People v. Luciano

Decision Date14 March 2013
Docket NumberNo. 2–11–0792.,2–11–0792.
Citation370 Ill.Dec. 587,988 N.E.2d 943,2013 IL App (2d) 110792
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Michael A. LUCIANO, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Recognized as Unconstitutional

S.H.A. 730 ILCS 5/5–8–1(a)(1)(c)(i)Alan D. Goldberg, Jonathan Yeasting, State Appellate Defender's Office, for appellant.

Joseph H. McMahon, State's Attorney (Lawrence M. Bauer, Jay Paul Hoffman, Mary Beth Burns, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[370 Ill.Dec. 589]¶ 1 Defendant, Michael A. Luciano, appeals the judgment of the circuit court of Kane County, summarily dismissing his postconviction petition. Defendant questions the propriety of his mandatory natural-life-without-parole sentence in light of recent Supreme Court authority and urges that his counsel was ineffective for failing to move to dismiss his 2007 murder charges because they were based on the same acts as charges to which, in 1991, he pleaded guilty. We reverse, vacate defendant's sentence, and remand the cause with directions.

¶ 2 I. BACKGROUND

¶ 3 In People v. Luciano, No. 2–09–0066 (2010) (unpublished order under Supreme Court Rule 23) ( Luciano I ), we set forth in detail the factual background of this case, and we do not need to repeat it. Instead, we summarize the salient facts for purposes of the issues raised in this appeal.

¶ 4 A. The Offense

¶ 5 On Halloween night, 1990, Albert “Psycho” Gonzalez, then-president of the Insane Deuces, a street gang in Aurora, was shot to death at his home on Grove Street in Aurora. Suspicion for the shooting fell on the Latin Kings, another gang in Aurora, and specifically on defendant; his father, Angel Luciano, who was the leader (Inca) of the Latin Kings in Aurora; and Robert “Droopy” Rangel. In 1990 and 1991, defendant was charged with solicitation to commit aggravated discharge of a firearm and illegal possession of weapons, some of which were used in the Gonzalez shooting. Rangel went to trial for the murder while the charges against defendant pended. Rangel was acquitted of the murder. After Rangel's acquittal, the State entered into a plea agreement with defendant in which defendant would plead guilty to possessing certain firearms, including those used in the Gonzalez shooting, in exchange for the State nol-prossing the charge of solicitation to commit aggravated discharge.

¶ 6 In about 2005, the case was revived when members of the Aurora Latin Kings were being arrested and charged with violating federal drug laws. To avoid heavier sentences, some gang members agreed to cooperate with the authorities, including the Kane County State's Attorney. In 2007, both defendant and Angel Luciano were charged with the murder of Gonzalez on the theory that they ordered fellow Latin Kings to carry out the shooting. Angel Luciano was acquitted of the Gonzalez murder charges while defendant was convicted of intentional murder and “strong probability” murder as well as felony murder predicated on mob action.

¶ 7 The conviction of the Gonzalez murder was defendant's second conviction of murder. Some months before the trial in this matter, defendant was convicted of the 1989 murder of Willie Arce. When this case advanced to sentencing, defendant, having been convicted of two murders, was deemed subject to a mandatory sentence of natural life without parole, notwithstanding the fact that he was 17 years old at the time of the offenses. Defendant directly appealed his conviction in this case, arguing only that, because the same evidence was presented against Angel Luciano during their simultaneous trial, and Angel Luciano was acquitted, the evidence was insufficient to support defendant's conviction. We held that the evidence was sufficient to convict defendant because the trial court carefully segregated and considered the evidence pertaining to each defendant. Because some evidence was admitted against defendant and not against his father, i.e., the evidence pertaining to each defendant was not identical, the evidence against defendant supported his conviction. See Luciano I, No. 2–09–0066 (Oct. 26, 2010) (unpublished order under Supreme Court Rule 23).

¶ 8 Subsequently, defendant filed a pro se postconviction petition. In the postconviction petition, defendant raised, among other things, an ineffective-assistance claim, contending that the 2007 murder charges were subject to compulsory joinder with the 1991 solicitation-to-commit-aggravated-discharge and gun-possession charges, so trial counsel was ineffective for failing to move to dismiss the 2007 charges, and appellate counsel was ineffective for failing to raise trial counsel's ineffective assistance. The trial court summarily dismissed the petition.

¶ 9 B. The Trial

¶ 10 We next give a brief overview of the trial. As earlier noted, on Halloween night of 1990, Gonzalez was shot to death at his home. A police investigation revealed that the shooters stood on a grassy area about 190 feet from the house and shot through its walls. Gonzalez was struck in the chest and died from a bullet wound to his heart. Scant comfort though it may be, at the time of the shooting, Gonzalez's wife and children were out of the house trick-or-treating. The police investigation of the grassy area uncovered shells and shell casings of various calibers and types, including rifle and shotgun ammunition.

¶ 11 On November 4, 1990, the police searched a residence on Galena Boulevard in Aurora, recovering a number of weapons and ammunition. Photographs of Angel Luciano with others making gang signs, Latin Kings records, solvent, and rubber gloves were also recovered. Searches of other structures on the property, namely, a trailer and a panel van, uncovered more ammunition, photographs, and a newspaper clipping about the Gonzalez murder.

¶ 12 On November 7, 1990, the police searched an apartment on Best Place in Aurora following an interview with Hector “Winehead” Rodriguez. Hector Rodriguez had told police about an October 31, 1990, meeting at which weapons were distributed to Latin Kings members, including Rangel, Jose “Bam Bam” Martinez, and Jose “Speedy” Rivera, with orders to use them to shoot Gonzalez. Hector Rodriguezhad also told police that, on November 3, 1990, the weapons were returned to defendant at the Best Place apartment.

¶ 13 Police executed the search warrant late that night. Inside the bedroom, police recovered weapons that were later determined to be consistent with the evidence discovered at the grassy area across from Gonzalez's house. In particular, they found a sawed-off Ted Williams 12–gauge shotgun, a Commando Mark .45–caliber assault rifle with 27 bullets still in its magazine, a .30–caliber carbine, and a Marlin .30–30 rifle. In addition, assorted ammunition of various calibers was recovered. Testing matched evidence from the grassy area to the Ted Williams shotgun, the Marlin .30–30 rifle, and the Commando Mark .45 assault rifle. Additionally, defendant's fingerprints were found on the Commando Mark .45 assault rifle.

¶ 14 Juan Acevedo spoke to police and revealed that three Latin Kings—Rangel, Michael “Loco” Rodriguez, and Jose Delatorre—visited his house after the shooting. Acevedo related that the three used an outside water spigot to wash their hands, and then they left. The police searched Michael Rodriguez's home, recovering a loaded .22–caliber gun.

¶ 15 Late in 1990, the Kane County State's Attorney began prosecuting cases arising from the Gonzalez shooting. Rangel was charged with Gonzalez's murder; defendant was charged with a number of gun possession offenses and, in May 1991, the charge of solicitation to commit aggravated discharge of a firearm was added. While defendant's charges were pending, Rangel went to trial on the murder charge. At the trial, Hector Rodriguez and Acevedo testified. Rangel was acquitted. Following the acquittal, in December 1991, defendant pleaded guilty to possessing the Ted Williams shotgun, the Marlin .30–30 rifle, and the Commando Mark .45 assault rifle, in exchange for the State's agreement to nol-pros the charge of solicitation to commit aggravated discharge of a firearm. We note that, at defendant's trial for the murder of Gonzalez, his guilty pleas were entered into evidence to demonstrate that he possessed the weapons that were used in the Gonzalez shooting.

¶ 16 The Gonzalez murder investigation languished for about 15 years. Federal efforts into investigating the Aurora Latin Kings began to turn members and former members into cooperating witnesses. In 2007, defendant was charged with the murder of Gonzalez. At the trial, several witnesses who were active in the Aurora Latin Kings around the time of the Gonzalez shooting testified for the State.

¶ 17 Michael Rodriguez testified about a meeting, held in the basement of Angel Luciano's house on Galena Boulevard, that occurred before Halloween. According to Michael Rodriguez, the same members who would later attend the Halloween meeting were present. Michael Rodriguez testified that Angel Luciano told the attending members that Halloween presented the gang with a good opportunity to wear black (one of the gang's colors) and do shootings. Michael Rodriguez also testified about the Halloween night meeting, which took place at the house of Angel Luciano's girlfriend. Attending the meeting were Angel Luciano, defendant, Hector Rodriguez, Rivera, Jose “Fang” Hernandez, Juan “Orco” Corral, Jose Oliva, and “Joe.” A number of rifles were piled on a table and defendant told the membership to go out and shoot up rival gangs. Michael Rodriguez testified that defendant passed a shotgun to Rangel, a .30–30 to “Joe,” and the .45–caliber assault rifle to Hector Rodriguez. Michael Rodriguez testified that he did not receive a weapon from defendant and asserted that Irving Childress...

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