People v. Montijo
| Decision Date | 08 February 2018 |
| Docket Number | NO. 5-14-0538,5-14-0538 |
| Citation | 2018 IL App (5th) 140538 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT J. MONTIJO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
Decision filed 02/08/18. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
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 Jackson County.
¶ 1 Held: The trial court's summary dismissal of the defendant's petition for postconviction relief is affirmed where he failed to set forth the gist of a constitutional claim that the court denied him the right to counsel of choice by denying his request for a continuance or that his counsel on direct appeal was ineffective for failing to challenge the court's dismissal of his pro se motion to reduce sentence.
¶ 2 The defendant, Robert J. Montijo, appeals from the trial court's summary dismissal of his pro se petition for postconviction relief. For the reasons that follow, we affirm.
¶ 4 In August 2010, the defendant was arrested on a charge of home invasion (720 ILCS 5/12-11(a)(3) (West 2010)); the Jackson County public defender was appointed to represent him; and the State obtained an order requiring him to provide samples of his hair, blood, and saliva pursuant to Illinois Supreme Court Rule 413(a)(vii) (eff. July 1, 1982). In September 2010, after the defendant refused to provide the Carbondale Police Department with a buccal swab for DNA comparison purposes, the trial court found him in indirect civil contempt. See People v. Henne, 11 Ill. App. 3d 405, 406-07 (1973). The record indicates that appointed counsel was present when the defendant refused to provide the swab.
¶ 5 In October 2010, referencing the defendant's failure to cooperate with the Carbondale Police Department's efforts to obtain a buccal swab sample of his DNA, the State filed a petition requesting authorization for the department's use of reasonable force to obtain a sample. At a subsequent hearing on the petition, appointed counsel advised the court that the defendant believed that the Carbondale Police Department was biased against him and that "he would ask that the Illinois State Police be the ones to take the sample." Suggesting that the defendant was being unnecessarily difficult over a simple and routine procedure that merely required him to "open [his] mouth" so that a "cotton swab [could be] placed inside," the court ordered the defendant to provide the Carbondale Police Department with a buccal swab and authorized the department's use of reasonable force to obtain the same. The court further stated that it did not "want to hear any other complaints about this." Appointed counsel then stated, "[T]he defendant would like toask that this matter of the swab be continued until he can hire a private attorney that could be present at such time." Without elaboration or additional inquiry, the trial court denied the defendant's request. Thereafter, the defendant provided the Carbondale Police Department with a buccal swab, and no further mention of private counsel was ever made.
¶ 6 In January 2011, a Jackson County jury found the defendant guilty as charged. At trial, the State's evidence established that after the defendant and a cohort forced entry into a Carbondale apartment shortly before 6 a.m. on May 4, 2010, the defendant, whose face was concealed with a blue bandana, brandished an automatic pistol and demanded money from the apartment's two residents. The defendant then took between $200 and $300 that one of the residents had stored in a notebook. When subsequently fleeing the scene, the defendant dropped the bandana that he had been wearing on the sidewalk in front of the apartment building. The defendant's DNA was later found on the bandana, and a fingerprint matched to the defendant was found inside the victims' apartment. At trial, the defendant's girlfriend, Syrena Payne, provided him with an alibi, but the jury rejected her claim that he was at her house when the crime occurred. We note that the defendant was 28 years old at the time of the offense and that the cause proceeded to sentencing on April 14, 2011.
¶ 7 At the defendant's sentencing hearing, the State advised that while home invasion is generally a Class X felony with a sentencing range of 6 to 30 years, the fact that the defendant committed the offense while armed with a firearm mandated that 15 years be added to whatever sentence the trial court imposed. See 720 ILCS 5/12-11(a)(3), (c)(West 2010); 730 ILCS 5/5-4.5-25(a) (West 2010). Arguing, among other things, that the defendant had a significant criminal history, the State maintained that a sentence totaling 30 years would be appropriate under the circumstances. The State noted that despite his "relatively young" age, the defendant had already been to prison on three previous occasions and had been given multiple prior opportunities "to turn away from his criminal ways." We note that the defendant's presentence investigation report summarized his criminal history as follows:
¶ 8 In response, emphasizing that neither of the victims had been physically harmed by the defendant's conduct in the present case, defense counsel asked the court to impose the minimum sentence of 21 years. Describing the home invasion as "a planned attack," the court ultimately sentenced the defendant to 25. The court found that the defendant's conduct had threatened serious harm, that he had a history of prior criminal activity, and that there was "a necessity for deterrence." See 730 ILCS 5/5-5-3.2(a)(1), (3), (7) (West2010). Referencing the defendant's presentence investigation report, the court characterized the defendant's prior criminal history as "self-explanatory."
¶ 9 On May 5, 2011, defense counsel filed a timely notice of appeal pursuant to Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). On May 9, 2011, while incarcerated at the Western Illinois Correctional Center in Mt. Sterling, the defendant mailed the trial court a pro se motion to reduce sentence, which the court did not receive as filed until May 24. The defendant's pro se motion alleged that the 25-year sentence that he received was excessive given that he did not have "an extensive criminal history," that he had "no violence in [his] background," and that he was "innocent." The trial court subsequently denied the motion as untimely, finding that it had not been filed within 30 days following the imposition of the defendant's sentence. See 730 ILCS 5/5-4.5-50(d) (West 2010).
¶ 10 On May 11, 2011, the trial court entered an order appointing the Office of the State Appellate Defender to represent the defendant on direct appeal. In January 2014, the defendant's conviction was affirmed on direct appeal. See People v. Montijo, 2014 IL App (5th) 110212-U.
¶ 11 In September 2014, the defendant filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). The defendant's petition set forth numerous allegations of error, including a claim that the trial court had arbitrarily denied his pretrial request for a continuance so that he could hire a private attorney without first inquiring into his reasons for making the request. The defendant maintained that the trial court had thereby denied him his right tocounsel of choice. Attached as an exhibit to the petition was an affidavit from Maria Hart, who claimed that she was the defendant's girlfriend and had been in "almost daily contact" with him prior to his trial. She further claimed that the defendant and his appointed attorney had been experiencing serious problems when the defendant had requested the opportunity to obtain private counsel and that she had been "trying to get loans of money to hire a private attorney."
¶ 12 Referencing the "mailbox rule" (People v. Maiden, 2013 IL App (2d) 120016, ¶ 13), the defendant's petition also alleged that appointed counsel on direct appeal had been ineffective for failing to argue that the trial court should not have dismissed his pro se motion to reduce sentence as untimely, despite assuring him that the issue would be raised. Attached as an exhibit to the petition was a copy of an April 6, 2012, letter from the defendant's direct appeal counsel indicating that she would raise the dismissal issue in a motion for summary relief asking that the cause be remanded so that the trial court could consider the pro se motion.
¶ 13 The trial court subsequently entered an order summarily dismissing the defendant's postconviction petition as frivolous and patently without merit. In October 2014, the defendant filed a timely notice of appeal.
¶ 15 The defendant contends that the trial court erred in summarily dismissing his petition for postconviction relief because it set forth two meritorious claims, i.e., that the trial court improperly denied his request...
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