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People v. Cabrera

December 12, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM CABRERA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 89-CF-665 Honorable Rodney Lechwar, Judge, Presiding

The opinion of the court was delivered by: Presiding Justice Homer

PUBLISHED

The defendant, William Cabrera, was convicted of first degree murder and was sentenced to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2). His sentence was ordered to be served consecutively with a previous sentence. The defendant's conviction and sentence were affirmed by this court on direct appeal. People v. Cabrera, No. 3--95--0148 (1998) (unpublished order under Supreme Court Rule 23). Subsequently, the defendant filed a post-conviction petition, which the State moved to dismiss. The court granted a partial dismissal of his petition and held an evidentiary hearing on the remaining portion. After the hearing, the court dismissed his petition. On appeal, the defendant argues that: (1) his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (2) he was denied due process when Illinois Department of Corrections (DOC) personnel coerced an exculpatory witness not to testify; and (3) the court should have held an evidentiary hearing on the dismissed portion of his petition, which alleged that his trial attorneys were ineffective for failing to call two exculpatory witnesses. We affirm in part, reverse in part and remand for further proceedings.

BACKGROUND

The defendant was charged by indictment with the first degree murder of Lawrence Kush, a DOC correctional officer. The indictment alleged that Salvatore Giancana, David Starks, and the defendant caused the death of Kush at the Stateville Correctional Center by beating him about the head and body with pipes.

According to testimony at trial, the defendant was a member of the Latin Kings street gang. The defendant held the high-ranking position of "nation enforcer" within the Latin Kings "nation." He was responsible for enforcing the rules or "laws" for the entire "nation."

Officer Kush was known to be very thorough when conducting "shakedowns" of prison cells at Stateville to find contraband such as drugs, makeshift weapons, and money. During one of these "shakedowns," the other correctional officer, who was conducting the "shakedown" with Kush, overheard inmate Gino Colon say that both Kush and the other officer were going to get what was coming to them. Colon was one of the two highest-ranking members of the Latin Kings "nation."

Testimony at trial indicated that Colon ordered a "hit" on Kush because his "shakedowns" were interfering with the Latin Kings' drug business. The State presented evidence that the defendant was in charge of enforcing the "hit" on Kush, and that he directed Starks and Giancana to carry out the "hit."

On July 1, 1989, Starks and Giancana put on prison jumpsuits, gloves, and stocking caps with holes cut in them such that the stocking caps looked like ski masks. Starks and Giancana ambushed Kush and beat him about the head and body with pipes. When other prisoners and prison officials discovered Kush and came to his assistance, he was vomiting and bleeding from the top of his head. By the time Kush arrived at the hospital, he was brain dead from the injuries he sustained in this beating. The pipes, jumpsuits, gloves, and ski masks used by Starks and Giancana were later recovered by investigators on the prison grounds.

At the conclusion of the defendant's trial, the jury found him guilty of first degree murder. Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2). During the death penalty phase, the jury directed the court not to impose the death penalty.

At the sentencing hearing, the trial judge considered whether the defendant was eligible for a natural life sentence. First, the judge considered the discretionary factors whereby the court could impose a natural life sentence for this defendant. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(b). The judge stated that he did not find that the murder was accompanied by exceptionally brutal or heinous behavior. The judge did, however, consider several aggravating factors listed in subsection (b) of section 9--1 of the Criminal Code of 1961 (Criminal Code). Ill. Rev. Stat. 1989, ch. 38, par. 9--1(b). The judge noted that a natural life sentence could be imposed because the murdered individual was an employee of the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 9--1(b)(2). The judge also noted the possible involvement of aggravating factors listed in subsections (8), (9), and (10). Ill. Rev. Stat. 1989, ch. 38, pars. 9--1(b)(8),(b)(9),(b)(10).

Next, the judge found that the defendant previously had been convicted of first degree murder in another state. The judge concluded that "whether it is mandatory or whether it is discretionary, I am exercising my discretion to sentence this defendant and he is hereby sentenced to a term of natural life." See Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(c).

The judge further stated that the defendant's sentence was to be served consecutively to his prior sentence. He stated that a consecutive sentence was mandatory under section 5--8--4(f) of the Unified Code of Corrections (Code of Corrections), because the defendant was committed to the DOC at the time he committed the instant offense. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--4(f).

Prior to this court's decision on his direct appeal, the defendant submitted a pro se post-conviction petition, which later was amended by court-appointed counsel. In his amended petition, the defendant alleged that (1) his trial attorneys were ineffective because, contrary to his request, his attorneys refused to call David Starks and Wilfredo Rosario, who were exculpatory witnesses, and (2) he was denied due process because DOC personnel intimidated Brian Nelson such that he refused to testify for the defense.

The State moved to dismiss his amended petition at the second stage of post-conviction proceedings. The court dismissed that portion of his petition concerning Starks and Rosario, but allowed the petition to proceed to an evidentiary hearing on his allegations regarding Brian Nelson. After the ...


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