People v. Flores, 70205

• Citation: 606 N.E.2d 1078,153 Ill.2d 264,180 Ill.Dec. 1
• Decision Date: 19 November 1992
• Docket Number: No. 70205,70205
• Parties: , 180 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee, v. Mario FLORES, Appellant.
• Court: Supreme Court of Illinois

Page 1078

606 N.E.2d 1078 153 Ill.2d 264, 180 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee,
v.
Mario FLORES, Appellant. No. 70205. Supreme Court of Illinois. Nov. 19, 1992.
Rehearing Denied Feb. 1, 1993.

Page 1081

[153 Ill.2d 269] [180 Ill.Dec. 4] Charles M. Schiedel, Deputy Defender, Sup. Ct. Unit, Springfield, Steven Clark, Asst. Appellate Defender, Chicago, both of the Office of the State Appellate Defender, for appellant.

[153 Ill.2d 270] Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago and Renee Goldfarb and James S. Veldman, Asst. State's Attys., of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Defendant, Mario Flores, appeals from an order of the circuit court of Cook County dismissing his petition and supplemental petition for post-conviction relief. Defendant's appeal lies directly to this court. 134 Ill.2d R. 651(a).

FACTUAL AND PROCEDURAL BACKGROUND

Defendant's conviction stems from his participation in the shooting death of Gilbert Perez. At defendant's trial, the jury heard evidence that in the early morning hours of January 1, 1984, defendant and Victor Flores (Victor), while driving in defendant's sister's car, encountered Perez at the scene of an accident. Harry Gomez subsequently arrived at the scene in his car.

Nancy Lebron testified that, once at the scene, one of the men put his arms around Perez and talked to him "as if they were good friends." Meanwhile, defendant returned to his car, removed a shotgun from the trunk, and pointed it in the direction of Perez. After one of his companions shouted at him, defendant put the gun into the backseat of the car and returned to the group. Perez then walked to defendant's car and sat in the front passenger seat. Defendant sat in the backseat and Victor drove away.

Victor testified that, as he, defendant and Gomez approached Perez, Perez began to threaten them. Defendant retrieved a shotgun from his car but, at Gomez's direction,[153 Ill.2d 271] returned the gun to the car. Subsequently, Gomez put his "arm around" Perez and led Perez to defendant's car, then Gomez returned to his car and drove to St. Paul Avenue. Victor, accompanied by defendant and Perez, followed Gomez in defendant's car. During the drive, defendant told Perez that Gomez was from the "D's." Victor explained that the "D's" were a street gang affiliated with a larger gang known as the "Folks," and that they were enemies of the gang to which Victor and defendant belonged.

Upon arriving at St. Paul Avenue, defendant, along with Perez, and Gomez got out of their respective cars. Victor remained in defendant's car. Victor testified that, as he was turning the car around, he heard "four or five" gunshots. In his side, rearview mirror, Victor saw Perez lying on the ground and defendant standing next to the body with a shotgun in his hand.

Following trial, the jury found defendant guilty of armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2) and murder (Ill.Rev.Stat.1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)). At the death penalty hearing requested by the State, the jury found that there existed one or more of the aggravating factors in section 9-1(b) of the Criminal Code of 1961 (Ill.Rev.Stat.1985, ch. 38, par. 9-1(b)), and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court then sentenced defendant to death.

Page 1082

[180 Ill.Dec. 5] Defendant's sentence was stayed (134 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 134 Ill.2d R. 603). Before his appeal was heard, defendant filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.), which was denied following an evidentiary hearing. Defendant's appeal from the denial of post-conviction relief was consolidated with the appeal of his conviction and sentence. This court affirmed defendant's[153 Ill.2d 272] conviction and sentence, as well as the denial of post-conviction relief. (People v. Flores (1989), 128 Ill.2d 66, 131 Ill.Dec. 106, 538 N.E.2d 481.) Subsequently, the United States Supreme Court denied defendant's petition for writ of certiorari. (Flores v. Illinois (1990), 497 U.S. 1031, 110 S.Ct. 3291, 111 L.Ed.2d 799.) Defendant then instituted this present action for post-conviction relief. (Ill.Rev.Stat.1989, ch. 38, par. 122-1 et seq.) Upon the State's motion, the trial court dismissed defendant's petition without an evidentiary hearing. It is from that dismissal which defendant now appeals.

In this appeal, defendant requests that this court vacate his death sentence and remand for the imposition of a prison term or, in the alternative, remand for a new death penalty hearing. He raises three issues in support of his appeal for post-conviction relief. Specifically, defendant contends that he was denied effective assistance of counsel on direct appeal and in his first post-conviction proceeding in violation of the sixth amendment because (1) counsel failed to recognize and assert an error which occurred in the State's closing argument to the jury and (2) counsel failed to assert as error the disparate sentencing between defendant and his co-defendant, Harry Gomez; and his death sentence violates the eighth amendment because (3) it is arbitrarily premised upon the actions of his codefendant, Gomez. We find that the trial court's dismissal of defendant's post-conviction petition was proper and, accordingly, we affirm.

POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act) provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial. (People v. Eddmonds (1991), 143 Ill.2d 501, 510, 161 Ill.Dec. 306, 578 N.E.2d 952.) The post-conviction proceeding is not an appeal per se but is, instead, a collateral attack on a prior judgment. [153 Ill.2d 273] (People v. Ruiz (1989), 132 Ill.2d 1, 9, 138 Ill.Dec. 201, 547 N.E.2d 170.) To be entitled to post-conviction relief, the defendant must establish that a substantial violation occurred at the proceeding that produced the judgment under attack. (Ruiz, 132 Ill.2d at 9, 138 Ill.Dec. 201, 547 N.E.2d 170; Ill.Rev.Stat.1991, ch. 38, par. 122-1.) A trial court's determination on a post-conviction proceeding will not be reversed unless contrary to the manifest weight of the evidence. Eddmonds, 143 Ill.2d at 514, 161 Ill.Dec. 306, 578 N.E.2d 952.

DISCUSSION

I. Successive Post-Conviction Petitions

Initially, the State argues that defendant's present post-conviction claims are not properly before this court. Thus, at the outset, we must determine a defendant's entitlement to consideration of a second or subsequent post-conviction petition.

Defendant, in his brief, makes no attempt to justify our consideration of his present post-conviction claims. However, at oral argument, defense counsel offered the following rationale for filing the second post-conviction petition. Defense counsel stated that upon this court's affirmance of both defendant's conviction and the denial of post-conviction relief, defendant's appellate counsel withdrew from the case. This court then appointed current counsel to represent defendant in any subsequent proceedings. Upon being appointed, current counsel noticed that prior counsel failed to assert as error in the prior proceedings the claimed errors now presented. Believing these unasserted errors to be meritorious, and in light of the seriousness of the penalty imposed in this case, defendant filed a second post-conviction petition.

Page 1083

[180 Ill.Dec. 6] The Post-Conviction Hearing Act contemplates the filing of only one post-conviction petition. (People v. Free (1989), 122 Ill.2d 367, 375, 119 Ill.Dec. 325, 522 N.E.2d 1184.) Successive petitions may, however, be allowed where the proceedings on the initial [153 Ill.2d 274] petition were deficient in some fundamental way. See Free, 122 Ill.2d at 376, 119 Ill.Dec. 325, 522 N.E.2d 1184, citing People v. Nichols (1972), 51 Ill.2d 244, 246, 281 N.E.2d 873; People v. Hollins (1972), 51 Ill.2d 68, 70, 280 N.E.2d 710; People v. Slaughter (1968), 39 Ill.2d 278, 235 N.E.2d 566.

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. "Without finality, the criminal law is deprived of much of its deterrent effect." (Teague v. Lane (1989), 489 U.S. 288, 309, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334, 355.) The successive filing of post-conviction petitions plagues that finality.

In Illinois, the operation of waiver and res judicata has generally contributed to the finality of criminal litigation. Section 122-3 of the Act provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." (Ill.Rev.Stat.1991, ch. 38, par. 122-3.) Additionally, "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." (Emphasis added.) (Free, 122 Ill.2d at 376, 119 Ill.Dec. 325, 522 N.E.2d 1184.) Further, any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived. (Ill.Rev.Stat.1991, ch. 38, par. 122-2.1.) Finally, where a petitioner has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to the reviewing court, if not presented, are waived. (People v. Neal (1990), 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808; People v. Stewart (1988), 121...