People v. Gutierrez, 1–09–3499.

• Decision Date: 30 June 2011
• Docket Number: No. 1–09–3499.,1–09–3499.
• Citation: 2011 IL App (1st) 093499,352 Ill.Dec. 505,954 N.E.2d 365
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Lazaro GUTIERREZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 093499

954 N.E.2d 365

352 Ill.Dec. 505

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

v.Lazaro GUTIERREZ, Defendant–Appellant.

No. 1–09–3499.

Appellate Court of Illinois, First District, Second Division.

June 30, 2011.

Michael J. Pelletier, Deputy Appellate Defender of the State of Illinois, Alan D. Goldberg, Deputy Defender (Robin Price Roberstson, Assistant Appellate Defender, of counsel), for appellant.Anita Alvarez, State's Attorney of Cook County(Alan Spellberg, Mari Hatzenbuehle, Assistant State's Attorneys, of counsel), for appellee.

OPINION

Justice KARNEZISdelivered the judgment of the court, with opinion.

¶ 1DefendantLazaro Gutierrez appeals from the circuit court's denial of his request for leave to file a successive postconviction petition.Here, defendant argues: (1)he established cause and prejudice with respect to his claims of ineffective assistance of counsel, where counsel failed to inform him of the possible immigration consequences of his plea; (2)he established cause and prejudice with respect to his claim that his plea was not knowingly or voluntarily entered because the trial court failed to inform him of the potential immigration consequences as required by statute; and (3) the $50 State's Attorney fee was improperly imposed and should be vacated.For the following reasons, we affirm the judgment of the circuit court denying defendant leave to file his successive postconviction petition, but vacate the $50 State's Attorney fee imposed.

¶ 2 BACKGROUND

¶ 3Defendant was indicted with eight counts of first degree murder for his participation in the murder of Isidro Rodriguez on November 2, 2003.Prior to trial, defendant indicated that he wished to participate in a Rule 402(Ill. S.Ct. R. 402 (eff. July 1, 1997)) conference.After the conference, defendant expressed a desire to enter a plea of guilty to one count of first degree murder.The trial court admonished defendant about the rights he would be relinquishing if he chose to plead guilty, including the right to a jury trial and the right to have his guilt proven beyond a reasonable doubt by the State.The court also explained defendant's rights to confront witnesses, testify, and present a defense.Defendant stated that he understood.The court then went on to explain the possible penalties associated with pleading guilty to first degree murder and sought assurance from defendant that he was acting of his own accord and had not been unduly influenced in deciding to plead guilty.Defendant responded, “I understand everything.”The State then presented a factual basis for the plea.

“If called to testify, the State would present a family member of Isidro Rodriguez who would indicate that Mr. Rodriguez was born on September 1^st of 1957 and was in good health prior to November 2^nd, 2003, prior to 3:45 a.m.

The State would present the testimony of Doctor Aldo Fusaro; that he performed the examination or autopsy on the body of Mr. Isidro Rodriguez.To a reasonable degree of medical certainty, he would indicate that the cause of death was four gunshot wounds and that the manner of death was homicide.

Your Honor, the State would further present the testimony of Assistant State's Attorney Victoria Ciszek; that she interviewed the defendant who she would identify in open court, Mr. Lazaro Gutierrez, on April the 4^th of the year 2005; that at that time, she subsequently took a videotaped statement from this defendant.

In that videotaped statement, in summary and not verbatim, this defendant indicated that he together with a co-defendant by the name of Rosendo Ruiz had decided to perform a robbery.He indicated that Mr. Ruiz was the person who had the gun.That further they located this victim and they located him at the address of this incident where the murder occurred, which is 6050 South Sawyer in Chicago, Illinois, on November 2^nd of 2003, at 3:45 in the a.m.

This defendant indicated that his role was to be a lookout, and he was to look out for the police and the neighbors.This defendant in that videotaped statement indicated that it was his partner, Rosendo Ruiz, who exited the car and who subsequently shot the victim.

The State would further present the testimony of the eyewitness to this case.That eyewitness is a person by the name of Mr. Phillips.Mr. Phillips would indicate that he was the individual who left the car; that he would identify this defendant, Mr. Gutierrez, as the person he saw leave the car; that he subsequently heard shots and he looked out his window and he saw this defendant, Mr. Gutierrez, as the person who reentered the car with the gun in his hand.

Finally, Your Honor, the State would present the testimony of Detective O'Donovan with the Chicago Police Department.He would indicate that he was assigned to an unrelated case that occurred on November 6^th of the year 2004at 2154 South Ashland.He would identify the defendant as the offender in that case.

He would further indicate that a gun was recovered as a result of that incident; that gun was subsequently sent to the Illinois State Police; that on that gun, first of all, was this defendant's palm print; that further on that gun was the blood that subsequently the Illinois State Police performed a comparison and this defendant's DNA or profile matched the DNA from the profile that was found on the gun.

Finally, that that gun was tested and that gun was found to be the murder weapon in this case.”

¶ 4The court found a sufficient factual basis for the plea and entered a finding of guilty.The court sentenced defendant to 35 years' imprisonment in accordance with the terms of the agreement reached in the Rule 402 conference.The remaining counts of the indictment were dismissed.The court informed defendant that in order to appeal his guilty plea or sentence, he must first seek permission to vacate the judgment and withdraw the plea of guilty within 30 days.

¶ 5Defendant did not appeal his conviction or file a motion to withdraw his guilty plea.On April 19, 2007, defendant filed a pro se postconviction petition alleging that trial counsel failed to explain the case to him and lied to him so that he would accept the plea bargain.The court denied the petition as frivolous and patently without merit in a written order on June 19, 2007.The court found defendant's claims were belied by the record and noted that “petitioner's own words indicate that his plea was entered knowingly and with a full understanding of each consequence * * * and result therefrom.”The court then issued an order assessing court costs and fees in the amount of $155 for filing a frivolous petition, which included a $50 State's Attorney fee pursuant to section 4–2002.1 of the Counties Code (55 ILCS 5/4–2002.1(West 2006)).

¶ 6Defendant filed a “Motion for Leave to File a Late Notice of Appeal,” which was grated on October 23, 2007.Thereafter, the State Appellate Defender was granted leave to withdraw as counsel and this court affirmed the judgment of the circuit court on January 9, 2009.People v. Gutierrez,No. 1–07–2814, 229 Ill.2d 678, 326 Ill.Dec. 874, 900 N.E.2d 1121(2008)(unpublished order pursuant to Supreme Court Rule 23).

¶ 7 On June 30, 2009, defendant filed an “Application for Leave to File a Successive Petition for Post Conviction Relief.”In this application, defendant stated that he is a Mexican citizen living in the United States as a resident alien, and he included copies of his identification cards.He also attached a copy of the police report made following his arrest, which indicates that he was born in Mexico.In his application, defendant alleged his constitutional rights were violated because the arresting officers failed to contact the Mexican Consulate as mandated by the Vienna Convention and that trial counsel was ineffective for failing to raise this issue.In addition, defendant alleged that counsel was ineffective where he failed to notify defendant that his guilty plea would subject him to deportation.Defendant explained that had he been given this information, he would have gone to trial because the evidence against him was not overwhelming.In addition, defendant stated that the trial court violated his right to due process because it failed to inform him of the possible deportation consequences of his plea.Defendant alleged that this error precluded him from entering his plea knowingly and intelligently.

¶ 8Defendant explained that he did not raise these issues in a previous postconviction petition because he“is uneducated, [and]he didn't know that these issues existed at the time of his first postconviction.”Furthermore, defendant stated that his trial and appellate attorney failed to raise these issues.The trial court denied defendant leave to file finding that defendant failed to establish cause and prejudice as required by section 122–1(f) of the Code of Criminal Procedure of 1963(725 ILCS 5/122–1(f)(West 2006)).Specifically, the court found that “[t]he factual assertions relied on by petitioner in the instant petition were available to him when he filed his initial petition.Petitioner fails to identify any objective factor which impeded his efforts to raise these claims in his previous petition.”The court added that defendant did not “identify any objective factor which impeded his efforts to raise these claims in his previous petition.”It is from this finding that defendant now appeals.

¶ 9 ANALYSIS

¶ 10 The Post–Conviction Hearing Act (Act)(725 ILCS 5/122–1 et seq.(West 2006)) allows a criminal defendant a procedure for determining whether he was convicted in substantial violation of his constitutional rights.People v. Edwards,197 Ill.2d 239, 243–44, 258 Ill.Dec. 753, 757 N.E.2d 442(2001).To be entitled to relief under the Act, a defendant must establish a substantial violation of his constitutional rights in the proceedings that produced the conviction or sentence being...