THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO ROCHA, Defendant-Appellant.
No. 1-19-1714
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
February 16, 2021
2021 IL App (1st) 191714-U
JUSTICE LAVIN delivered the judgment of the court. Justices Pucinski and Cobbs concurred in the judgment.
Second Division. NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 91 CR 9541. The Honorable Dennis Porter, Judge Presiding.
¶ 1 Held: The circuit court properly dismissed defendant‘s petition for relief from judgment pursuant to
¶ 2 On October 2, 1991, defendant Mario Rocha entered a plea of guilty to possession of a controlled substance with intent to deliver and was sentenced to 24 months of probation. On August 15, 2018, defendant filed, through counsel, a petition for relief from judgment pursuant to
¶ 3 In 1991, defendant and Raul Alvarez were charged with armed violence and possession of a controlled substance with intent to deliver.
¶ 4 On October 2, 1991, defense counsel told the court that defendant accepted a plea offer from the State and would enter a guilty plea to possession of a controlled substance with intent to deliver in exchange for a sentence of 24 months of probation. The State noted that Alvarez‘s name was omitted from count I of the indictment and asked that the document be corrected. The trial court asked what happened to Alvarez and the State replied, “S.O.L. warrant.”
¶ 5 The State then presented the factual basis for the plea. If called, Chicago police officer Terrence Klark would testify that in the early morning of March 5, 1991, while responding to a call of a man with a firearm, he saw defendant approach a vehicle parked in the middle of the street, hand Alvarez a clear plastic bag containing a white powdery substance, and enter the backseat of the vehicle. Klark observed Alvarez place the plastic bag in the vehicle door, and also saw a .25-caliber automatic firearm in the front seat with Alvarez. Klark ordered defendant from the vehicle and recovered the firearm and the plastic bag. The State further stipulated that the bag weighed 4.9 grams and the contents tested positive for cocaine.
¶ 7 On August 15, 2018, defendant filed through counsel a document titled “Free Standing Motion for Relief from Judgment Based on Actual Innocence or, In the Alternative, A Petition for Relief from Judgment Pursuant to
¶ 8 The petition further alleged that defendant could not seek relief under the
¶ 10 In his affidavit, Alvarez averred that he was deported in 2009 following narcotics convictions in both state and federal court. He further averred that he hid the narcotics recovered in this case when defendant was not present, defendant did not hand him narcotics, and he could not be a witness for defendant because he was also charged in this case.
¶ 11 On January 10, 2019, the State filed a motion to dismiss the petition as untimely because it was filed more than two years after the complained-of judgment and defendant presented no evidence that his failure to file a timely petition was due to legal disability, duress, or fraudulent concealment. The motion further alleged that defendant‘s actual innocence claim failed as it did not present newly discovered evidence.
¶ 12 Defendant filed a response, submitting that because the State only argued that the petition for relief from judgment was untimely filed more than two years after the complained-of judgment, it had waived any argument that a free-standing claim of actual innocence was time barred.
¶ 13 On June 13, 2019, the court heard arguments on the motion to dismiss. The State rested on its motion. Defense counsel argued that defendant could not have brought the facts contained in Alvarez‘s affidavit to the court sooner because Alvarez was unavailable. Counsel therefore concluded that defendant‘s actual innocence claim was not time barred and the State waived any argument “regarding the freestanding time issue.”
¶ 15 On appeal, defendant contends that the circuit court erred in dismissing the petition as untimely when it established that he was not culpably negligent for failing to bring his claim earlier. Defendant further contends that his claim of actual innocence was not barred by his guilty plea and was supported by newly discovered evidence.
¶ 16
¶ 17 A petition for relief from judgment must be filed within two years after entry of the judgment being challenged.
¶ 18 Our standard of review depends on whether the petitioner has presented a factual or legal challenge to a final judgment or order. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. If a petition raises a purely legal issue that does not involve a factual dispute and the trial court enters a judgment on the pleadings or dismissal for failure to state a cause of action, the reviewing court applies a de novo standard of review. Id. ¶¶ 47-48. If, on the other hand, a section 2-1401 petition raises a fact-dependent challenge to a final judgment, our review is for an abuse of discretion. Id. ¶¶ 50-51.
¶ 19 Defendant first contends that the circuit court erred in finding that his petition was untimely because it raised a claim of actual innocence. This is a purely legal argument that we review de novo. Id. ¶¶ 47-48.
¶ 21 Defendant nonetheless contends that the petition is not untimely because the two-year limitation does not apply to claims of actual innocence. Essentially, defendant argues he can assert a freestanding claim of actual innocence pursuant to our supreme court‘s decision in People v. Ortiz, 235 Ill. 2d 319 (2009). We do not find this argument persuasive.
¶ 22 In Ortiz, 235 Ill. 2d at 330, our supreme court determined that “in a nondeath case, where a defendant sets forth a claim of actual innocence in a successive postconviction petition, the defendant is excused from showing cause and prejudice.” The court explained that “[t]his court has held that the due process clause of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding claim of actual innocence based on newly discovered evidence.” Id. at 331 (citing People v. Morgan, 212 Ill. 2d 148, 154 (2004)). The court noted that accepting a different interpretation of the Act could theoretically bar a defendant from filing a freestanding claim of actual innocence, which the court could not “allow as a matter of substantive and procedural due process under the Illinois Constitution.” Ortiz, 235 Ill. 2d at 332 (citing People v. Washington, 171 Ill. 2d 475, 487-88 (1996)).
¶ 24 To the contrary, our supreme court has made clear that “an action brought under
¶ 25 Defendant, however, argues that the circuit court should have reviewed the “timeliness” of his actual innocence claim pursuant to the culpable negligence standard applicable to proceedings under the Act. He relies on Pinkonsly to argue that our supreme court “has interpreted [section] 2-1401‘s timeliness exceptions interchangeably” with those of the Act.
¶ 26 In Pinkonsly, our supreme court considered whether the State could raise the timeliness of a defendant‘s section 2-1401 petition for the first time on appeal. To resolve the issue, our supreme
¶ 27 The court explained that although the Act requires a defendant to allege facts demonstrating a lack of culpable negligence, the State is not permitted ” ‘to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition.’ ” Pinkonsly, 207 Ill. 2d at 563 (quoting Wright, 189 Ill. 2d at 11). In other words, by not raising timeliness before the circuit court, ” ‘the State ha[d] effectively precluded [the] defendant from seeking to amend his petition to allege facts demonstrating that the late filing was not caused by his culpable negligence.’ ” Id. (quoting Wright, 189 Ill. 2d at 11).
¶ 28 The court then noted that like the Act,
¶ 29 Contrary to defendant‘s argument on appeal, Pinkonsly does not stand for the proposition that the Act‘s exception for the late filing of a postconviction petition based upon a lack of culpable
¶ 30 Here, defendant‘s petition was filed approximately 27 years after the complained-of judgment and the State moved to dismiss the petition as untimely. Although defendant argues that the limitations period should not apply, he does not allege that any of the exceptions listed in
¶ 31 Even if this court were to overlook the fact that defendant‘s claim is time-barred in this proceeding pursuant to
¶ 32 With regard to his claim of actual innocence, defendant challenges the circuit court‘s denial of relief on two bases. First, he argues that his guilty plea does not prevent him from raising a claim of actual innocence in a proceeding pursuant to
¶ 34 Although defendant is correct that his guilty plea does not bar him from raising a claim of actual innocence, the circuit court did not abuse its discretion in denying him relief when he did not support his claim of actual innocence with “new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal.” See People v. Reed, 2020 IL 124940, ¶ 49.
¶ 35 Our supreme court‘s recent decision in Reed, 2020 IL 124940, ¶ 24, in which the court addressed whether a defendant who pleads guilty waives any claim of actual innocence under the Act, is instructive. In resolving that issue, the court considered the motives and consequences of a plea in light of a collateral attack on the basis of actual innocence. Id.
¶ 36 The court first explained how both the State and a defendant benefit from, and make concessions in, a plea agreement. Because plea agreements can be quicker, provide finality, and permit the conservation of resources, the State is motivated to make concessions including stopping investigations, dismissing charges, and not presenting the totality of the evidence to the trial court. Id. ¶ 25. A defendant also benefits by obtaining a more favorable sentence, the dismissal of other charges, and the cost of a trial. Id. ¶ 26. However, “[a] guilty plea is an admission of guilt and a conviction in and of itself.” Id. ¶ 27. Moreover, a guilty plea relieves the State of its burden to prove a defendant guilty beyond a reasonable doubt, and by pleading guilty, a defendant ” ‘waives all nonjurisdictional defenses or defects,’ including constitutional ones.” Id. (quoting People v. Burton, 184 Ill. 2d 1, 27 (1998)).
¶ 38 The court highlighted that although plea agreements are “vital” to our criminal justice system, they “are not structured to ‘weed out the innocent’ or guarantee the factual validity of the conviction’ ” Id. ¶ 33 (quoting Schmidt v. State, 909 N.W.2d 778, 788 (Iowa 2018)). Rather, the “plea system” presents a defendant with a cost-benefit analysis where he may choose to plead guilty in hopes for a more lenient punishment after assessing the State‘s evidence of guilt versus the evidence for his defense. Id. “As such, it is well accepted that the decision to plead guilty may be based on factors that have nothing to do with [a] defendant‘s guilt.” Id. Thus, the structure of our criminal justice system permits a trial court to accept a guilty plea even in those cases where a defendant asserts his innocence, as long as a sufficient factual basis exists, and the court provides the required admonishments. Id. ¶ 34. The court explained:
“Unlike a conviction after trial, where the State‘s evidence is scrutinized and must meet the beyond a reasonable doubt standard, the factual basis to support the plea is held to a less stringent level of proof, requiring only a basis from which the court could reasonably conclude that defendant actually committed the acts constituting the offense to which defendant is pleading guilty.” Id.
¶ 39 Thus, because “pleas are no more foolproof than trials,” when a trial court is “met with a truly persuasive demonstration of innocence, a conviction based on a voluntary and knowing plea is reduced to a legal fiction.” Id. ¶ 35. At this point, additional due process provided by the Illinois Constitution‘s due process clause is triggered despite the defendant‘s waiver of all nonjurisdictional defects. Id.
¶ 40 The court emphasized its “long-standing preference for life and liberty over holding a defendant to his plea,” because “sometimes a manifest injustice outweighs the consequences of [a] defendant‘s voluntary plea.” Id. ¶ 36. The court therefore concluded that a guilty plea was “not guilt in fact” and did not prevent a defendant from asserting his right to not be deprived of life and liberty given compelling evidence of actual innocence under the Act. Id. ¶¶ 37-38. The court then provided the following standard for actual innocence claims involving those defendants who plead guilty:
“[A] successful actual innocence claim requires a defendant who pleads guilty to provide new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal. New means the evidence was discovered after the court accepted the plea and could not have been discovered earlier through the exercise of due diligence. [Citation.] This is a comprehensive approach where the court
must determine whether the new evidence places the evidence presented in the underlying proceedings in a different light and ‘undercuts the court‘s confidence in the factual correctness’ of the conviction. [Citation.] This higher standard strikes an equitable balance between the defendant‘s constitutional liberty interest in remaining free of undeserved punishment and the State‘s interest in maintaining the finality and certainty of plea agreements, while vindicating the purpose of the criminal justice system to punish only the guilty. Because the evidence must be clear and convincing, the standard inherently requires the court to consider the evidence to be reliable. We therefore see no reason to further limit defendants who plead guilty by requiring them to support their petition with forensic evidence.” Id. ¶¶ 49-50.
¶ 41 Based on the foregoing, in the present case, defendant may raise a claim of innocence on the basis of newly discovered evidence despite his knowing and voluntary guilty plea. See Id. ¶ 36 (“sometimes a manifest injustice outweighs the consequences of [a] defendant‘s voluntary plea“). Although defendant filed a section 2-1401 petition rather than a petition under the Act, this court has recently applied Reed‘s reasoning to a claim of actual innocence raised in a section 2-1401 petition “in the spirt of the rationale in Reed, [as]*** a substance-over-form approach.” People v. Patel, 2021 IL App (3d) 170337, ¶ 18 (applying the rationale of Reed to a claim of actual innocence raised in a timely-filed section 2-1401 petition).
¶ 42 That said, the question remains whether the evidence supporting defendant‘s actual innocence claim in this case is sufficient to warrant relief. In other words, we must determine whether defendant provided “new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal.” Reed, 2020 IL 124940, ¶ 49.
¶ 44 According to Reed, “[n]ew means the evidence was discovered after the court accepted the plea and could not have been discovered earlier through the exercise of due diligence.” Id. In the case at bar, although the source of the alleged evidence may not have been available at the time of defendant‘s plea, either because Alvarez had fled the jurisdiction or was also facing charges, the substance of the evidence was available to defendant at the time of his plea. We therefore rely on the holding of Reed to conclude that the content of Alvarez‘s affidavit does not constitute new evidence. Id. Additionally, although Alvarez would presumably testify that defendant was unaware of the narcotics, Officer Klark would presumably testify that he observed defendant approach a vehicle, hand Alvarez a clear plastic bag containing a white powdery substance and enter the backseat of the vehicle. Accordingly, because defendant did not support his claim of actual innocence with “new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal” (id.), he did not state a claim upon which relief could be granted and the circuit court did not abuse its discretion when it denied him relief (Warren County Soil & Water Conservation District, 2015 IL 117783, ¶¶ 50-51).
¶ 45 For the forgoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 46 Affirmed.