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12/04/97 PEOPLE STATE ILLINOIS v. JUAN CABALLERO

December 4, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JUAN CABALLERO, APPELLANT.



Appeal from the Circuit Court, Cook County. CASE NUMBERS: TR79I19862. TRIAL JUDGE: Hon. Colleen McSweeney Moore.

The Honorable Justice Harrison delivered the opinion of the court. Justice Bilandic, dissenting. Justices Miller And Heiple join in this dissent.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

Defendant, Juan Caballero, appeals from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his petition for post-conviction relief (725 ILCS SCAN 5/122--1 et seq. (West 1992)) and relief from judgment (735 ILCS 5/2--1401 (West 1992)). Because defendant was sentenced to death for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).

Early on the morning of February 25, 1979, the bodies of three teenage males, Michael Salcido, Arthur Salcido, and Frank Mussa, were discovered in a car in a Chicago alley. In 1980, a jury found defendant guilty on charges of murder, unlawful restraint, and armed violence with respect to each of the three victims. On direct appeal, this court affirmed defendant's convictions and death sentence. People v. Caballero, 102 Ill. 2d 23, 79 Ill. Dec. 625, 464 N.E.2d 223 (1984).

Defendant filed a petition for post-conviction relief alleging, inter alia, that he was denied effective assistance of counsel at his capital sentencing hearing. The circuit court dismissed the petition without an evidentiary hearing. On appeal, this court held that the allegations made a substantial showing of constitutional rights deprivation and remanded the cause for an evidentiary hearing. People v. Caballero, 126 Ill. 2d 248, 128 Ill. Dec. 1, 533 N.E.2d 1089 (1989). After a hearing, the circuit court denied defendant post-conviction relief based on ineffective assistance of counsel at sentencing and this court affirmed. People v. Caballero, 152 Ill. 2d 347, 178 Ill. Dec. 390, 604 N.E.2d 913 (1992).

On October 29, 1993, defendant filed a petition for post-conviction relief and relief from judgment based on the unconstitutional disparity of his death sentence, and later amended the petition to include violation of his due process right to "reverse-Witherspoon," or "life qualify," the jury. The State moved to dismiss defendant's petition. On May 29, 1996, after oral argument on the State's motion, the circuit court dismissed the petition and this appeal followed. The facts of this case are adequately set forth in our opinion on defendant's direct appeal and will not be repeated here.

Initially, we note that while defendant alternatively argues that he is entitled to relief from judgment pursuant to section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 1992)), where a section 2-1401 petition is filed beyond two years after the judgment was entered, it cannot be considered. 735 ILCS 5/2-1401(c) (West 1992); see also People v. Logan, 49 Ill. App. 3d 787, 790, 7 Ill. Dec. 552, 364 N.E.2d 713 (1977), aff'd, 72 Ill. 2d 358, 21 Ill. Dec. 186, 381 N.E.2d 264 (1978). This court has held that the two-year limitation mandated by section 2-1401 and its predecessor, section 72 (Ill. Rev. Stat. 1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing that the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed. Crowell v. Bilandic, 81 Ill. 2d 422, 427, 44 Ill. Dec. 110, 411 N.E.2d 16 (1980); People v. Berland, 74 Ill. 2d 286, 317, 24 Ill. Dec. 508, 385 N.E.2d 649 (1978). Moreover, the fact that a post-judgment motion or an appeal may be pending does not serve to toll the period of limitation. See Sidwell v. Sidwell, 127 Ill. App. 3d 169, 174, 82 Ill. Dec. 138, 468 N.E.2d 200 (1984).

Defendant's section 2--1401 petition was filed 13 years after the judgment of conviction was entered and sentence imposed in 1980, and he does not contend that any of the grounds for tolling the limitations period exist. Therefore, section 2--1401 is not available as a remedy. Although the circuit court did not state its reasoning for dismissing that portion of defendant's petition, we may affirm for any reason warranted by the record, regardless of the reasons relied on by the lower court. People v. Nash, 173 Ill. 2d 423, 432, 220 Ill. Dec. 154, 672 N.E.2d 1166 (1996).

The State contends that the circuit court also properly dismissed defendant's petition for post-conviction relief because, as his second, it is procedurally barred. It is true that the Post-Conviction Hearing Act (Act) contemplates the filing of only one petition, and "a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition." People v. Free, 122 Ill. 2d 367, 375-76, 119 Ill. Dec. 325, 522 N.E.2d 1184 (1988); accord People v. Flores, 153 Ill. 2d 264, 273-74, 180 Ill. Dec. 1, 606 N.E.2d 1078 (1992).

"The filing of successive post-conviction petitions sets up two competing interests. On the one hand, there is the State's interest in providing a forum for the vindication of the petitioner's constitutional rights. On the other hand, the State has a legitimate interest in the finality of criminal litigation and judgments. ***

***

Where, however, the claimed error is one which could not have been presented in an earlier proceeding, procedural bars may be ineffectual in bringing about that finality which ordinarily follows direct appeal and the first post-conviction proceeding. In such cases, there is the potential that a second or ...


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