People v. Garcia

• Citation: 46 N.E.3d 769
• Decision Date: 08 September 2015
• Docket Number: 1–13–1229.,Nos. 1–13–1180,s. 1–13–1180
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Gerardo GARCIA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

46 N.E.3d 769

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Gerardo GARCIA, Defendant–Appellant.

Nos. 1–13–1180

1–13–1229.

Appellate Court of Illinois, First District, Second Division.

Filed Sept. 8, 2015.

Modified Upon Denial of Rehearing Feb. 2, 2016.

Michael J. Pelletier and Darrel F. Oman, both of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Christine Cook, and Katarina Durcova, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HYMAN

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Gerardo Garcia, appeals from the dismissal of his third stage postconviction petition, contending the trial court erred when, after a retrospective fitness hearing, it found him fit to stand trial for first-degree murder and to plead guilty to unlawful use of a weapon by a felon. Garcia further contends the trial court erred in failing to advance his ineffective assistance of counsel claim past second stage proceedings. He argued that his trial counsel should not have stipulated to the State's factual basis and allowed him to plead guilty to the felony weapons offense.

¶ 2 The trial court's dismissal of Garcia's postconviction petition following a third stage evidentiary hearing was not manifestly erroneous. The State offered credible evidence in the form of both defense counsels' testimony and a psychiatrist's report finding Garcia fit to stand trial in the murder case and that he made his plea in the felony weapons case knowingly and intelligently.

¶ 3 Regarding Garcia's challenge to the second stage dismissal of his ineffective assistance of counsel claim, the parties dispute whether we may consider the merits. Contrary to the State's contention that we lack jurisdiction to consider Garcia's ineffective assistance claim because he did not include it in his notice of appeal, we find review of the issue proper where the only possible way for him to appeal the second stage dismissal was by filing a timely notice of appeal after the remainder of his postconviction petition was denied after the third stage hearing. Having done so, Garcia properly appealed the second stage dismissal, a step in the procedural progression leading to the final judgment. Taking all well-pled facts as true, the trial court properly dismissed Garcia's ineffective assistance of counsel claim during the second stage proceedings finding he failed to make a substantial showing that trial counsel provided ineffective assistance of counsel in stipulating to the State's factual basis, which supported a finding of guilt on the felony offense.

¶ 4 BACKGROUND

¶ 5 Procedural History

¶ 6 In 1998, the State charged Garcia with two counts of unlawful use of a weapon by a felon (UUWF) and two counts of simple unlawful use of a weapon (UUW) in case No. 98 CR 30521. The following year, the weapon charges still pending, the State charged Garcia in case No. 99 CR 25668 with first-degree murder, attempted first-degree murder, and aggravated battery after Garcia brought a gun to a fist fight.

¶ 7 Mental Health History

¶ 8 On December 5, 2000, while in custody awaiting the murder trial, Garcia was admitted to Cermak Hospital and placed in full leather restraints for four hours after he threatened to commit suicide by hanging himself or cutting his wrists. Garcia reported he wanted to kill himself because his case appeared to be going “bad,” and because he was facing 20 to 40 years in prison if found guilty. Garcia also reported he felt stress due to his incarceration, the possible outcome of the case, worry for his one-year-old daughter, and his ex-girlfriend's pregnancy by another man. Doctors prescribed multiple medications to treat anxiety and depression (Zoloft

, Trazodone and Lorazepam a/k/a Ativan ). Lorazepam is a sedative when administered intramuscularly rather than orally. The hospital discharged Garcia the following day, but he remained on psychotropic medication while in Cook County jail.

¶ 9 On April 2, 2001, Garcia was taken to the Cermak emergency room following an attempted suicide by cutting his ankles and trying to overdose on medication, his own and that of fellow inmates. In May 2001, Garcia began taking an additional prescription antidepressant with a sedative function, Doxepin

a/k/a Sinequan.

¶ 10 On June 29, 2001, following a bench trial, the court found Garcia guilty of first-degree murder and aggravated battery. Garcia did not testify. When questioned by the court about his decision, Garcia answered “Yes,” “No,” and “No, I don't want to testify.”

¶ 11 The following month, on July 19, Garcia again was taken to Cermak emergency room. There a psychiatrist considered him at high risk of attempting suicide because he had planned ways to kill himself. That evening, the acute care unit admitted Garcia, who exhibited depression and mental confusion. The next day, a psychologist noted Garcia displayed “limited insight, judgment & impulse control.” The acute care unit discharged Garcia two days later.

¶ 12 On August 19, 2001, Garcia went to Cermak Hospital for exhibiting acute depression, mental confusion and psychotic symptoms, including auditory hallucinations and paranoid ideation

. He reported he had been fine until taken off medication on account of stomach pain. Garcia resumed taking his medication and was discharged the next day.

¶ 13 On September 11, 2001, the night before his sentencing hearing on the first-degree murder conviction, Garcia was taken to the emergency room and placed in restraints “for the protection of self and others” after fighting with another inmate. He remained in the restraints overnight for 16 hours. He received the sedative Lorazepam

(Ativan ) intramuscularly at 5:55 p.m. “in order to achieve sedation and control.”

¶ 14 The next day, after returning from his sentencing hearing on his first degree murder conviction and his guilty plea hearing, Garcia was observed being socially withdrawn and resting in his room. On September 13 and 14, 2001, Garcia was calm, alert, and quietly resting.

¶ 15 Sentencing and Plea Hearing

¶ 16 On September 12, 2001, the court held Garcia's sentencing hearing on his murder conviction. During mitigation, defense counsel informed the court, “since my client has been in custody for this, he has been put into the [Psych] Ward because of the suicide attempt, and he is on medication for that.” Counsel requested Garcia receive a sentence “much closer to the minimum than the maximum.” The trial court asked whether the medication counsel referred to was psychotropic; counsel responded, “No, it is not, your Honor, it is an anti-depressant.” The court replied, “Thank you. Likewise, I certainly could see nothing but that Mr. Garcia is anything other than competent. He certainly has conducted himself in an appropriate manner through these proceedings.” Defense counsel stated, “I agree, your Honor.” In allocution, Garcia stated he was sorry, “I was not meaning to kill nobody, you know. And I want you to have mercy in dealing with me in court.”

¶ 17 The trial court sentenced Garcia to 28 years' imprisonment for first-degree murder and to a concurrent term of 6 years for aggravated battery with a firearm.

¶ 18 The same day, Garcia pled guilty to UUWF in the weapons case (98 CR 30521), in exchange for two years' imprisonment to run consecutively to his earlier 28–year sentence. During the plea hearing, the court admonished Garcia of his rights and he answered appropriately all questions, including those concerning his decision to plead guilty, his right to a trial by jury, and whether he wished to waive the presentence investigation. Garcia replied with one-word answers of “yes.”

¶ 19 The State put forth a factual basis for Garcia's guilty plea. Relevant for this appeal is the State's contention that Garcia admitted to police officers that his car was at the location of the arrest and that he had a gun in it. The officer recovered from Garcia's car a .25–caliber semiautomatic blue steel pistol loaded with four live rounds. Defense counsel stipulated to the evidence and the court found Garcia guilty of UUWF. Asked whether he wished to say anything before sentencing, Garcia replied, “No.” The court sentenced Garcia to two years in prison on count I, which alleged that he possessed a firearm “on or about his person.”

¶ 20 Following the hearing, Garcia returned to Cermak Hospital where he remained for two days before being taken back to the jail.

¶ 21 Direct Appeal

¶ 22 On appeal from his murder conviction, Garcia argued the State failed to prove him guilty beyond a reasonable doubt because he was acting in self defense of a friend when he shot and killed the murder victim and shot the other victim. Alternatively, Garcia argued his first-degree murder conviction should be reduced to second-degree murder because he unreasonably believed the circumstances justified his use of deadly force in defense of another. This court affirmed Garcia's murder conviction on direct appeal. People v. Garcia, 343 Ill.App.3d 1286, 305 Ill.Dec. 883, 856 N.E.2d 688 (2003)

(unpublished order under Supreme Court Rule 23 ). Garcia did not seek to withdraw his guilty plea or appeal his weapons conviction.

¶ 23 Postconviction Proceedings

¶ 24 On March 3, 2004, 2 1/2 years after his plea in the weapons case, Garcia filed an untimely pro se motion to withdraw his guilty plea, citing his mental health condition, medication, and treatment at Cermak Hospital. The court denied his motion. Garcia did not appeal.

¶ 25 On September 15, 2004, Garcia filed a pro se postconviction petition in the weapons case raising issues regarding his fitness to stand trial, his decision to plead guilty and his sentencing. Garcia argued the combination of medications he was taking at the time of his guilty plea rendered him “totally lethargic and unable to assist in his defense or make any rational decisions.” Garcia also alleged his trial counsel was ineffective for...