants have entered guilty pleas. See, e.g., People v. Reed, 2020 IL 124940, ¶ 40. In sum, defendant argues that a third-stage evidentiary hearing is warranted because nothing in the record rebuts the newly discovered evidence and, taken with the other
¶ 21 Preliminarily, we note that the State argues that Faison‘s affidavit does not satisfy the requirements that it be newly discovered, material, and noncumulative, and that defendant‘s initial postconviction claim raising actual innocence premised on entrapment bars his current claim. We disagree. In arguing that the evidence was not newly discovered, the State relies on People v. Snow, 2012 IL App (4th) 110415, ¶ 21, which noted that facts known to a defendant at or prior to trial are not considered newly discovered, even if “the source of these facts may have been unknown, unavailable or uncooperative” and, further, that a defendant must establish that the evidence could not have been discovered sooner through due diligence. Id. Here, the State contends, defendant is claiming that he did not shoot the gun, but that fact is not newly discovered, as it was presumably known to him at the time of trial and is a fact to which he could have testified, even if Faison‘s existence and alleged involvement were unknown. The State further asserts that the fact that defendant absented himself from trial to so testify reflects a lack of due diligence in presenting this actual-innocence theory and, in particular, that defendant further lacked due diligence in obtaining and presenting Faison‘s affidavit. The State notes that, although Faison attested that, at the time of the 2005 events at issue, he was afraid of legal consequences and gang retaliation, he did not aver that he would have been unavailable or unwilling to testify in 2010, if defendant had called him as a witness at trial. More importantly, the State argues, defendant allegedly learned of this newly-discovered evidence in 2015, yet Faison did not sign the affidavit until 2018 and, despite being represented by counsel, defendant did not file the instant petition
¶ 22 We disagree with the State‘s position. The State does not adequately distinguish defendant‘s knowledge that he did not shoot the gun with his knowledge that Faison allegedly did. As defendant notes, even if he had been present at trial and testified that he did not shoot the weapon, until he met Faison in 2015, he did not know who did shoot the weapon. Thus, rather than trying to prove a negative, i.e., that he did not shoot the firearm, Faison‘s affidavit offers new, affirmative evidence about who (allegedly) did shoot the weapon. In our view, defendant has sufficiently demonstrated that the affidavit presents evidence that is newly-discovered. Further, as to diligence, defendant could not have presented the evidence at his 2010 trial, as Faison had not come forward. The State notes that Faison did not come forward in 2005 because of fear of retaliation and because he was on parole, but that he might have been available and willing to do so in 2010; however, it remains that defendant could not have reached out to Faison in 2010, because he did not know Faison existed or had any relevant information to share. Both Faison and defendant attested that the first time that defendant learned Faison‘s information was when they met in 2015. Moreover, the State notes that although defendant apparently learned this information in 2015, his motion was not filed until 2019. However, Faison attested that he was only 19 years old when the incident occurred and was afraid to come forward, but, by the time he signed his affidavit in 2018, he was 30 years old, had matured, and felt remorse after seeing defendant incarcerated for a shooting he did not commit. We think this implies that, after personally meeting defendant, time and increased maturity were necessary components to Faison‘s decision to come
¶ 23 The State also argues that the facts in Faison‘s affidavit are not material and noncumulative, essentially because they simply impeach or discredit testimony from Pannell, Ramos, and defendant‘s voice on the recording. As such, the State concludes, the affidavit is not “outcome determinative.” We agree with defendant that the State conflates the material-and-noncumulative requirement with the conclusive-character requirement for new evidence. Instead, Faison‘s affidavit is material because it speaks to the ultimate issues in the case, i.e., who attempted to murder Ramos and who discharged a firearm. In addition, it is noncumulative because it does not repeat testimony from the trial; it offers a new perspective on the incident. Finally, we afford no weight here to the fact that defendant previously filed an unsuccessful petition asserting entrapment. It is axiomatic that a defendant may file multiple petitions asserting inconsistent theories of actual innocence; that is why there is no bar to successive petitions based on actual innocence. See
¶ 24 We now address the requirement that the new evidence be of such a conclusive nature that it would probably change the result on retrial. For the following reasons, we reach different conclusions for each of defendant‘s convictions. Considering first defendant‘s attempted first-degree murder conviction, we conclude that the trial court correctly dismissed the petition on the basis that the evidence is not of such conclusive nature that it would probably change the result on
¶ 25 As to the attempted first-degree murder conviction, the evidence that defendant attempted to murder Ramos was strong and, therefore, whether Faison also fired a weapon is of no relevance. Defendant focuses on the fact that only one gunshot was heard, and, as Faison claims responsibility for that gunshot, defendant accordingly could not have attempted to murder Ramos. We disagree and believe defendant‘s arguments rest on a faulty premise, i.e., that even if the lone gunshot heard was fired by Faison, he must be exonerated. To the contrary, the evidence that defendant pointed a weapon at Ramos and fired it, whether it was loaded or not, or was loaded and misfired, is strong. As the jury instructions in this case explained, to establish defendant‘s guilt for attempted murder, the State needed to prove beyond a reasonable doubt that defendant performed an act that constituted a substantial step toward killing Ramos and that he intended to kill Ramos; obviously, as the crime is one of attempt, the killing need not be accomplished. See, e.g., People v. Thompson, 2020 IL App (1st) 171265, ¶ 75. Intent can be inferred by considering evidence of defendant‘s conduct. Id. ¶ 80.
¶ 26 Here, evidence of defendant‘s intent to kill Ramos includes his conduct that, after he identified Ramos as possibly being in a rival gang, defendant took a gun out of the vehicle and went after him. When Ramos ran away, defendant returned to the vehicle and instructed the driver where to go so that they could ambush Ramos at a new location. Pannell removed the clip of
¶ 27 Again, defendant‘s position is apparently premised on the notion that only one gunshot was heard and that, since Faison attests that he fired a shot, the result at trial would probably be different. However, even if it is true that only one gunshot was heard and Faison fired that shot, the evidence that defendant intended to kill Ramos and took a substantial step towards doing so, but was simply unsuccessful, possibly because, when he fired the weapon, there was no bullet in the chamber, was strong. Even if the weapon was inoperable because it was unloaded, or loaded and misfired, the evidence does not reflect that defendant knew it to be inoperable when he used it to try to shoot Ramos. See e.g., People v. Seats, 68 Ill. App. 3d 889, 895-96 (1979) (“the very
¶ 28 However, while Faison‘s affidavit does not negate defendant‘s conviction for attempted murder, Faison‘s affidavit cuts against defendant‘s conviction for aggravated discharge of a firearm, as well as the finding that he personally discharged a firearm, which qualified him for the 20-year sentencing enhancement. We note that, in People v. Chamness, 2014 IL App (2d) 120768-U, ¶ 24, this court held,
“[I]n order to be convicted of aggravated discharge of a firearm under section 24-1.2 of the Criminal Code [of 1961], the State must establish that a defendant discharged a firearm by ‘causing the ammunition projectile to be forcefully expelled from the firearm.‘” Id.
Our holding relied on the definition of the term “personally discharged a firearm,” found in section 12-15.5 of the Criminal Code, which provides, “A person is considered to have ‘personally discharged a firearm’ when he or she, while armed with a firearm, knowingly and intentionally
¶ 29 Here, Faison testifies that he fired a gun and that defendant did not, and defendant argues that the evidence established that only one gunshot was actually heard. If defendant pulled the trigger but no ammunition was forcefully expelled from the firearm and, instead, Faison was the person who fired that shot, we agree that a fact finder could reach a different result on the aggravated discharge of a firearm count, as well as its finding that defendant “personally discharged a firearm,” which mandated a sentencing enhancement. Again, Faison‘s affidavit does not need to be entirely dispositive to be likely to alter the result on retrial; “probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the prior evidence along with the new evidence.” Robinson, 2020 IL 123849, ¶ 48. Here, regardless of whether the evidence reflects one shot or multiple shots, close in time—i.e., that both Faison and defendant fired a weapon—surely that information would have been at least relevant to the jury when deliberating on the aggravated-discharge count and when making a finding that defendant personally discharged the firearm. Accordingly, with respect to the aggravated-discharge conviction and firearm enhancement, we conclude that the trial court incorrectly dismissed the petition on the basis that the evidence is not of such conclusive nature that it would probably change the result on retrial.
¶ 30 We emphasize that nothing we decide here should be taken to suggest that defendant is necessarily innocent. As a witness, Faison‘s story about the warning shot may eventually fall apart for any number of reasons. But the evaluation of his credibility is not before us; “credibility determinations are made at a third-stage evidentiary hearing.” Robinson, 2020 IL 123849, ¶ 81 (citing Sanders, 2016 IL 118123, ¶¶ 33, 42). We simply conclude that, with respect to his
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, the circuit court of Kane County is affirmed in part, reversed in part, and the cause is remanded.
¶ 33 Affirmed in part and reversed in part; cause remanded.