People v. Flores, 2-21-0757

CourtUnited States Appellate Court of Illinois
Writing for the CourtJORGENSEN, JUSTICE
Citation2022 IL App (2d) 210757
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL A. FLORES, Defendant-Appellant.
Docket Number2-21-0757
Decision Date21 November 2022

2022 IL App (2d) 210757


MANUEL A. FLORES, Defendant-Appellant.

No. 2-21-0757

Court of Appeals of Illinois, Second District

November 21, 2022

Appeal from the Circuit Court of Lake County. No. 09-CF-1874 Honorable Daniel B. Shanes, Judge, Presiding.

Jed Stone, of Stone & Associates, Ltd., of Waukegan, for appellant.

Eric F. Rinehart, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Lynn M. Harrington, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Brennan and Justice Hudson concurred in the judgment and opinion.



¶ 1 Defendant, Manuel A. Flores, appeals from the order of the circuit court of Lake County denying him leave to file his successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He claims that his petition, which sought relief from his plea of guilty to aggravated arson (720 ILCS 5/20-1(a), 20-1.1(a)(2) (West 2008)), set forth a colorable claim of actual innocence. We conclude that the trial court properly denied defendant leave to file his petition. Therefore, we affirm.


¶ 3 In June 2009, the State brought a nine-count indictment against defendant and codefendants, Elver H. Hernandez (Elver) and Edwin J. Hernandez (Edwin). The counts alleged


that the three defendants threw an object containing a flammable substance at the Mundelein home of Virginia Estrada, causing a fire that damaged the house, killed Jorge Juarez, and injured Virginia Estrada and Virginia Juarez. Counts I through VI charged various theories of first-degree murder (id. § 9-1(a)(1)-(3)) based on Jorge Juarez's death. The intentional murder counts alleged transferred intent in that the defendants acted with the intent to kill Rafael Juarez (Rafael) but instead caused Jorge Juarez's death. Finally, counts VII through IX charged aggravated arson (id. §§ 20-1(a), 20-1.1(a)(1), (2)) based on the damage to the house and the injuries to Virginia Estrada and Virginia Juarez.

¶ 4 On December 5, 2011, the parties informed the court that they had reached a plea agreement in defendant's case. Defendant would plead guilty to count VII, which alleged that "the defendants ***, while committing an Arson, *** knowingly partially damaged a building of Virginia Estrada, being a residence ***, and the defendant reasonably should have known that one or more persons was present therein." In exchange for his plea, defendant would receive a sentence of 18 years' imprisonment, and the State would nol-pros the remaining eight counts. After hearing the plea terms, the trial court stated that it recalled from Elver's and Edwin's cases that defendant "was not there when the arson took place" and that "[t]he plea is based upon an accountability liability." Defense counsel confirmed the court's recollection. The court asked for a factual basis for the plea, and this exchange occurred:

"MR. KLEINHUBERT [(ASSISTANT STATE'S ATTORNEY)] Judge, for the purposes of this plea, on May 8th of 2009 there was a meeting held at Alex Paz'[s] house and through the investigation, it was learned that Alex Paz was a member of the Latin Kings, that this defendant was present at his house for a meeting. Also, Edwin and [Elver]
were present, Wilmer Garcia, a Mike Puga and a Ricardo Truijillo. All were members of the Latin Kings.
During the course of that meeting, one of the subjects was-some members of the gang, one of them, specifically, [Rafael], who, there was some trouble with them within the gang, and there was an SOS issued, which was Smash on Site [sic], which was a disciplinary action against, in this case, [Rafael]. That was ordered by [defendant], and it was given to [Elver], who then later recruited his brother, Edwin, and during the early morning hours of May 9th of 2009, they took a bottle with some accelerant in it and a wick and lit it and threw it at [Rafael's] house.
Inside the house was [sic] Rafael's mother, Virginia Estrada, and the daughter, Virginia Juarez. For the purposes of this plea, both of them were injured both from the fire and from jumping out of the second floor window receiving injuries.
[Defendant] was not present. He gave the order for the SOS, and during the investigation, there was no specific order to burn the house. There was just a general order to commit this SOS.
Through the investigation, they did not determine that this defendant actually gave a specific order to burn the house or to actually use fire in the form of the SOS, and that occurred in Mundelein, Lake County, Illinois.
THE COURT: So, essentially, let me summarize. The defendant, in legal terms in the accountability language, encouraged Mr. Hernandez to commit an offense. Mr. Hernandez chose to use the fire which ultimately resulted in the harm in this case.
THE COURT: And that constitutes accountability under the law, certainly, although it's different than committing the offense, itself, and accordingly, the Court finds it's an appropriate disposition."

¶ 5 The trial court found the factual basis sufficient and, after admonishing defendant, accepted his plea as knowing and voluntary. Accordingly, the court imposed the agreed sentence of 18 years' imprisonment.

¶ 6 Defendant did not file a postplea motion or a direct appeal. In March 2013, defendant filed a pro se postconviction petition under the Act. In the petition. defendant sought to withdraw his guilty plea because defense counsel was ineffective for, inter alia, failing to investigate and present witnesses who would attest that someone other than defendant within the Latin Kings gave the "Smash on Sight" (SOS) order to Elver. Defendant named several individuals but provided an affidavit from only one: Hoke L. Turner III. In his affidavit, dated May 3, 2010, Turner averred that he became acquainted with Edwin while they were in the same prison. According to Turner, Edwin told him that defendant was an enforcer within the Latin Kings but was not the one who issue the SOS order against Rafael at the May 8, 2009, meeting. Turner stated that, based on what Edwin said, "the actions that ensued the night of the incident were neither of [defendant's] knowledge nor consent." However, Turner did not say that Edwin identified who did, in fact, issue the SOS order.

¶ 7 Defendant also attached various police reports to his petition.

¶ 8 The trial court dismissed the petition as frivolous and patently without merit. The court determined that defendant failed to provide the necessary factual support for his assertion that someone else issued the SOS order. The court discounted Turner's affidavit because it was dated


almost 19 months before defendant's guilty plea and described Turner's discussions with Edwin but not defendant himself. The court also found that the police reports attached to the petition were, in fact, consistent with the factual basis for defendant's plea.

¶ 9 Defendant did not appeal the dismissal of his petition.

¶ 10 On September 29, 2021, defendant filed the petition at issue. It was titled "Post-Conviction Petition Actual Innocence Under 725 ILCS 5/122-1(c)." Defendant attached to his petition (1) the transcript of the December 5, 2011, plea hearing; (2) an incomplete copy of an August 27, 1998, application for a search warrant, apparently for a residence associated with Edwin and Elver; (3) various police reports from 2009; (4) Turner's affidavit of May 3, 2010 (which was attached to the initial petition); (5) an April 7, 2011, press release from the United States Department of Justice (DOJ), announcing that federal prosecutors had obtained convictions of several high-ranking Latin King members operating in the City of Chicago; (6) a July 26, 2016, press release from the United States Attorney for the Northern District of Illinois (USAO), reporting that federal prosecutors had obtained indictments against several leaders and rank-and-file members of the Latin Kings operating in the Chicago metropolitan area; (7) a November 29, 2014, Orlando Sentinel article about the culture of the Latin Kings in central Florida; and (8) defendant's July 23, 2021, affidavit claiming that Gerardo Salazar and Juan Galaviz issued the SOS order against Rafael. Defendant averred that "[he] did not order an SOS" and was "not legally responsible for the crimes of those who did."

¶ 11 Defendant did not include with his petition a motion for leave to file a successive petition. Nor did his petition itself ask for leave to file a successive petition or even acknowledge that it was successive. Moreover, although the petition was titled "Actual Innocence," defendant devoted most of the petition to claims that defense counsel denied him effective assistance. Defendant


argued that counsel was ineffective for (1) neglecting to challenge the facial sufficiency of the factual basis for defendant's guilty plea to aggravated arson and (2) failing to "challenge any of the State's wrong-minded theory [of criminal liability] in spite of the wealth of contradictory evidence in police reports," Turner's affidavit, and the other documents attached to the...

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