APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 97 CR 4489 THE HONORABLE MICHAEL P. TOOMIN, JUDGE PRESIDING.
The opinion of the court was delivered by: Presiding Justice Cousins
This is a consolidated direct appeal and post-conviction appeal. The State charged defendant, Mantrell Johnson, with the aggravated vehicular hijacking and armed robbery of Jose Valadez. Following a jury trial, the trier of fact found defendant guilty of aggravated vehicular hijacking (720 ILCS 5/18-4(a)(3) (West 1996)) and armed robbery (720 ILCS 5/18-2 (West 1996)). For sentencing purposes, the trial court merged defendant's armed robbery conviction with his aggravated vehicular hijacking conviction and sentenced him to 10 years' imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that: (1) his conviction for armed robbery based on the taking of the automobile title must be reversed because no force was threatened or used; (2) his 10-year sentence for aggravated vehicular hijacking was excessive; and (3) his post-conviction counsel failed to adequately represent him and, thus, the resulting dismissal of his petition must be reversed and remanded for further proceedings.
For the following reasons, we reverse defendant's armed robbery conviction, remand for resentencing his aggravated vehicular hijacking sentence, and affirm the dismissal of his post-conviction petition.
The complaining witness, Jose Valadez, testified that he owned a black, four-door Chevy Caprice in which he placed a "For Sale" sign. On November 23, 1996, defendant went to Valadez's house, inquired about the car, and took it on a test drive while Valadez sat on the passenger's side. After they returned from the test drive, the two men negotiated and agreed upon a price for the car. Defendant told Valadez that he would return with the money and Valadez went back into his home.
Approximately two hours later, defendant returned to Valadez's home with a friend who was later identified as Antwan. Defendant told Valadez that Antwan was a mechanic who wanted to take the car on another test drive. Antwan drove as Valadez sat on the front passenger's side. Defendant was sitting behind Valadez. During the drive, defendant asked Valadez if he could see the car's title. Valadez handed the title to defendant. Valadez had already signed the title but did not date it because he was not sure that defendant was going to make the purchase.
Valadez further testified that defendant told him that he did not have the full purchase amount and that he would have to go to a relative's home. Antwan drove to a house. Defendant alighted from the vehicle and later returned holding a paper bag. Defendant was also accompanied by another man. Defendant and the individual got into the car and Antwan continued to drive. Defendant still had Valadez's title but had not given Valadez any money.
Valadez told defendant that they needed to close the deal because he had company waiting for him at his home and that he wanted to return. Antwan continued to drive in the opposite direction and stopped alongside some railroad tracks. Defendant exited the car, walked over to where Valadez was seated, asked Valadez for his wallet, ordered him to get out of the car, and told Valadez to walk away as he pointed a black revolver at Valadez's head. Valadez got out of the car and started to walk away. Defendant got back into the car and Antwan drove away. Valadez walked home, picked up an emissions control document for his car, went to the police station, and filed a report.
Officer Palukaitis testified that on January 24, 1997, he and his partner drove to the 7700 block of South Saint Louis Street after receiving information that a stolen vehicle could be located there. The description given was that of a black Chevy with an orange vehicle registration sticker affixed to the rear window.
When the two officers arrived at the location, they saw the subject automobile. Palukaitis exited his vehicle, retrieved the vehicle identification number from the black Chevy, and transmitted the information to a dispatch center. The officers then drove around while they waited for information about the car. When they finally learned that the car had been taken in an armed robbery on November 26, 1996, they went back to the area but the car was gone.
The next day, January 25, 1997, Palukaitis, his partner, and two other officers surveilled the area. Twenty minutes later, Palukaitis observed the subject vehicle as someone inside of it parked it at approximately 7733 South Saint Louis Street. The person who had driven the car, later identified as defendant, exited the car and entered a building located at 7731 South Saint Louis Street. Palukaitis and his partner drove to the house, exited their vehicle, and knocked on the door.
Defendant's stepfather permitted the officers to enter his home after Palukaitis explained the purpose of his visit. Defendant told Palukaitis that the car could not have been stolen because he had the title to the car. Palukaitis knew that the title had been taken in an armed robbery, so he retrieved the title, asked defendant to step out of the house, and transported him to the police station where Valadez identified him as the person who had robbed him.
Assistant State's Attorney Keri Mason (ASA Mason) testified that on January 25, 1997, she interviewed defendant after giving him his Miranda rights. A youth officer and a detective were also present. Defendant told ASA Mason that he took the title to a man's car, robbed a male individual at gunpoint, and then stole his car. ASA Mason wrote down defendant's statement, which defendant later signed. When she showed him a copy of the victim's driver's license, defendant recognized Valadez as the person whom he had robbed.
ASA Mason published defendant's statement to the jury: Defendant stated that, on November 23, 1996, he went to Jose Valadez's house to talk about the "For Sale" sign that he had seen in Valadez's 1985 Caprice. Valadez allowed defendant to test drive the car while Valadez was in the car. After the test drive, defendant drove them back to Valadez's house, parked the car, and told Valadez that he would return in a few days with the agreed-upon $900 price. Defendant went home, called his friend named Antwan, and told him about the car. Defendant spoke to Antwan about stealing the car. He and Antwan talked about how they could get a gun and pull it out on Valadez when they got out of the car. Defendant and Antwan met at 6:30 p.m. on November 23, 1996. Antwan got the gun and the two went to Valadez's house. They asked Valadez if they could test drive the car. The three men got in the car. Antwan drove because he told Valadez that he wanted to buy the car also. Valadez was sitting in the front passenger's side and defendant was sitting behind Valadez. As they were driving, defendant asked Valadez to give him the title so that he could peruse it. Valadez gave the title to him. Defendant kept it and signed his name in the "assignment of title" section to show that it was legally his although he knew that it was not. Defendant never had money to buy Valadez's car and Valadez did not give him consent to take the car and keep it. Defendant stole the car because he liked it. Antwan stopped the car around 63rd and Bell Street. Valadez asked why they were stopping and defendant told him because he needed to get more money. Defendant opened the door to where Valadez was sitting and told him to get out of the car as he pulled a gun out and held it by his side. Valadez looked at the gun, got a scared look on his face, and quickly walked away. Antwan sped away after defendant got back into the car. They went to Valadez's house to pick up the car in which they drove to Valadez's house. Antwan drove Valadez's car to defendant's house and defendant took Antwan home after he gave the gun to Antwan.
At the close of the State's case, the defense moved for a directed verdict, which the trial court denied.
Defendant testified that on November 26, 1996, he owned and operated a black Caprice that he had acquired from an acquaintance named Antwan. He had seen Antwan driving the car, which had a "For Sale" sign in it, flagged him down, and asked him the price. Antwan told defendant that the price was $600 of which defendant paid him $300. He had agreed to pay the balance at a later date but never did. Antwan gave defendant the title to the car and told him to sign it. Defendant did not notice whether someone else's name was on the title. An orange sticker was affixed to the window of the car when defendant purchased the car from Antwan. Defendant test drove the car with Antwan. He never test drove the car with Valadez, went by ...