People v. Guerrero
| Decision Date | 08 May 2013 |
| Docket Number | No. 2-11-1161,2-11-1161 |
| Citation | 2013 IL App (2d) 111161 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCIAL GUERRERO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Kendall County.
¶ 1 Held: Defendant presented the gist of a constitutional claim that the State failed to prove defendant guilty of predatory criminal sexual assault of a child based on defendant intruding his finger into the victim's vagina. Thus, defendant sufficiently alleged that he was denied the effective assistance of appellate counsel, and the trial court erred in summarily dismissing defendant's postconviction petition. Accordingly, we reversed the trial court's summary dismissal and remanded for further proceedings.
¶ 2 Following a trial, a jury found defendant, Marcial Guerrero, guilty of three counts of predatory criminal sexual assault of a child pursuant to section 12-14.1(a) of the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/12-14.1(a) (West 2010)). The trial court sentenced defendantto three consecutive terms of 25 years' imprisonment, and we affirmed defendant's conviction and sentence on direct appeal. See People v. Guerrero, 2-07-1183 (Jan. 26, 2010). Thereafter, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (the Act) ), alleging that he was denied the effective assistance of appellate counsel because his attorney on direct appeal failed to argue that the State did not prove him guilty beyond a reasonable doubt, among other allegations. Defendant now appeals the trial court's summary dismissal of his petition. While defendant does not challenge in this appeal his convictions for counts 1 and 3 of the indictment, he argues that his conviction for count 2—committing predatory criminal sexual assault of a minor based on him penetrating the victim's vagina with his finger—should be reversed because "no evidence at trial indicated any such intrusion." For the reasons below, we reverse and remand for further proceedings.
¶ 4 The facts underlying defendant's conviction were set forth in detail in our prior order. The record reflects that, in May 2006, the State charged defendant by indictment with three counts of criminal sexual assault of a child. Count 1 alleged that defendant sexually penetrated the victim, P.G., based on contact between his penis and the victim's mouth. Count 2 alleged that defendant sexually penetrated the victim by intruding his finger into the victim's vagina. Count 3 alleged that defendant sexually penetrated the victim based on contact between his penis and the victim's anus.
¶ 5 A jury trial commenced on July 16, 2007. The victim testified via closed-circuit television. The victim testified that she turned 11 years of age in February 2003, and that in January 2003, the victim's mother began dating defendant. Defendant moved into an apartment shared by the victim, the victim's mother, the victim's younger sister, and the victim's infant brother. The victim testified that defendant committed sexual acts against her between December 2003 and January 2004.
¶ 6 The victim testified that, at various times, defendant rubbed his penis on or near her "butt hole," touched her "boobs" and vagina, and placed his penis inside her mouth. The victim testified that defendant's hand touched her vagina approximately 10 times; he put his penis in her mouth approximately 5 times; and he put his penis in contact with her anus "more than 3" times. Regarding the sexual encounters, the victim testified as follows:
The victim accompanied this testimony with a gesture, which the assistant State's Attorney explained, "she's indicated in between her fingers, it would be I guess where the crevice or the crack of the fingers."
¶ 7 During cross-examination, the victim acknowledged that she did not tell investigators that defendant put his finger in her vagina during their first sexual encounter. Regarding that encounter, the victim testified as follows:
¶ 8 The State presented other witnesses, including the victim's mother, sister, an investigator with the Kane County Advocacy Center, and the victim's former neighbor. The victim's former neighbor testified that, when she was 16 years old, she and defendant had sexual intercourse while she was babysitting defendant's brother's children. The State tendered a certified copy of defendant's conviction for criminal sexual assault, which the trial court admitted into evidence.
¶ 9 Defendant called Hollida Wakefield, an expert witness in field psychology whose work focused on interviewing children regarding sexual abuse claims, evaluating sexual predators referred for civil commitment, and reviewing cases involving coerced confessions. Wakefield opined on the victim's first interview with investigators not being videotaped, and testified that it was impossible to ascertain whether the interview was suggestive. Defendant testified on his own behalf and denied the indictment's allegations.
¶ 10 Following closing arguments, the jury returned a guilty verdict with respect to each count. Thereafter, the trial court sentenced defendant to three terms of 25 years' imprisonment, to be served consecutively. We affirmed defendant's conviction and sentence on direct appeal.
¶ 11 On June 27, 2011, defendant filed a postconviction petition pursuant to the Act. Defendant's petition alleged that his trial counsel was ineffective for failing to obtain jail records showing how often the victim visited him in jail, which would have impeached trial testimony from the victim'smother; the charges were brought after the statute of limitations had expired; appellate counsel failed to challenge the State's evidence against him on direct appeal; and the State improperly obtained his indictment by using intentionally misleading testimony.
¶ 12 On July 29, 2011, the trial court dismissed defendant's petition at the first stage of the proceedings. The trial court held that defendant had forfeited the arguments raised in his petition because After the trial court denied his motion to reconsider, defendant timely appealed.
¶ 14 The only issue in this appeal is whether the trial court erred in summarily dismissing defendant's postconviction petition. Defendant contends that the trial court improperly dismissed his petition because his appellate counsel was ineffective for failing to argue that "there was no evidence of a digital intrusion" to support a conviction for count 2 of the indictment. In support of this contention, defendant argues that no testimony or other evidence established that defendant's finger intruded the victim's vagina, but instead, the victim testified that defendant only touched her vagina "by the crack." In response, the State argues that the trial court properly dismissed defendant's postconviction petition because defendant failed to notarize the affidavit that accompanied his petition. The State further argues that "the evidence adduced at trial was sufficient to sustain defendant's conviction" on count 2 of the indictment.
¶ 15 The Act creates a three-stage process for the adjudication of postconviction petitions in noncapital cases. People v. Harris, 224 Ill. 2d 115, 125 (2007). At the first stage, the petition's allegations, liberally construed and taken as true, need to present only "the gist of a constitutionalclaim." People v. Edwards, 197 Ill. 2d 239, 244 (2001). With regard to this requirement, a defendant at the first stage need only present a limited amount of detail (People v. Ligon, 239 Ill. 2d 94, 104 (2010) (citing People v. Hodges, 234 Ill. 2d 1, 9 (2009))), and the defendant need not make legal arguments or cite to legal authority (Ligon, 239 Ill. 2d at 104 (citing People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). At the second stage, an indigent defendant is entitled to appointed counsel, the petition may be amended, and the State may answer or move to dismiss the petition. Gaultney, 174 Ill. 2d at 418. At the third stage, the trial court conducts an evidentiary hearing on the petition. Id. A defendant is not entitled to an evidentiary hearing on her or his petition as a matter of right. People v. Lucas, 203 Ill. 2d 410, 418 (2002). "Rather, a defendant is only entitled to an evidentiary hearing where the allegations contained in the petition, supported by...
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