People v. Garza

• Decision Date: 28 January 2014
• Docket Number: 4–13–0090.,Nos. 4–12–0882,s. 4–12–0882
• Citation: 2014 IL App (4th) 120882,5 N.E.3d 240,378 Ill.Dec. 860
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Juan A. GARZA, JR., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (4th) 120882

5 N.E.3d 240

378 Ill.Dec. 860

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

v.Juan A. GARZA, JR., Defendant–Appellant.

Nos. 4–12–0882, 4–13–0090.

Appellate Court of Illinois, Fourth District.

Jan. 28, 2014.

Michael J. Pelletier, Karen Munoz, Duane E. Schuster, State Appellate Defender's Office, Springfield, for appellant.

Julia Reitz, State's Attorney, Urbana (Patrick Delfino, David J. Robinson, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 In July 2011, defendant, Juan A. Garza, Jr., pleaded guilty to first degree murder (720 ILCS 5/9–1(a)(3) (West 2010)). In July 2011, the trial court sentenced defendant to 35 years' imprisonment. In June 2012, defendant filed a pro se motion for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012)). In August 2012, the trial court, on the State's motion, dismissed the petition. In December 2012, defendant filed a pro se postconviction petition. In January 2013, the court summarily dismissed the petition.

¶ 2 Defendant argues this court should vacate his plea because the 35–year sentence he negotiated with the State is void. He contends his 35–year sentence, based on the 15–year firearm enhancement (730 ILCS 5/5–8–1(a)(1)(d)(i) (West 2010)), is void because it can be inferred from the factual basis he personally discharged a firearm causing the death of the victim. He asserts this triggered the 25–year mandatory firearm sentencing enhancement (730 ILCS 5/5–8–1(a)(1)(d)(iii) (West 2010)) and a minimum 45–year sentence. We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The Plea and Sentencing Hearings

¶ 5 In November 2010, the State charged defendant with five counts of first degree murder (720 ILCS 5/9–1(a)(1), (2), (3) (West 2010)). All five counts alleged defendant “personally discharged a firearm” causing the death of Cruse Jimenez.

¶ 6 On July 7, 2011, the State charged defendant with a sixth count of first degree murder (720 ILCS 5/9–1(a)(3) (West 2010)) (count VI). The information alleged “defendant, or one for whose conduct he is legally responsible, without legal justification, while committing a forcible felony, namely Robbery * * *, shot Cruse Jimenez while armed with a .45[-] caliber pistol or similar firearm, thereby causing the death of Cruse Jimenez.”

¶ 7 The same day, the trial court held a plea hearing. The State informed the court defendant would plead guilty to count VI. In exchange for his guilty plea, he would receive a 35–year prison sentence. The State informed the trial court the 15–year firearm enhancement applied. The court admonished defendant he was subjected to a mandatory minimum sentence of 35 years. The State presented a factual basis. On November 6, 2010, at approximately 1:45 a.m., Jimenez was shot outside the Cherry Orchard apartment building in Rantoul, Illinois. Witnesses would testify they heard a voice demanding Jimenez's wallet and observed Jimenez handing something to a male. Jimenez then ran toward the apartment building. The male fired multiple shots toward Jimenez. He was struck five times. Defendant was in a vehicle in the apartment building's parking lot in possession of a “large caliber handgun.” Other witnesses saw defendant “put up the hood of a hooded sweatshirt and say either that he had something to do or something to the effect of [‘]hitting a lick.[’]” Defendant exited the vehicle and shots were fired “immediately after” he exited the vehicle. When police arrested defendant, they recovered a .45–caliber pistol matching the expended shell casings found at the crime scene.

¶ 8 After the plea hearing, the trial court sentenced defendant to 35 years' imprisonment. Defendant did not file a posttrial motion or appeal the sentence.

¶ 9 B. The Section 2–1401 Petition

¶ 10 On June 27, 2012, defendant filed a pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012)). Defendant, as best we can understand, asserted (1) the trial court did not comply with Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001), (2) the trial court did not admonish him he was required to file a motion to withdraw his guilty plea, (3) he did not receive “the benefit of the bargain” when a three-year mandatory supervised release (MSR) term was imposed, and (4) ineffective assistance of counsel.

¶ 11 In August 2012, the State filed a motion to dismiss. The State argued a section 2–1401 petition was not the appropriate method to raise constitutional violations or ineffective assistance of counsel claims. The trial court dismissed defendant's petition. In September 2012, defendant filed a response to the motion to dismiss and the court reaffirmed its dismissal. In September 2012, defendant filed a notice of appeal. This court docketed the appeal as No. 4–12–0882.

¶ 12 C. The Postconviction Petition

¶ 13 In December 2012, defendant filed a postconviction petition pursuant to section 122–1 of the Post–Conviction Hearing Act (725 ILCS 5/122–1 (West 2012)). Defendant asserted (1) various claims of ineffective assistance of counsel, and (2) the firearm enhancement was unconstitutional. In January 2013, the trial court summarily dismissed defendant's petition. Defendant filed a notice of appeal. This court docketed the appeal as No. 4–13–0090.

¶ 14 On defendant's motion, we consolidated these two appeals.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant does not argue any of the issues raised in his section 2–1401 or postconviction petitions. Rather, he argues this court should vacate his plea because the 35–year sentence he negotiated with the State is void. He acknowledges the parties “tried” to structure a plea agreement acknowledging his possession of a firearm (subjecting him to the 15–year firearm enhancement (730 ILCS 5/5–8–1(a)(1)(d)(i) (West 2010))) without subjecting him to the 25–year mandatory firearm sentencing enhancement (730 ILCS 5/5–8–1(a)(1)(d)(iii) (West 2010)) for personally discharging the firearm. He asserts “the parties failed this endeavor, because both the charging instrument and the factual basis in [his] case detailed circumstances under which a trier of fact could reasonably infer that [he] personally discharged the firearm that killed Cruse Jimenez.” We disagree and affirm.

¶ 17 A. Review of the Petition for Relief From Judgment and Postconviction Petitions

¶ 18 Section 2–1401 of the Code of Civil Procedure allows for relief from final judgments more than 30 days after their entry. 735 ILCS 5/2–1401 (West 2012). Section 2–1401 can be used to collaterally attack a void judgment. 735 ILCS 5/2–1401(f) (West 2012). A trial court's dismissal, without an evidentiary hearing, of a section 2–1401 petition is reviewed de novo. People v. Vincent, 226 Ill.2d 1, 18, 312 Ill.Dec. 617, 871 N.E.2d 17, 28 (2007).

¶ 19 The Post–Conviction Hearing Act provides a method for a criminal defendant to assert his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122–1 (West 2012). “[A] postconviction proceeding is a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial.” People v. Harris, 224 Ill.2d 115, 124, 308 Ill.Dec. 757, 862 N.E.2d 960, 966 (2007). To survive dismissal, a pro se postconviction petition's allegations, taken as true, must present the “ ‘gist’ ” of a constitutional claim. People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204, 1208 (2009). A petition which is sufficient to avoid summary dismissal is one which is not frivolous or patently without merit. Id. at 11, 332 Ill.Dec. 318, 912 N.E.2d at 1209. A trial court's summary dismissal of a defendant's postconviction petition is reviewed de novo. Id. at 9, 332 Ill.Dec. 318, 912 N.E.2d at 1208.

¶ 20 B. Defendant's Voidness Claim

¶ 21 Defendant did not raise his voidness argument before the trial court. He asserts his argument is not subject to forfeiture because a void judgment can be attacked at any time.

¶ 22 Defendant does not offer any explanation why he did not present his voidness argument before the trial court. The general rule is a party may not raise an issue for the first time on appeal. See People v. Jones, 211 Ill.2d 140, 148, 284 Ill.Dec. 287, 809 N.E.2d 1233, 1239 (2004); 725 ILCS 5/122–3 (West 2012) (waiver of claims not raised in the original or amended postconviction petition). There are reasons for this. Requiring alleged errors to be presented to the trial court creates the opportunity for the parties to develop a factual record, allows the trial court to correct its error, and reduces the burden of an appeal. See People v. Enoch, 122 Ill.2d 176, 185–86, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1129–30 (1988); People v. Herron, 215 Ill.2d 167, 175, 294 Ill.Dec. 55, 830 N.E.2d 467, 472 (2005). Defendant is correct “a void order may be attacked at any time or in any court, either directly or collaterally” ( People v. Thompson, 209 Ill.2d 19, 25, 282 Ill.Dec. 183, 805 N.E.2d 1200, 1203 (2004)) and it is not subject to waiver ( id. at 27, 282 Ill.Dec. 183, 805 N.E.2d at 1205). This should not be construed as a license to reserve voidness arguments for the appellate court after the trial court has rejected other arguments.

¶ 23 1. The Firearm Enhancement Statute

¶ 24 At the time of the offense, section 5–8–1(a)(1)(d) of the Unified Code of Corrections provided as follows:

“(d)(i) if the person committed the offense while armed with a firearm, 15 years shall be added to the term of imprisonment imposed by the court;

(ii) if, during the commission of the offense, the person personally discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court;

(iii) if, during the commission of the offense, the person personally discharged a...