People v. Caballero

• Decision Date: 04 December 1997
• Docket Number: No. 81259,81259
• Citation: 688 N.E.2d 658,179 Ill.2d 205,227 Ill.Dec. 965
• Parties: , 227 Ill.Dec. 965 The PEOPLE of the State of Illinois, Appellee, v. Juan CABALLERO, Appellant.
• Court: Illinois Supreme Court

Page 658

688 N.E.2d 658

179 Ill.2d 205, 227 Ill.Dec. 965

The PEOPLE of the State of Illinois, Appellee, v. Juan CABALLERO, Appellant.

No. 81259.

Supreme Court of Illinois.

Dec. 4, 1997.

Cynthia Giacchetti, The Law Offices of Cynthia Giacchetti, Chicago, for Jaun Caballero.

Richard A. Devine, State's Attorney, Cook County., Crim. Appeals Div., Kim A. Novi, Assistant State's Attorney, Chicago, Jim Ryan, Attorney General, Crim. Appeals Div., Chicago, for the People.

Justice HARRISON delivered the opinion of the court:

Defendant, Juan Caballero, appeals from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his petition for post-conviction relief (725 ILCS 5/122-1 et seq. (West 1992)) and relief from judgment (735 ILCS 5/2-1401 (West 1992)). Because defendant was sentenced to death for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill.2d R. 651(a).

Early on the morning of February 25, 1979, the bodies of three teenage males, Michael Salcido, Arthur Salcido, and Frank Mussa, were discovered in a car in a Chicago alley. In 1980, a jury found defendant guilty on charges of murder, unlawful restraint, and armed violence with respect to each of the three victims. On direct appeal, this court affirmed defendant's convictions and death sentence. People v. Caballero, 102 Ill.2d 23, 79 Ill.Dec. 625, 464 N.E.2d 223 (1984).

Defendant filed a petition for post-conviction relief alleging, inter alia, that he was denied effective assistance of counsel at his capital sentencing hearing. The circuit court dismissed the petition without an evidentiary hearing. On appeal, this court held that the allegations made a substantial showing of constitutional rights deprivation and remanded the cause for an evidentiary hearing. People v. Caballero, 126 Ill.2d 248, 128 Ill.Dec. 1, 533 N.E.2d 1089 (1989). After a hearing, the circuit court denied defendant post-conviction relief based on ineffective assistance of counsel at sentencing and this court affirmed. People v. Caballero, 152 Ill.2d 347, 178 Ill.Dec. 390, 604 N.E.2d 913 (1992).

On October 29, 1993, defendant filed a petition for post-conviction relief and relief from judgment based on the unconstitutional disparity of his death sentence, and later amended the petition to include violation of his due process right to "reverse-Witherspoon," or "life qualify," the jury. The State moved to dismiss defendant's petition. On May 29, 1996, after oral argument on the State's motion, the circuit court dismissed the petition and this appeal followed. The facts of this case are adequately set forth in our opinion on defendant's direct appeal and will not be repeated here.

Initially, we note that while defendant alternatively argues that he is entitled to relief from judgment pursuant to section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 1992)), where a section 2-1401 petition is filed beyond two years after the judgment was entered, it cannot be considered. 735 ILCS 5/2-1401(c) (West 1992); see also People v. Logan, 49 Ill.App.3d 787, 790, 7 Ill.Dec. 552, 364 N.E.2d 713 (1977), aff'd, 72 Ill.2d 358, 21 Ill.Dec. 186, 381 N.E.2d 264 (1978). This court has held that the two-year limitation mandated by section 2-1401 and its predecessor, section 72 (Ill.Rev.Stat.1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing that the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. Crowell v. Bilandic, 81 Ill.2d 422, 427, 44 Ill.Dec. 110, 411 N.E.2d 16 (1980); People v. Berland, 74 Ill.2d 286, 317, 24 Ill.Dec. 508, 385 N.E.2d 649 (1978). Moreover, the fact that a post-judgment motion or an appeal may be pending does not serve to toll the period of limitation. See Sidwell v. Sidwell, 127 Ill.App.3d 169, 174, 82 Ill.Dec. 138, 468 N.E.2d 200 (1984).

Defendant's section 2-1401 petition was filed 13 years after the judgment of conviction was entered and sentence imposed in 1980, and he does not contend that any of the grounds for tolling the limitations period exist. Therefore, section 2-1401 is not available as a remedy. Although the circuit court did not state its reasoning for dismissing that portion of defendant's petition, we may affirm for any reason warranted by the record, regardless of the reasons relied on by the lower court. People v. Nash, 173 Ill.2d 423, 432, 220 Ill.Dec. 154, 672 N.E.2d 1166 (1996).

The State contends that the circuit court also properly dismissed defendant's petition for post-conviction relief because, as his second, it is procedurally barred. It is true that the Post-Conviction Hearing Act (Act) contemplates the filing of only one petition, and "a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition." People v. Free, 122 Ill.2d 367, 375-76, 119 Ill.Dec. 325, 522 N.E.2d 1184 (1988); accord People v. Flores, 153 Ill.2d 264, 273-74, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992).

"The filing of successive post-conviction petitions sets up two competing interests. On the one hand, there is the State's interest in providing a forum for the vindication of the petitioner's constitutional rights. On the other hand, the State has a legitimate interest in the finality of criminal litigation and judgments. * * *

* * * * * *

Where, however, the claimed error is one which could not have been presented in an earlier proceeding, procedural bars may be ineffectual in bringing about that finality which ordinarily follows direct appeal and the first post-conviction proceeding. In such cases, there is the potential that a second or subsequent post-conviction petition may be filed * * *." Flores, 153 Ill.2d at 274-75, 180 Ill.Dec. 1, 606 N.E.2d 1078.

Defendant's sentence disparity claim constitutes one such case.

Defendant and three codefendants have been convicted of the triple homicide involved herein. Defendant and codefendant Luis Ruiz were tried in 1980 before one judge supervising two separate juries, and, following separate sentencing hearings, both men were sentenced to death. In his second post-conviction petition, defendant claims that the disparity between his death sentence and the prison sentences of codefendants Placido LaBoy and Nelson Aviles violates defendant's constitutional rights. Defendant has supplemented his petition with portions of the circuit court records of Aviles and LaBoy, which indicate that Aviles had been a fugitive from 1979 until 1988. After Aviles was arrested in California, he agreed to testify against LaBoy and plead guilty to the murders in exchange for an agreed recommendation by the State of a 40-year sentence. In February 1992, Aviles testified at LaBoy's jury trial and, although the State sought the death penalty, the jury concluded that a sentence other than death should be imposed. Accordingly, LaBoy was sentenced to three consecutive natural-life terms of imprisonment. In March 1992, Aviles plead guilty and received concurrent sentences of 40 years on each of the three murder counts.

LaBoy and Aviles were sentenced during the pendency of defendant's appeal from the circuit court's denial of his first post-conviction petition. On April 3, 1992, defendant filed with this court a "Motion to Take Judicial Notice of the Trial of Codefendants and to Raise the Additional Issue of Proportionality and to Submit Additional Authority." Defendant's motion was denied on May 12, 1992. This court's opinion affirming denial of defendant's first post-conviction petition was filed October 15, 1992, and rehearing was denied on December 7, 1992.

It is thus obvious that defendant's claim of unconstitutional disparity in sentencing could not have been presented in an earlier proceeding, and, indeed, his attempt to raise the claim on appeal from his first post-conviction petition was rebuffed by this court. Therefore, defendant's claim of sentence disparity is neither res judicata nor waived. See Flores, 153 Ill.2d at 281-82, 180 Ill.Dec. 1, 606 N.E.2d 1078 (where defendant's ineffective-assistance claims could not have been raised on direct appeal or in his first post-conviction proceeding, those claims were neither res judicata nor waived). Further, although defendant's direct appeal challenged his death sentence as disproportionate and excessive (Caballero, 102 Ill.2d at 46-47, 79 Ill.Dec. 625, 464 N.E.2d 223), the issue of disparity in sentencing between defendant and his codefendants is not, contrary to the State's assertion, "essentially the same" such that "res judicata bars a second visit to this issue." See Flores, 153 Ill.2d at 293-94, 180 Ill.Dec. 1, 606 N.E.2d 1078.

Finally, the statutory time limitation in the Act is also no bar to defendant's sentence disparity claim. The applicable section provides, inter alia:

"No proceedings under this Article shall be commenced more than * * * 6 months after the date of the order denying certiorari by the United States Supreme Court * * * or 3 years from the date of conviction, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence." (Emphasis added.) 725 ILCS 5/122-1 (West 1992).

Defendant's petition sets forth a factual chronology in support of his allegation that "any delay in filing this Petition was not due to Defendant's culpable negligence but was a result of the timing of the sentencings of LaBoy and Aviles." The circuit court specifically agreed with defendant on this point, stating: "defendant could not have raised this disparate sentencing issue * * * on his direct appeal or in his initial post-conviction petition." We do not believe this finding by the circuit court was manifestly erroneous. See People v. Silagy, 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830 (1987) (at a hearing under the Act, determinations by the trial court will not be...