People v. Escobedo

• Decision Date: 19 October 2007
• Docket Number: No. 1-05-2229.,1-05-2229.
• Citation: 377 Ill.App.3d 82,878 N.E.2d 767
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ESCOBEDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

878 N.E.2d 767

377 Ill.App.3d 82

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ESCOBEDO, Defendant-Appellant.

No. 1-05-2229.

Appellate Court of Illinois, First District, Fifth Division.

October 19, 2007.

Richard A. Devine, State's Attorney, and James Fitzgerald, Peter Fischer, Assistant State's Attorneys, of counsel, Chicago, for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender, and Joshua A. Tepfer, Assistant Appellate Defender, Chicago, for Defendant-Appellant.

MODIFIED OPINION UPON DENIAL OF PETITION FOR REHEARING

Justice TULLY delivered the opinion of the court:

Following a jury trial, defendant-appellant, Daniel Escobedo, was convicted of murder and sentenced to 40 years in prison. Defendant simultaneously filed both a postconviction petition for relief pursuant to the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)), and a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). Treating them as a single, unified petition for postconviction relief, the trial court found the petition frivolous and patently without merit and summarily dismissed at the first stage of proceedings. On appeal, defendant argues (1) that the trial court erred when it treated the two petitions as a single postconviction petition without following the procedures outlined by our supreme court in People v. Shellstrom, 216 Ill.2d 45, 295 Ill.Dec. 657, 833 N.E.2d 863 (2005), and (2) that the trial court erred when it summarily dismissed his petition because his claim that a juror was sleeping during his trial was neither frivolous nor patently without merit. For the reasons below, we affirm the circuit court's dismissal of defendant's postconviction petition. In addition, we vacate the circuit court's dismissal of defendant's section 2-1401, which the circuit court recharacterized as a postconviction petition and we remand for compliance with Shellstrom.

BACKGROUND

Defendant's conviction stems from the January 16, 1983, murder of Ki Hwan Kim. As the vice-president of Fureal Leather and Furs, Kim's duties included collecting the day's sales and receipts from Fureal's sales area at the old International Amphitheatre at 42nd Street and Halsted Street in Chicago, Illinois. Defendant also worked for Fureal at the Amphitheatre, as did his nephew, Mitsuru Morales. On January 14, 1983, after Kim had collected the sales and receipts and left the building, defendant, Morales, and another employee, Wayne Haeffele, discussed a plan to rob Kim. The plan was further developed in a second discussion the following day.

On January 16, 1983, the plan was carried out. At approximately 5:30 p.m., Kim collected the day's sales and receipts, placed them in his briefcase, put on his coat, and left the building. As planned, Morales went out to the parking lot and told Kim that he had a telephone call. Kim and Morales returned to the building, where defendant stood by the telephone with the receiver in his hand, offering it to Kim. As Kim took the telephone receiver, defendant took a nightstick from behind the desk and struck Kim on the back of his head. As Kim dropped the telephone receiver and staggered backward, Haeffele grabbed Kim from behind, placed Kim in a choke hold, and wrestled him to the ground. Defendant then stabbed Kim with a sharp object in both the head and the midsection.

Defendant and Haeffele then carried Kim's body to the backseat of Kim's car, which was parked in the parking lot in front of the building. Defendant then instructed Morales to clean up the blood while he and Haeffele disposed of Kim's body. Defendant and Haeffele returned an hour and a half later and picked up Morales. While driving Morales to his home, defendant gave Morales $50, which was his share of the robbery.

Kim's body was discovered by his wife the following morning shortly after 7 a.m. When Kim had not returned home by 10 p.m. the previous night, Kim's wife called his boss and friends, none of whom had any information as to his whereabouts. After remaining awake the whole night, Kim's wife noticed her husband's car covered with snow parked in front of their house. She found Kim's body on the floor of the car. An autopsy determined the cause of death to be multiple stab wounds to the head and chest.

Though Morales and defendant were both questioned by police, no arrests were made in connection with the murder until October 1999. In August 1999, Morales' cousin, Larry Lee, was arrested for possession of a stolen motor vehicle. Lee revealed to police that Morales had told him of his involvement in the 1983 murder of a Korean merchant. Shortly thereafter, Lee testified before a grand jury regarding what Morales had told him. On October 5, 1999, Morales was taken into police custody for questioning. After conferring with his mother and his lawyer, Morales gave a videotaped statement and was charged with murder and armed robbery.

After learning that Morales had been arrested and had implicated him in Kim's murder, defendant fled to Mexico. Defendant was apprehended in Mexico in 2001 and, pursuant to an outstanding federal probation warrant, he was extradited to the Northern District of Illinois on June 17, 2001.

On July 17, 2001, defendant was indicted for his involvement in Kim's murder. Morales entered into a plea agreement pursuant to which he pled guilty to armed robbery of Kim and testified at defendant's trial regarding defendant's role in Kim's murder. In his own defense, defendant testified that he neither planned nor participated in the murder.

At the conclusion of the trial, the jury found defendant guilty of murder. The trial court denied his motion for a new trial, stating, "the evidence in this case as to [defendant's] guilt was overwhelming. Much of the evidence in this case derived from family members that testified against him." The defendant was then sentenced to 40 years in prison, and defendant's conviction and sentence were affirmed on direct appeal. People v. Escobedo, No. 1-03-3171 (December 23, 2005) (unpublished order under Supreme Court Rule 23).

On April 13, 2005, defendant filed a petition for postconviction relief pursuant to the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)) as well as a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). In the postconviction petition, defendant argued that trial counsel was ineffective when he failed to move for a mistrial after defendant alerted him to a juror sleeping during a critical part of the State's case. In his affidavit, defendant described the sleeping juror as a "heavy-set male, older man, with gray hair." The postconviction petition was accompanied by the affidavit, which the section 2-1401 petition adopted in its entirety. Defendant also attempted to obtain an affidavit from his cousin, Richard Galvin, who was present at the trial and observed the sleeping juror. Though he was unable to obtain an affidavit, defendant indicated that Galvin had informed him of his willingness to testify regarding the sleeping juror.

In its order dated May 3, 2005, the trial court noted that the section 2-1401 "Petition for Relief from Judgment" merely adopted the allegations in, and the affidavit accompanying, the postconviction petition. Because the arguments made on behalf of the section 2-1401 petition were "more appropriate for postconviction review," the court dealt with both the section 2-1401 petition and the postconviction petition as "a single, unified postconviction petition." The trial court determined that defendant's claims were frivolous and patently without merit and summarily dismissed defendant's petition for postconviction relief. Following the summary dismissal of his single, unified petition for postconviction relief, defendant filed this timely appeal.

DISCUSSION

On appeal, defendant argues that the trial court erred by recharacterizing his section 2-1401 petition as a postconviction petition for relief without adhering to the procedures outlined by our supreme court in People v. Shellstrom, 216 Ill.2d 45, 295 Ill.Dec. 657, 833 N.E.2d 863 (2005). Defendant contends that before treating his pro se pleading as a postconviction petition, the trial court was required to notify him of the recharacterization, advise him of the consequences, and afford him the opportunity to either amend or withdraw the petition. The State concedes that the trial court failed to comply with the procedures set forth by our supreme court in Shellstrom, but asserts that the trial court's failure to do so amounted to "harmless error" because defendant filed his section 2-1401 petition simultaneously with his postconviction petition. We agree with defendant.

The Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)) enables criminal defendants to initiate collateral proceedings to challenge prior convictions on grounds of a substantial denial of constitutional rights. People v. Barrow, 195 Ill.2d 506, 518-19, 255 Ill.Dec. 410, 749 N.E.2d 892 (2001). Proceedings pursuant to the Act that do not involve the death penalty can be viewed as consisting of three stages. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). To survive the first stage, a pro se litigant's petition need only present the gist of a constitutional claim. 725 ILCS 5/122-2.1 (West 2004); People v. Jones, 213 Ill.2d 498, 504, 290 Ill.Dec. 519, 821 N.E.2d 1093 (2004). While this is a low threshold (Jones, 213 Ill.2d at 504, 290 Ill.Dec. 519, 821 N.E.2d 1093), the Act allows the trial court to summarily dismiss any petition it finds frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2004). At the second stage, an indigent petitioner is appointed counsel (725 ILCS 5/122-4 (West 2004)), an amended petition may be filed, and the State is allowed to file responsive pleadings (725...