People v. Gacho

• Decision Date: 29 April 2016
• Docket Number: No. 1–13–3492.,1–13–3492.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Robert GACHO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

53 N.E.3d 1054

403 Ill.Dec. 417

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Robert GACHO, Defendant–Appellant.

No. 1–13–3492.

Appellate Court of Illinois, First District, Sixth Division.

April 29, 2016.

Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, and Brett C. Zeeb, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg and Jon Walters, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The defendant, Robert Gacho, appeals from the circuit court's denial of his petition brought pursuant to the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2008)), following an evidentiary hearing. He argues that the denial of his petition is manifestly erroneous as the evidence presented established both that he was denied a fair trial due to the corruption of the trial judge and that he was denied effective assistance of counsel when his trial attorney labored under a conflict of interest. For the reasons which follow, we affirm the judgment of the circuit court.

¶ 2 The defendant, along with Dino Titone and Joseph Sorrentino, was charged with multiple counts of aggravated kidnapping, armed robbery, and the murders of Tullio Infelise and Aldo Fratto. The defendant's trial was severed from that of his co-defendants. The defendant and Titone were subsequently tried simultaneously before a single judge, Thomas Maloney, with the defendant electing a jury trial and Titone choosing a bench trial. The jury that found the defendant guilty on all counts and, finding no mitigating factors, imposed a sentence of death for the murders of Infelise and Fratto. On direct appeal, the supreme court affirmed the defendant's convictions but vacated his death sentence and ordered that he be resentenced. People v. Gacho, 122 Ill.2d 221, 264, 119 Ill.Dec. 287, 522 N.E.2d 1146 (1988). On remand, the defendant was sentenced to life imprisonment.

¶ 3 The evidence supporting the defendant's convictions is detailed in the supreme court's decision on his direct appeal. See Gacho, 122 Ill.2d at 229–32, 119 Ill.Dec. 287, 522 N.E.2d 1146. Consequently, we will recount only those facts necessary to place the defendant's post-conviction claims in context.

¶ 4 On February 15, 1991, the defendant filed a pro se post-conviction petition, asserting, among other claims, that Maloney's corruption deprived him of a fair trial and that he was denied effective assistance of counsel when his trial attorney labored under a conflict of interest by reason of his having represented a relative of the victim, Tullio Infelise. On November 10, 1997, following the appointment of post-conviction counsel, an amended post-conviction petition was filed on behalf of the defendant which stated that it replaced all of the claims in the defendant's initial petition. As grounds for relief, the amended petition also raised, inter alia, the corruption of the trial judge and a conflict of interest on the part of the defendant's trial attorney.

¶ 5 On April 19, 1999, the defendant's post-conviction counsel withdrew and new counsel was appointed. The defendant's new post-conviction counsel filed a supplemental post-conviction petition on July 30, 2008, and informed the court that the pleading was intended to supplement the defendant's original pro se petition. The supplemental petition noted that Maloney had been convicted of accepting bribes in exchange for promises to “fix” trials. It also alleged that Titone, the co-defendant whose bench trial was conducted simultaneously with the defendant's jury trial, had paid Maloney to find him not guilty. The claim was supported by the affidavit of Titone's father who described a scheme pursuant to which his son's attorney would give money to an intermediary, who would then pass the money to Maloney. The affidavit asserted that Titone's attorney told Titone's father that, “as long as Maloney got two out of three” of the co-defendants, “it would be enough”; that is, “as long as [the defendant and Sorrentino] were found guilty, [Maloney] could get away with letting [Titone] go free.” However, Maloney ultimately found Titone guilty and sentenced him to death. In his affidavit, Titone's father speculated that either his son's attorney never paid the $10,000 bribe or Maloney reneged on the deal for fear of being discovered. The supplemental petition asserted that Titone had been granted a new trial based upon evidence that Maloney had been paid $10,000 to find him not guilty. The supplemental petition was also supported by the defendant's affidavit, asserting that his pretrial attorney, Daniel Radakovich, had suggested that he also bribe Maloney, but that he was unable to raise the funds to do so. In addition, the affidavits of the defendant's mother, Edith Rhoades, and his aunt, Margaret Shur, were attached to the supplemental petition. In her affidavit, Rhoades averred that, on the date that the defendant was arraigned, Radakovich told her that, if she could raise $60,000 to give to the judge, the charges against the defendant would be reduced. The affidavit also states that Rhoades subsequently informed Radakovich that she was unable to raise $60,000. In her affidavit, Shur averred that the defendant wrote her a letter stating that for $60,000 he could “walk from the case,” and that during a later conversation with the defendant, the subject of a $60,000 bribe to be paid to the judge was brought up.

¶ 6 On February 4, 2009, the State filed a motion to dismiss the defendant's supplemental post-conviction petition. On May 29, 2009, the circuit court granted the State's motion and dismissed the defendant's petition without an evidentiary hearing. The defendant appealed and this court affirmed the dismissal of one of the claims raised in the supplemental petition, but reversed the dismissal of the defendant's claim that he was denied a fair trial as the result of judicial corruption and reversed the dismissal of his ineffective assistance of counsel claim based upon his attorney's alleged conflict of interest. We remanded the matter back to the circuit court with instructions to conduct an evidentiary hearing on the two remaining claims to determine if either entitled the defendant to a new trial. People v. Gacho, 2012 IL App (1st) 091675, 359 Ill.Dec. 964, 967 N.E.2d 994 (Gacho I ), ¶ 33.

¶ 7 On remand, the circuit court held the evidentiary hearing as directed. The defendant testified that, in January 1983, one of his friends, Bill Benham, hired attorneys Jerry Kruz and Radakovich to represent him in the underlying case which was pending before Maloney. According to the defendant, Radakovich told him that Maloney could be bribed, and that for $60,000, or the equivalent value of narcotics, he would be acquitted. The defendant stated that he told Radakovich to speak to his mother about raising the money. According to the defendant, every time they spoke, Radakovich suggested that he pay Maloney, and that when he was unable to raise the money, Radakovich seemed disinterested in his case. The defendant testified that he spoke to Benham about hiring a new attorney, and that shortly thereafter, his aunt hired Robert McDonnell to represent him.

¶ 8 The defendant initially testified that, just before his trial commenced, McDonnell informed him that, in the past, he had represented Tullio Infelise or Rosario Infelise. He then testified that McDonnell told him that he had represented the victim, Tullio Infelise, on some legal matter “a long time ago,” but that McDonnell could not remember what that matter was. When cross examined, the defendant admitted that he had never alleged in any of his post-conviction petitions that McDonnell had represented the victim, Tullio Infelise; rather, he only alleged that McDonnell had represented a member of Tullio Infelise's family. Also on cross-examination, the defendant testified that he first learned that McDonnell was representing Rosario Infelise after he was convicted. Certified copies of records from the criminal case in which McDonnell represented Rosario Infelise revealed that McDonnell represented Rosario Infelise from January 1984, through August 15, 1984. The record reflects that, on September 19, 1984, before the defendant's trial began, an assistant State's Attorney informed the court that, in the past, McDonnell had represented a member of Tullio Infelise's family. Thereupon, the following exchange took place between the trial judge, Maloney, and the defendant:

“THE COURT: Mr. Gacho, are you aware of all of these circumstances that are being referred to and discussed now?

DEFENDANT: Yes Sir.

THE COURT: And have you discussed it with your attorney?

DEFENDANT: Yes.

THE COURT: And you have no objection to whatever has occurred in the past regarding Mr. McDonnell's representation of a family member of one of the victims?

DEFENDANT: No, I don't.

THE COURT: And you wish him to continue as your lawyer, is that correct?

DEFENDANT: Yes.”

¶ 9 Ronald Barrow, who was serving a life sentence for murder at the Menard Correctional Center, testified on behalf of the defendant at the evidentiary hearing. According to Barrow, in May 1995, while he was incarcerated in the Cook County jail waiting to testify in an unrelated case, he spoke with Titone who told him that “he felt it was bad Karma when the judge double crossed him on a deal he made to slam Bob Gacho and convict him.” According to Barrow, Titone told him that his father had paid Maloney $10,000 to find him not guilty. When, on cross-examination, Barrow was shown the Cook County sheriff's office booking card for the Cook County jail, he admitted that it failed to reflect that Titone was in the jail in May 1995. The records did reflect that Titone was in the Cook County jail from October 15, 1997, through October 20, 1998. However, Barrow was not in the Cook County jail after May 1995.

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