People v. Ocon

• Decision Date: 21 February 2014
• Docket Number: No. 1–12–0912.,1–12–0912.
• Citation: 379 Ill.Dec. 616,7 N.E.3d 42,2014 IL App (1st) 120912
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Juan OCON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 120912

7 N.E.3d 42

379 Ill.Dec. 616

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

v.Juan OCON, Defendant–Appellant.

No. 1–12–0912.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 21, 2014.

Michael J. Pelletier, Alan D. Goldberg, Alison L.S. Shah, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michele Grimaldi Stein, Iris G. Ferosie, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant Juan Ocon appeals the trial court's sua sponte dismissal of his pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2010)). Defendant argues that the case must be remanded because the trial court's dismissal was premature since the State was not properly served with defendant's petition.

¶ 2 Following a February 2002 jury trial, defendant was found guilty of one count of first degree murder and one count of attempt first degree murder. We will discuss the facts as necessary for the issues raised on appeal. For a more detailed discussion of these facts, see People v. Ocon, No. 1–02–1567, 344 Ill.App.3d 1215, 307 Ill.Dec. 317, 859 N.E.2d 317 (Dec. 15, 2003) (unpublished order under to Supreme Court Rule 23).

¶ 3 The evidence presented at trial established that on the evening of January 8, 2000, Dauntrez Snowden went out with his friends Nicholas Mobley, William Peppers and Delbert Guy. The men were in a maroon compact car. Snowden was driving while Peppers was in the passenger seat, Mobley was sitting in the backseat on the driver's side and Guy was seated in the backseat behind the passenger. The men had gone out to celebrate Peppers' departure for college the next day.

¶ 4 That same night, at about 10:30 p.m., William Solis and David Neira, who had been driving around for several hours, met up with some acquaintances in a van. Solis and Neira climbed into the van. The driver was Jose Vidaurri, a member of the Satan Disciples street gang. There were several passengers in the van, including defendant, Alvero Vera, Benjamin Pienero, and Francisco Rodriguez. Defendant, a member of the Latin Jivers street gang, was in the passenger seat and Rodriguez and Pienero were in the middle-row captain's chairs while Solis, Vera and Neira were seated on the back bench. The van belonged to Rodriguez. At the time, the Satan Disciples and the Latin Jivers “were friendly gangs towards each other.”

¶ 5 At approximately 12:15 a.m., the van pulled up beside Snowden's car near Erie and Paulina Streets. The van was “an American made, Chevy or Ford, dark brown, appeared to be tan, light brown stripes, had running boards, maybe like a ladder or tire rack on the back.” Mobley and Guy saw a male Hispanic step out on the running board and make gestures toward the car. According to Solis, defendant started “throwing up gang signs” in the direction of the car. No one in the car made any response to the gestures.

¶ 6 Snowden drove away from the van, but it followed the car. Defendant encouraged Vidaurri to keep up the chase. Snowden told Peppers to get the cellular phone from beneath the seat and call the police. On Jackson Street, the van approached the car at a high rate of speed. Defendant fired several shots from the passenger window, and Vera opened the sliding door of the van and also fired several shots at the maroon car. Vidaurri kept driving and drove to an alley where the men left the van. The guns were abandoned in the van.

¶ 7 Snowden and Mobley were hit by the gunfire. Mobley was shot in the left leg and right foot. Snowden was shot in the stomach and began to lose control of the car. At some point, the car and the van collided, ripping one of the mirrors from the car. Peppers threw the car in park. Chicago police officers saw the victims' car roll through a red light and come to a stop. The officers called paramedics to the scene. Mobley and Snowden were transported to Cook County Hospital for treatment. Mobley was treated and recovered, but Snowden suffered a gunshot to his abdomen and died at the hospital on January 9, 2000.

¶ 8 On January 9, 2000, at 7:30 p.m., Detective John Climack and his partner canvassed the 1300 West Jackson area. In the early morning hours of January 10, 2000, he described the van and offender to officers in Districts 12, 13, and 14. Guy and Mobley later met with the detectives working on the case to make a composite of the van and the occupant they had seen. The composites were distributed to area police officers, including Sergeant Rich Nigro, who received the original case report, a composite of the van, and a composite of a suspect.

¶ 9 At approximately 9:30 p.m., Sergeant Nigro was patrolling near Noble and Grand Streets when he saw a van that matched the description and the composite. He followed the van and curbed it after it committed a traffic violation. The area was approximately six or seven blocks from the intersection of Chicago and Ashland. He asked the driver to produce a license, but the driver was unable to do so. There were several male Hispanics in the van. Defendant was one of them and he matched the suspect composite.

¶ 10 Defendant was questioned by the police, but he initially denied knowing about the shooting. On January 13, 2000, Detective Climack advised defendant of his rights and spoke with him again. Defendant admitted his involvement in the shooting. Defendant said that on January 8, 2000, he had been riding around in the van with Rodriguez. At one point, Vidaurri joined them and started driving. Vidaurri gave defendant a black and silver 9–millimeter handgun. They pulled the van up next to a dark-colored car and defendant started throwing gang signs. The other car took off, and the van followed the car. On Jackson, they pulled up to the car again, and defendant “rolled down the window, stuck the gun out the window, and shot into the car.” Vera started to shoot from the backseat. The car bumped into the van. They drove the van to a lot on Halsted, and everyone got out. Climack showed defendant a picture of the gun, which defendant identified as the gun he used. Defendant gave a similar statement later that day to an assistant State's Attorney, but declined to have the statement memorialized.

¶ 11 The parties stipulated that a gun was recovered from 1727 West Erie. The State presented expert testimony that some of the recovered bullets and shell casings were fired from the recovered gun. Defendant's cousin testified that defendant, his girlfriend and his children were at her house on January 8, 2000, from 5 to 9:30 p.m.

¶ 12 Following deliberations, the jury found defendant guilty of the first degree murder of Snowden and the attempted first degree murder of Mobley. At the sentencing hearing, the trial court sentenced defendant to concurrent terms of 45 and 15 years in prison.

¶ 13 On direct appeal, defendant argued that: (1) the trial court erred in denying his motion to quash his arrest and suppress evidence; (2) he was not proven guilty beyond a reasonable doubt; (3) he was denied a fair trial because of multiple instances of prosecutorial misconduct during closing argument; and (4) his sentence was excessive. We affirmed defendant's convictions, but remanded for defendant to be sentenced to consecutive prison terms. See Ocon, No. 1–02–1567.

¶ 14 In September 2004, defendant filed a pro se postconviction petition, alleging multiple claims of ineffective assistance of trial counsel. In October 2009, the State filed a motion to dismiss the petition, which the trial court granted. Defendant appealed the dismissal. In November 2011, the court affirmed the dismissal of defendant's postconviction petition. See People v. Ocon, 2011 IL App (1st) 100255–U, 2011 WL 7091212.

¶ 15 In December 2011, defendant filed a pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2010)). In the petition, defendant asserted that his sentences were unconstitutional because Public Act 90–592 (Pub. Act 90–592 (eff. June 19, 1998)) violated the single subject clause of the Illinois Constitution. Defendant's proof of service to the petition stated that it was placed in the prison mail system on December 7, 2011, to the clerk of the circuit court and the Cook County State's Attorney.

¶ 16 On January 10, 2012, the trial judge stated on the record that defendant had filed a section 2–1401 petition. The judge said he would review the matter and continued the case until February 14, 2012. The report of proceedings for January 10, 2012, indicates that an assistant State's Attorney was present in the courtroom at the time of those proceedings. On February 14, 2012, the trial judge sua sponte dismissed the petition in a written order, finding that section 2–1401 petition was not the proper vehicle to raise a constitutional challenge. The judge also explained that the Illinois Supreme Court had ruled in People v. Reedy, 186 Ill.2d 1, 11, 237 Ill.Dec. 74, 708 N.E.2d 1114 (1999), that Public Act 90–592 cured the defects in the truth-in-sentencing legislation from Public Act 89–404 (Pub. Act 89–404 (eff. Aug. 20, 1995)) and defendant's claim lacked merit.

¶ 17 This appeal followed.

¶ 18 On appeal, defendant argues that the trial court's dismissal of his section 2–1401 petition was premature because he failed to properly serve the State with the petition. Specifically, defendant asserts that the State was never properly served his petition because according to Supreme Court Rule 105(b), service cannot be made through regular mail. See Ill. S.Ct. R. 105(b) (eff. Jan. 1, 1989). Defendant concedes that his section 2–1401 petition lacks merit, but he continues to seek a remand on the technical notice requirement.

¶ 19 The State responds that it is unclear from...