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People v. Nunez

September 28, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JESUS B. NUNEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 97--CF--1012 Honorable Thomas A. Schermerhorn, Sr., Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

UNPUBLISHED

Defendant, Jesus B. Nunez, appeals from the judgment of the circuit court of McHenry County, dismissing his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)). Defendant argues on appeal that the trial court erred in summarily dismissing his petition, which alleged the ineffective assistance of trial and appellate counsel in violation of his federal and state constitutional rights. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §2. More specifically, defendant claims that he was denied the effective assistance of trial counsel because his attorney failed to make a pretrial challenge to the admission of audio and video recordings obtained pursuant to an order for a consensual overhear. Defendant further argues that appellate counsel was ineffective for failing to raise trial counsel's error on direct appeal. For the reasons that follow, we reverse the judgment of the circuit court and remand the cause for an evidentiary hearing.

BACKGROUND

On August 28, 1997, defendant was indicted for unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(2)(D) (West 1996)) and criminal drug conspiracy (720 ILCS 570/405.1 (West 1996)). At defendant's bench trial, the State's principal witness was Steven Schalk. Prior to defendant's indictment, Schalk had been arrested with three kilograms of cocaine in his possession and had been charged with unlawful possession of a controlled substance with intent to deliver. Following his arrest, Schalk spoke with agents of the North Central Narcotics Task Force (Task Force) and agreed to become a confidential informant working under the name of "Tim Seymour." The Task Force devised a "reverse buy" sting operation under which Schalk would "sell" large amounts of a controlled substance to individuals believed to be trafficking illegal drugs. Defendant's son was identified as one of the targets of the sting. However, Schalk testified that, upon learning that defendant's son was in jail, Task Force agents told him to pursue defendant.

As part of the sting operation, Cindy Schultz, then a Task Force agent, filed a "Petition for Order Authorizing Use of Eavesdropping Device" (petition) pursuant to section 108A--3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/108A-3 (West 1996)). The petition identified "Tim Seymour" as the party to the expected conversation consenting to the use of the eavesdropping device. Attached to the petition was the State's Attorney's authorization for a petition and order approving the use of an eavesdropping device and an affidavit signed by Schultz. Schultz's affidavit indicated that Tim Seymour agreed to participate in the sting operation. Also attached to the petition was a document signed by Tim Seymour consenting to be subject to electronic surveillance. Based on Schultz's petition, a judge issued an order (consensual overhear order) authorizing the use of an eavesdropping device for the purpose of overhearing and recording conversations between Tim Seymour and others.

Early in August 1997, Schalk and defendant had several conversations discussing matters related to the sale. A number of these conversations were recorded pursuant to the consensual overhear order. Eventually, defendant and Schalk agreed to meet at Schalk's apartment, at which time a third party, later identified as Christopher Adams, would purchase a kilogram of cocaine. In reality, the Task Force had rented the apartment and equipped it with hidden video equipment. Once inside the apartment, Adams handed Schalk an undisclosed amount of cash. Schalk then retrieved the cocaine and handed it to defendant. Defendant held the cocaine briefly before placing it on a table. As Adams continued to count some other monies, defendant again picked up the package and held it for a few seconds. A loud noise then came from somewhere inside the apartment. Defendant placed the package on the table and looked for the source of the noise. Within seconds, Task Force agents entered the room and arrested defendant and Adams.

Defendant's bench trial commenced on March 17, 1998. In addition to Schalk, a forensic chemist, Schultz, and three other Task Force agents testified at defendant's trial. During Schalk's testimony, the State attempted to play the audio tapes and the videotape obtained pursuant to the consensual overhear order. Defense counsel moved to suppress the recordings, arguing that the documents submitted to obtain the consensual overhear order identified the party consenting to the use of the eavesdropping device as "Tim Seymour," rather than Schalk. Defendant claimed that the Task Force was untruthful by failing to identify the true party consenting to electronic surveillance. The motion further alleged that the petition violated section 108A--3 of the Code by failing to include the identity of the party consenting to the use of an eavesdropping device. The State, however, contended that prior to trial it (1) provided defendant with discovery materials indicating that Schalk was the confidential informant and (2) defense counsel was given the opportunity to meet with Schalk. Thus, the State argued that defendant's motion was untimely. The trial court denied the motion to suppress without an evidentiary hearing. The court noted that defendant was not surprised by the fact that Schalk was the confidential informant. Accordingly, the audio tapes and the videotape were presented at defendant's trial.

The trial court found defendant guilty of unlawful possession of a controlled substance with intent to deliver. Defendant was sentenced to 24 years' imprisonment and ordered to pay a fine of $25,000. Defendant filed a motion for a new trial, which the trial court denied. On direct appeal, defendant was represented by the same law firm. Among the issues raised by appellate counsel was that the trial court erred in refusing to address and decide his motion to suppress the audio and video recordings. We held that the trial court did not abuse its discretion in denying defendant's motion to suppress without an evidentiary hearing. We explained that defendant's motion was untimely because defendant was aware of the true identity of the informant at least two months prior to trial. Accordingly, we affirmed defendant's conviction and sentence (People v. Nunez, No. 2--98--0812 (1999) (unpublished order under Supreme Court Rule 23)). Subsequently, our supreme court denied defendant's petition for leave to appeal (People v. Nunez, 188 Ill. 2d 577 (2000)).

Defendant then obtained new counsel, and, on May 2, 2000, he filed his petition for post-conviction relief. Defendant argued that he was denied the effective assistance of trial counsel because his attorney failed to make a pretrial challenge to the admission of the audio and video recordings obtained through the consensual overhear order. In addition, defendant argued that appellate counsel was ineffective for failing to raise trial counsel's error on appeal. The trial court found that defendant's petition was patently without merit and dismissed it without an evidentiary hearing. This appeal ensued.

DISCUSSION

Defendant claims that he was entitled to an evidentiary hearing to assess the validity of his claim that he was denied the effective assistance of trial and appellate counsel.

As a preliminary matter, we note that post-conviction petitions are reserved for constitutional issues that have not been, and could not have been, previously adjudicated. People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). Thus, as a general rule, all issues that could have been presented on direct appeal, but were not, are deemed waived for purposes of post-conviction review. People v. Page, 193 Ill. 2d 120, 130 (2000). The waiver rule is relaxed, however, where (1) fundamental fairness so requires, (2) the alleged waiver stems from the incompetence of appellate counsel, or (3) the facts relating to the claim do not appear on the face of the original appellate record. People v. Hobley, 182 Ill. 2d 404, 428 (1998). In this case, defendant argues ineffective assistance of trial and appellate counsel. Accordingly, any waiver stemmed from the actions of appellate counsel, and we will address the issues raised by defendant.

Of course, unless trial counsel's performance is found to be ineffective, defendant has suffered no prejudice from appellate counsel's failure to challenge trial counsel's competency. See People v. Towns, 182 Ill. 2d 491, 523 (1998). Moreover, in the instant case, the record reveals that the same law firm represented defendant at trial and on direct appeal. Under these circumstances, it would be unreasonable to expect appellate counsel to raise and argue his own incompetency. People v. Gaines, 105 Ill. 2d 79, 91 (1984). Accordingly, we need only address whether counsel's performance at trial was deficient.

The Act provides a collateral remedy by which criminal defendants may challenge their convictions or sentences for violations of federal or state constitutional law. People v. Barrow, 195 Ill. 2d 506, 518-19 (2001). However, a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. Barrow, 195 Ill. 2d at 519. Instead, an evidentiary hearing is warranted only when the allegations of the post-conviction petition, supported when necessary by the trial court record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. People v. Haynes, 192 Ill. 2d 437, 465 (2000); Towns, 182 Ill. 2d at 503. In a post-conviction proceeding, the defendant bears the burden of proving that a substantial constitutional violation occurred (People v. Mahaffey, 194 Ill. 2d 154, 170 (2000)), and all well-pleaded facts in the petition are to be taken as true (People v. Caballero, 126 Ill. 2d 248, 259 (1989)). The dismissal of a post-conviction petition without an evidentiary hearing is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).

Defendant asserts that he was denied the effective assistance of trial counsel because his attorney failed to file a pretrial motion to suppress the audio tapes and the videotape obtained pursuant to the consensual overhear order. As grounds for suppression, defendant claims that the consensual overhear order was improperly obtained because it failed to name the true identity of the party to the expected conversation consenting to the use of the eavesdropping device. According to defendant, trial counsel was aware well before trial that Schalk worked as a confidential informant for the Task Force under the name of "Tim Seymour." Yet, trial counsel did not move to suppress the recordings obtained pursuant to the consensual overhear order until after Schalk began testifying. Defendant notes that section 108A--3 of the Code is to be strictly construed (People v. Monoson, 75 Ill. App. 3d 1, 6 (1979)) and that the failure to challenge improperly obtained evidence has been found to result in incompetent representation (see People v. Brinson, 80 Ill. App. 3d 388 (1980)). Defendant further asserts that there is a reasonable probability that had trial counsel timely challenged the recordings, they would have been suppressed and the outcome of the trial would have been different.

In response, the State argues that defendant is unable to show that he was prejudiced by trial counsel's failure to timely file the motion to suppress. More specifically, the State contends that, even had trial counsel had the opportunity to argue the merits of the motion to suppress, defendant would not have prevailed. The State further asserts that, assuming defendant had prevailed on his motion to suppress the audio and video recordings, ...


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