People v. Alvardo
| Citation | 2014 IL App (1st) 122409 |
| Decision Date | 07 March 2014 |
| Docket Number | No. 1-12-2409,1-12-2409 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAFAEL ALVARDO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
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).
Appeal from the
Circuit Court of
Cook County.
¶ 1 Held: Second-stage dismissal of defendant's postconviction petition is affirmed, where defendant's various assertions of ineffective assistance of trial counsel were forfeited, barred by principles of res judicata, or unfounded.
¶ 2 After a jury trial, defendant-appellant, Rafael Alvardo, was convicted of one count of armed robbery and two counts of aggravated battery with a firearm. Defendant was then sentenced to a term of 6 years' imprisonment for the armed robbery conviction, to be served consecutively to two concurrent 20-year terms of imprisonment for the aggravated battery convictions. On appeal, defendant's convictions were affirmed. People v. Alvardo, No. 1-07-2232 (2010) ().
¶ 3 Pursuant to the Post-Conviction Hearing Act (720 ILCS 5/122-1 et seq. (West 2010)), defendant thereafter filed the instant postconviction petition contending that—for various reasons—his trial counsel provided ineffective assistance. The State responded by filing a motion to dismiss the petition on the grounds that: (1) in light of defendant's direct appeal, defendant's various claims of ineffective assistance were all barred by principles of forfeiture and res judicata; and (2) in any case, defendant had failed to meet his burden of making a substantial showing that he had been provided with ineffective assistance of counsel. The circuit court granted the State's motion to dismiss defendant's petition, finding that all of the assertions in defendant's petition were either raised, or could have been raised, in the context of defendant's direct appeal. Defendant has now appealed from that order, and for the following reasons we affirm.
¶ 5 Defendant was charged by indictment in 2004 with multiple counts of attempted first degree murder, armed robbery, and aggravated battery with a firearm. The counts contained in the indictment generally alleged that defendant had participated in an armed robbery and shooting that occurred on December 7, 2001.
¶ 6 The matter proceeded to a jury trial commencing in April of 2007. The trial proceedings and the evidence presented at trial were fully set out in our prior order, and need not be restated here. See Alvardo, No. 1-07-2232 (2010) (). At the conclusion of that trial, defendant was found guilty of armed robbery and two counts of aggravated battery with a firearm. Defendant was then sentenced to a term of 6 years' imprisonment for the armed robbery conviction, to be served consecutively to two concurrent 20-year terms of imprisonment for aggravated battery.
¶ 7 Defendant filed a direct appeal from his convictions, contending: (1) defendant was provided ineffective assistance of counsel at trial, where defense counsel himself "injected [defendant's] criminal history into the trial" and failed to object to the introduction of such evidence by the State; (2) the trial court improperly denied defendant's motions to suppress both defendant's inculpatory statement to the police and an eyewitness identification of defendant; (3) defendant was denied due process and his right to cross-examination, where DNA evidence was introduced against defendant at trial despite the fact that one of two DNA samples taken from a mask defendant allegedly used during the incident had been consumed during initial DNA testing; and (4) defendant was not proven guilty beyond a reasonable doubt. In an order entered on June 30, 2010, this court rejected all of defendant's arguments and affirmed his convictions. Alvardo, No. 1-07-2232 (2010) ().
¶ 8 On May 24, 2011, defendant—represented by private defense counsel—filed the instant petition for postconviction relief. Therein, defendant asserted that his trial counsel provided ineffective assistance by failing to: (1) allow defendant to testify at trial, despite indicating to the jury during his opening statement that defendant would in fact testify and despite the fact that defendant wanted to testify; (2) contact and present an expert on witness identification who would have challenged the State's eyewitness identification evidence; (3) have the DNA evidence independently retested by a defense expert; and (4) advise defendant of the possibility that he would be subject to consecutive sentences. Attached to defendant's petition was an affidavit executed by defendant, in which he averred that his trial counsel, inter alia (1) refused to allow defendant to testify, despite the fact that defendant had repeatedly indicated his desire to do so; (2) never informed defendant that he could be subjected to consecutive sentences; and (3) failed to have the DNA sample obtained from the mask used during the robbery retested. Alsoattached to the petition were, inter alia: (1) an affidavit executed by defendant's father, in which it was averred that trial counsel was paid to have the DNA evidence examined by an independent expert, but this task was not accomplished and no such expert was presented on defendant's behalf at trial; and (2) a curriculum vitae and a proffer for a professor of psychology, Dr. Geoffrey Loftus, indicating that he would generally inform the jury about "various relevant aspects of perception and memory" and that "decades of scientific research have indicated that a witness may be testifying honestly about the contents of a memory that seems very real but that, for a variety of reasons, is simply incorrect."
¶ 9 The State responded to defendant's petition by filing a motion to dismiss. Therein, the State argued: (1) defendant's claims of ineffective assistance were barred by principles of forfeiture and res judicata, because they were all either raised, or could have been raised, during defendant's direct appeal; and (2) defendant had failed to meet his burden of showing that he had been provided with ineffective assistance of trial counsel. In his response to the State's motion to dismiss, defendant additionally complained that his trial counsel had improperly told the jury about defendant's criminal history during his opening statement and had failed to object to the introduction of such evidence by the State.
¶ 10 After reviewing the transcripts from the underlying trial and this court's order entered upon defendant's direct appeal, the circuit court granted the State's motion to dismiss. The circuit court found that all of the issues raised in defendant's petition were barred by principles of forfeiture and res judicata. Defendant timely appealed.
¶ 12 On appeal, defendant contends that the circuit court improperly dismissed his postconviction claims of ineffective assistance of trial counsel without first holding an evidentiary hearing. We disagree.
¶ 14 As noted above, defendant filed the instant petition pursuant to the Post-Conviction Hearing Act. 720 ILCS 5/122-1 et seq. (West 2010). Our supreme court has recently summarized the procedures to be employed in evaluating such a petition as follows:
To continue reading
Request your trial