People v. Mars

• Decision Date: 25 February 2013
• Docket Number: No. 2–11–0695.,2–11–0695.
• Citation: 985 N.E.2d 570,2012 IL App (2d) 110695,368 Ill.Dec. 763
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Mark R. MARS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110695
985 N.E.2d 570
368 Ill.Dec. 763

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Mark R. MARS, Defendant–Appellant.

No. 2–11–0695.

Appellate Court of Illinois,
Second District.

Dec. 26, 2012.
As Modified upon Denial of Rehearing Feb. 25, 2013.

[985 N.E.2d 571]

Alan D. Goldberg and Shawn O'Toole, State Appellate Defender's Office, Chicago, for appellant.

Michael J. Waller, State's Attorney, Waukegan (Lawrence M. Bauer and Victoria E. Jozef, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION
Justice ZENOFF delivered the judgment of the court, with opinion.

[368 Ill.Dec. 764]¶ 1 Defendant, Mark R. Mars, appeals from an order of the circuit court of Lake County dismissing his postconviction petition at the first stage. We affirm.

¶ 2 BACKGROUND

¶ 3 On March 2, 2005, the grand jury indicted defendant on one count of first-degree murder, alleging that he caused the death of a taxi driver, Lee Jones, while committing the forcible felony of aggravated robbery (720 ILCS 5/18–5(a) (West 2004)). In July 2007, the State indicted defendant on two additional counts (counts II and III) of first-degree murder, based upon the forcible felonies of attempted aggravated robbery (720 ILCS 5/8–4(a), 18–5(a) (West 2004)) and attempted robbery (720 ILCS 5/8–4(a), 18–1(a) (West 2004)). Defendant moved to dismiss counts II and III of the indictment on the grounds of denial of due process and denial of a speedy trial. The trial court granted defendant's motion but then reversed itself when it granted the State's motion to reconsider. All three counts of the indictment were presented to the jury. The [368 Ill.Dec. 765]

[985 N.E.2d 572]

following facts pertinent to this appeal were adduced at trial.

¶ 4 In the late evening hours of January 31, 2005, defendant was riding in a cab driven by the victim. During the ride from Waukegan, Illinois, to North Chicago, Illinois, defendant unsuccessfully demanded money from the victim and stabbed the victim in the head, shoulder, and right arm. This was at 2:15 a.m. on February 1, 2005. When the victim's front-seat passenger and coworker, Motyka Gibson, called in a robbery in progress, defendant jumped out of the cab and ran away. Gibson later identified defendant to the police as the perpetrator from a photo lineup.

¶ 5 The victim was taken by ambulance from the scene to St. Therese Hospital in Waukegan. He was admitted to the emergency room at 3:57 a.m. Nurse Dolores Kilpatrick remembered him as a large, African–American gentleman with cuts to the back of his head and on his arms. According to Kilpatrick, the victim was “scared, but then he really didn't want us to take care of him properly.” Kilpatrick testified that the victim would not allow the doctor to stitch his wounds. At 4:30 a.m. the victim was discharged.

¶ 6 Lorraine Jones, the victim's wife, testified that the victim came home on February 1, 2005, between 2 a.m. and 4 a.m. in a “wrapped up, bloody” condition. She noted that a cut on his right arm on top of the wrist kept bleeding. Over the next 24 hours, the victim was in a lot of pain and was “delirious,” his right arm turned blue, green, and red, and it was significantly swollen. The next day, February 2, the victim's right arm turned black. Jones testified that the fingers turned black first and then the blackness went up the arm. Jones rubbed the arm with warm cloths, and when that did not ease the condition, she accompanied the victim to Kenosha Memorial Hospital in Kenosha, Wisconsin (they lived in Kenosha), where they arrived between 11 a.m. and 1 p.m. They waited for a while before the victim was seen in an examining room.

¶ 7 Dr. Suzanne Siegel was the emergency room physician who attended the victim. She testified that the victim's complaint was of arm pain—he reported that he had been hit with a heavy object—but when a physician's assistant checked the victim's blood sugar, it was very high and Dr. Siegel took over the case. Because the arm X rays were negative, the hospital staff treated the injury as a “soft tissue” injury, iced the arm, and elevated it. The victim was given morphine for the pain. According to Dr. Siegel, she observed small scratches and abrasions on the victim's arms but nothing that required stitches. Dr. Siegel testified that she shifted her focus to caring for the victim's diabetes, which he had reported. She administered intravenous (IV) fluids and insulin. According to Dr. Siegel, the victim resisted treatment and pulled out the IVs. Both Dr. Siegel and Jones kept trying to convince him to stay in the hospital and continue his therapy. However, the victim checked himself out against medical advice.

¶ 8 Jones had already left the hospital, so the victim took a cab home. He was in pain, lying on the stairs when Jones got home. She helped him inside. She saw that the blackness on his right arm had reached his bicep. Three hours later, a friend took the victim to St. Catherine's hospital in Kenosha. The victim presented himself at St. Catherine's at 11:02 p.m. From St. Catherine's, the victim was taken to a hospital in Milwaukee, Wisconsin, where he died of sepsis due to necrotizing fasciitis (flesh-eating disease), following the surgical amputation of his right arm at the shoulder.

[985 N.E.2d 573]

[368 Ill.Dec. 766]¶ 9 Dr. Jeffrey Jentzen, a forensic pathologist and the medical examiner for Milwaukee County, performed an autopsy on the victim. Dr. Jentzen observed bruising and lacerations to the back of the head. According to Dr. Jentzen, the victim suffered a blunt force injury to the skull. Dr. Jentzen also examined the severed right arm. He observed a wound, also described as a “cut,” in the right arm. There were also surgical incisions on the forearm and the back of the hand. These were fasciotomy incisions made by the surgeons to relieve pressure caused by swelling due to infection. Dr. Jentzen further observed necrotic tissue. Dr. Jentzen opined that a break in the tissue of the right arm allowed bacteria into the tissues that caused necrotizing fasciitis, which—almost always fatal—caused the victim's death. Dr. Jentzen testified that the cut on the right arm was the “direct” cause of the sepsis.

¶ 10 The jury found defendant not guilty on count I of the indictment (felony murder predicated on aggravated robbery) and not guilty on count II (felony murder predicated on attempted aggravated robbery), but found him guilty on count III (felony murder predicated on attempted robbery). The trial court sentenced defendant to 43 years' imprisonment. This court affirmed on direct appeal ( People v. Mars, No. 2–08–0251 (2009) (unpublished order under Supreme Court Rule 23)).

¶ 11 On March 11, 2011, defendant filed a pro se petition for postconviction relief under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2010)). Defendant alleged, inter alia, that his appellate counsel rendered ineffective assistance for failing to argue that the victim's sepsis was not causally related to the attempted robbery. Defendant also contended that his trial counsel was ineffective because he failed to challenge the sufficiency of the grand jury indictment, which “omitted essential elements of the charges.” On June 8, 2011, the trial court dismissed the petition on the grounds that the petition was submitted without a notarized affidavit and that the petition was frivolous and patently without merit. Defendant timely appealed.

¶ 12 ANALYSIS

¶ 13 Defendant contends that the trial court erred in dismissing his petition at the first stage, because the petition sufficiently alleged that appellate counsel was ineffective for not challenging the State's causation evidence and for not arguing that the 2007 indictment should have been dismissed because it charged offenses subject to compulsory joinder with the 2005 indictment and violated defendant's right to a speedy trial. The Act provides a method for a criminal defendant to assert that his or her conviction was the result of “a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.” 725 ILCS 5/122–1(a)(1) (West 2010); see People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). A defendant commences proceedings under the Act by filing a petition in the circuit court in which the original proceeding occurred. Hodges, 234 Ill.2d at 9, 332 Ill.Dec. 318, 912 N.E.2d 1204. The Act provides for three stages of proceedings. Hodges, 234 Ill.2d at 10, 332 Ill.Dec. 318, 912 N.E.2d 1204. At the first stage, the trial court shall dismiss the petition in a written order if it determines that the petition is frivolous or is patently without merit. Hodges, 234 Ill.2d at 10, 332 Ill.Dec. 318, 912 N.E.2d 1204. If the petition progresses to the second stage, counsel may be appointed for an indigent defendant, and the State may answer or move to dismiss. 725 ILCS 5/122–4, 122–5 (West 2010). If the defendant makes a “substantial showing” [368 Ill.Dec. 767]

[985 N.E.2d 574]

of a constitutional violation at the second stage, then the petition proceeds to a third-stage evidentiary hearing. 725 ILCS 5/122–6 (West 2010). We review de novo the dismissal of a postconviction petition without an evidentiary hearing. People v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 13, 360 Ill.Dec. 417, 968 N.E.2d 1170.

¶ 14 Here, the trial court dismissed defendant's petition at the first stage. One of the bases for the dismissal was that the affidavit verifying the petition was not notarized. The State argues that we may affirm on this basis. Defendant asserts that our decision in People v. Turner, 2012 IL App (2d) 100819, ¶ 47, 362 Ill.Dec. 172, 972 N.E.2d 1205, precludes affirmance on this ground. In People v. Carr, 407 Ill.App.3d 513, 348 Ill.Dec. 618, 944 N.E.2d 859 (2011), this court held that the defendant's failure to have the affidavit verifying his postconviction petition notarized...