People v. Gonzalez
| Decision Date | 07 May 2019 |
| Docket Number | No. 1-15-2760,1-15-2760 |
| Citation | 142 N.E.3d 253,436 Ill.Dec. 150,2019 IL App (1st) 152760 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fernando GONZALEZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Patricia Mysza, and Drew A. Wallenstein, of State Appellate Defender’s Office, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Michael M. Glick and Erin M. O’Connell, Assistant Attorneys General, of counsel), for the People.
¶ 1 Following a jury trial, defendant Fernando Gonzalez was found guilty of criminal sexual assault ( 720 ILCS 5/11-1.20(a)(1) (West 2012)) against E.S. (count I) and A.B. (count II), two counts of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(ii), (d)) against E.S. (counts III and V), and two counts of aggravated criminal sexual abuse against A.B. (counts IV and VI). The trial court merged the respective aggravated criminal sexual abuse counts against each victim into the two criminal sexual assault counts against each victim (counts I and II) and sentenced defendant to 10 years in prison on each count, to be served consecutively.
¶ 2 On appeal, defendant contends (1) the evidence was insufficient to prove him guilty because the State did not prove sexual penetration or that he used force or threat of force; (2) counsel was ineffective for failing to move to dismiss the new charges filed against him in 2015, as his statutory right to a speedy trial was violated; (3) the trial court erred because it did not comply with the Batson procedure ( Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ) after he made a gender-based objection to the State's peremptory challenges; (4) the trial court erred when it allowed trial counsel to represent him during pretrial proceedings when a per se conflict of interest existed; and (5) certain fines and fees were improperly assessed. For the reasons below, we affirm defendant's convictions but remand to the trial court for the sole purpose of correcting the fines and fees order.
¶ 4 Defendant's convictions arose from sexual assaults of two 13-year-old girls, A.B. and E.S., that occurred in August 2012. In February 2013, defendant was initially charged by indictment with nine counts. Seven counts alleged sexual offenses against A.B. only, including criminal sexual assault (count I), aggravated criminal sexual abuse (counts II, III, and IV), indecent solicitation of a child (counts V and VI), and criminal sexual abuse (count IX). The remaining two counts referred to E.S. and alleged he committed sexual exploitation of a child by persuading A.B. (count VII) and E.S. (count VIII) to remove E.S.'s clothing for the purpose of sexual arousal or gratification.
¶ 5 On the July 26, 2013, court date, defendant's private counsel, Timothy Grace, informed the court that the parties were negotiating a potential resolution. On the next court date, August 29, 2013, Grace told the court that the State "sort of" made an offer that it had to put in writing. Grace also informed the court that an issue had arisen "about a week ago" regarding defendant's prior case from 2000 that could be the subject of a motion for proof of other crimes. Grace told the court that he was the assistant state's attorney (ASA) on that case and had taken a statement from defendant. The court concluded that, before it addressed the State's plea offer, it needed to address the conflict issue and whether Grace had an obligation to withdraw or if defendant could waive the conflict. The court told defendant, "this is a matter that we will continue conversations with you about and you can speak to your attorney about." The court continued the case for the parties to research the matter.
¶ 6 On December 1, 2013, defendant, through Grace, filed a "motion to allow the defendant to waive the per se conflict and for Timothy M. Grace to continue as his attorney of record." In the motion, defendant requested to waive any per se conflict and stated that the issue should be revisited if the State filed a motion for proof of other crimes. To the motion, defendant attached an affidavit, acknowledging that Grace was the ASA on his 2000 case involving the charge of aggravated criminal sexual abuse and averring he wanted Grace as his attorney and was knowingly and intelligently waiving any conflict of interest.
¶ 7 On the December 10, 2013, court date, Grace informed the court that he had filed the motion to waive the conflict of interest, and the court continued the case for a hearing. On the January 14, 2014, hearing date, Grace acknowledged there was a potential conflict of interest but that it would be triggered only if the State filed a motion for proof of other crimes. The court continued the case so it could review the parties' case law, and on the next court date, the court tendered case law on the conflict of interest issue to the parties and continued the matter, noting that the State had not filed a motion for proof of other crimes. The State informed the court that it could make an oral motion stating that it would not file such a motion.
¶ 8 On the next court date, the State informed the court that defendant had rejected its offer and that, if the case went to trial, it may introduce proof of other crimes. The court told the parties that, if the State filed a motion for proof of other crimes, there was a conflict that defendant could not waive because Grace could potentially be called as a witness against defendant. The court continued the case, instructing Grace to speak to defendant about getting a new attorney. Thereafter, on May 20, 2014, the State filed a motion to admit evidence of defendant's prior sex offense. On June 13, 2014, the court held a hearing on defendant's motion to waive per se conflict, after which it found that defendant could not waive the conflict and disqualified Grace from representing him. The court stated that the State filed a motion for proof of other crimes and the cases "now take on the relationship of being related." It noted that Grace could not provide undivided loyalty when he "is put in a position where he has to argue his other crimes evidence in which he was involved in the prosecution of, and that is where it takes it to a different level." In August 2014, another attorney appeared on defendant's behalf.
¶ 9 On February 26, 2015, a grand jury reindicted defendant on six charges (case No. 15-CR-3349) and the State nol-prossed the charges in the 2013 indictment (case No. 13-CR-3485). Two counts alleged defendant committed criminal sexual abuse in that, by the use or threat of force, he committed an act of sexual penetration by placing part of his hand into the sex organ of E.S. (count I) and into the sex organ of A.B. (count II). Two counts alleged he committed aggravated criminal sexual abuse in that he committed an act of sexual conduct by touching either directly or through clothing the sex organ of E.S. (count III) and the sex organ of A.B. (count IV) and he did so using force or threat of force. Two counts alleged he committed aggravated criminal sexual abuse in that he committed an act of sexual conduct by touching, for the purpose of sexual gratification or arousal, the sex organ of E.S. (count V) and the sex organ of A.B. (count VI).
¶ 10 Upon filing the new indictment, the State told the court that the original indictment only pertained to one victim "for some reason," it reindicted defendant to include the other victim, "there were no surprises," and there was "nothing really new." The State informed the court that it had made a plea offer on the 2013 indictment but defendant rejected it. With respect to the new charges, the State told the court the parties were discussing the possibility of a plea offer, and defense counsel stated it looked like they were "pretty far apart."
¶ 11 Defendant elected for a jury trial and the case proceeded to jury selection. The court and the parties questioned the potential juror members in panels of 18, and each party had seven peremptory challenges. The first panel consisted of three men: Arturo Rivera, Roger Brown, and Gregory Jackson. The court dismissed Rivera for cause, and the State requested to dismiss Brown for cause because he was not forthcoming about previous criminal charges against him for solicitation for a sexual act and domestic battery. After the court questioned Brown, it denied the State's challenge for cause, noting that it accepted Brown's statement that he misunderstood the question about whether he had been "accused" in a criminal case. The State used four peremptory challenges on the first panel: Brown, Jackson, and two women.
¶ 12 The second panel of 18 potential jury members consisted of four men: Angel Oliveros, Dion Hampton, Wesley Merritt, and Ronald Czimra. After the second panel was questioned, the State used its three remaining peremptory challenges on Hampton and two women. Defendant made a Batson gender-based objection to the State's peremptory challenges on Jackson, Brown, and Hampton, arguing that the State used its challenges on "three out of the four men" and the panel was overwhelming female. The following exchange occurred after defendant objected:
The State explained that Jackson had been a defendant in a murder trial in which he was found not guilty and could...
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