People v. Gamino

• Decision Date: 21 June 2012
• Docket Number: No. 1–10–1077.,1–10–1077.
• Citation: People v. Gamino, 2012 IL App (1st) 101077, 973 N.E.2d 1001, 362 Ill.Dec. 605 (Ill. App. 2012)
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Filadelfo GAMINO, Defendant–Appellant.
• Court: Appellate Court of Illinois

2012 IL App (1st) 101,077

973 N.E.2d 1001

362 Ill.Dec. 605

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Filadelfo GAMINO, Defendant–Appellant.

No. 1–10–1077.

Appellate Court of Illinois, First District, Fourth Division.

June 21, 2012.

Michael J. Pelletier, Alan D. Goldberg, Manuel S. Serritos, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Miles J. Keleher, Tracey K. Annen, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

[362 Ill.Dec. 606]¶ 1 Defendant Filadelfo Gamino appeals from the second-stage dismissal of his postconviction petition. On appeal, defendant contends that he was denied effective assistance of counsel at his trial for first-degree murder when his trial counsel concealed from him the fact that disciplinary proceedings were pending against her and she had been placed under interim suspension from the practice of law prior to his trial. We reverse and remand for a third-stage evidentiary hearing to resolve the factual dispute of whether his trial counsel was suspended and unauthorized to practice law during his trial.

¶ 2 Defendant was charged with the first-degree murder of Jesus Sandoval, who was fatally shot in a street confrontation between two rival gangs. Sandoval was a member of the Almighty Bishops street gang and defendant was a member of the Latin Counts. Defendant was represented in the circuit court by attorney Julie McBride. His bench trial began on April 16, 1997. One State witness, a police officer, testified that he spoke with defendant on December 26, 1996. Defendant told the officer he heard from a friend that two other members of the Latin Counts had shot and killed Sandoval. Another officer testified that in the following month defendant came to the police station voluntarily and made an oral statement, which was reduced to writing and signed by defendant. In his statement, defendant admitted he fired the shot that fatally wounded Sandoval on December 14, 1996. At about 9:30 p.m. on that date, defendant and Rigaberto Castaneda, another Latin Counts member, were walking near a park in Cicero when defendant went into a gangway and found a .357–caliber handgun hidden under some garbage. Then defendant and Castaneda stood on the sidewalk talking with friends when a Chevrolet Tahoe approached them. Defendant recognized the vehicle as one used by the Almighty Bishops street gang. The occupants of the Tahoe began throwing beer bottles at defendant and Castaneda. Defendant ran into a gangway, retrieved the .357–caliber handgun, and returned to the street. An individual threw a beer bottle that grazed defendant's head. Defendant fired one shot at the person who threw the bottle and saw that man fall to the ground behind the Tahoe. Believing the Tahoe occupants were going to continue the dispute, defendant fired two more shots at the Tahoe before running from the scene.

¶ 3 In his defense at trial, defendant testified that he and other Latin Counts members were walking near the park on the date in question. Defendant went into a gangway and located a .357 Magnum handgun that his gang, the Latin Kings, kept there. He moved the gun to a safer place in the gangway and was returning to the sidewalk when a sport utility vehicle pulled up and rival gang members jumped out. Defendant took two steps back into the gangway and retrieved the gun. The rival gang members began throwing beer bottles and one of the bottles grazed defendant's head, spraying beer on his face and into his eyes. Defendant testified that “the gun went off almost half a second after that bottle hit [him].” He fired three more shots “in the direction of all the yelling,” and then he ran away.

¶ 4 The court found defendant guilty of first degree murder. After announcing its findings, the court complimented McBride on “a particularly excellent job” in representing defendant.

¶ 5 On May 27, 1997, the circuit court sentenced defendant to a prison term of 35 years. At the sentencing hearing, the court stated: “Attorney Julie McBride did an excellent job of representing the defendant and was well prepared in her actions and represented her client well.”

¶ 6 On direct appeal, the sole issue defendant raised was that the circuit court abused its sentencing discretion by failing to give adequate consideration to several mitigating factors. We affirmed the judgment of the circuit court. People v. Gamino, No. 1–99–0383, 309 Ill.App.3d 1076, 261 Ill.Dec. 985, 764 N.E.2d 600 (1999) (unpublished order under Illinois Supreme Court Rule 23).

¶ 7 On May 26, 2000, defendant filed a pro se petition under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2000)). Claiming the denial of effective assistance of counsel, defendant's petition alleged that his trial counsel, Julie McBride, was the subject of attorney disciplinary proceedings and was placed on interim suspension from practicing law on March 21, 1997, prior to defendant's bench trial. The petition also contended that McBride was ineffective in that she failed to make a pretrial motion to suppress statements, interview potential witnesses, prepare witnesses for testimony, or file a posttrial motion to reduce sentence. The petition further alleged that McBride was disbarred from the practice of law on December 12, 1997, and her petition for reinstatement was denied on July 6, 1998. The following documents were appended to the postconviction petition:

Letter dated May 16, 2000, addressed to Theresa Belcastro, from a senior paralegal with the Attorney Registration and Disciplinary Commission (ARDC), stating that ARDC records indicated: Attorney Julie McBride was served with a formal complaint relating to her attorney disciplinary matter on December 19, 1995; a hearing was held before the Hearing Board on August 15–16, 1996; the Hearing Board issued a report on December 17, 1996, recommending that McBride be disbarred; McBride filed exceptions before the Review Board; on December 12, 1997, the Review Board also recommended that McBride be disbarred; McBride filed a petition in the Illinois Supreme Court, requesting leave to file exceptions to the Review Board's recommendation; and on July 6, 1998, the supreme court denied the petition and disbarred McBride. The letter also stated that “on March 21, 1997, Julie McBride was suspended on an interim basis pursuant to Illinois Supreme Court Rule 774”;

Illinois Supreme Court Rule 774, “Interim Suspension” (eff. March 25, 1991);

Affidavits from defendant, his father and his mother, and a friend, Theresa Belcastro; and

Certified copy of “Report and Recommendation” of the ARDC Review Board, filed December 12, 1997, recommending that McBride be disbarred.

¶ 8 The court appointed counsel to represent defendant in the postconviction proceedings. On October 9, 2009, an assistant public defender filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), stating that she had consulted with defendant, his pro se petition adequately presented his issues, and a supplemental petition would not be presented.

¶ 9 On January 22, 2010, the State filed a motion to dismiss defendant's postconviction petition, responding to allegations of ineffectiveness of defendant's trial counsel. In response to defendant's claim that his trial counsel was under interim suspension during his trial, the State attached to its motion a written order of the Illinois Supreme Court dated May 30, 1997, in the matter of McBride's disciplinary proceedings. The order stated: “The rule to show cause that issued to respondent Julie Jane McBride pursuant to Supreme Court Rule 774 on March 21, 1997, is enforced, and respondent is suspended from the practice of law effective immediately and until further order of Court.”

¶ 10 On April 9, 2010, the circuit court granted the State's motion to dismiss defendant's postconviction petition. The court ruled that the claimed instances of ineffective assistance of trial counsel involved matters of trial strategy, and that defendant's claim that his counsel failed to investigate his case was unsupported by affidavit of any witnesses. The court made no reference to defendant's claim that his trial attorney's license to practice law had been suspended when she represented defendant at his trial.

¶ 11 On appeal, defendant contends that his representation at trial by an unlicensed attorney constituted per se ineffectiveness of counsel as a matter of law. The State responds that a per se rule of ineffectiveness of counsel is inappropriate and that the correct standard is the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a showing of both deficient performance by counsel and prejudice to the defendant from the deficient performance. People v. Hodges, 234 Ill.2d 1, 17, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009); People v. Johnson, 218 Ill.2d 125, 143–44, 299 Ill.Dec. 677, 842 N.E.2d 714 (2005).

¶ 12 At the second stage of postconviction proceedings under the Act, the defendant bears the burden of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill.2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). The State may file a motion to dismiss or an answer to the petition, and the court must then determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. People v. Wilborn, 2011 IL App (1st) 092802, ¶ 61, 356 Ill.Dec. 843, 962 N.E.2d 528. The trial court is foreclosed from engaging in fact-finding at this stage because all well-pleaded facts are to be taken as true unless they are rebutted by the record. People v. Wheeler, 392 Ill.App.3d 303, 308, 332 Ill.Dec. 194, 912 N.E.2d 681 (2009). Unless a substantial showing of a...