Appeal From The Circuit Court Of Cook County Honorable Edward M. Fiala, Jr., Judge Presiding
The opinion of the court was delivered by: Justice Quinn
Following a jury trial, Mark English was convicted of attempted murder and armed robbery. English was sentenced to 25 years for the attempted murder of Officer Mashemier, 25 years for the attempted murder of Detective Wojcik, and 20 years for armed robbery, all to run concurrently. On direct appeal, this court held that English was not subject to the Illinois "truth in sentencing" law contained in Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), also known as the "Safe Neighborhoods Law," because that public act violated the single subject rule of the Illinois Constitution. People v. Cervantes, 189 Ill. 2d 80 (1999). People v. English, No. 1-97-3511, (1999) (unpublished order under Supreme Court Rule 23).
English subsequently filed a pro se petition for post-conviction relief on August 12, 1999. In that petition, English alleged his trial lawyer was ineffective for failing to investigate a witness, Dr. Hoffa, and for failing to present expert testimony that the gun defendant was carrying was inoperable at the time of the crime. The petition also alleged that his appellate lawyer was ineffective for failing to raise reasonable doubt as an issue in the direct appeal. The pro se petition for post-conviction relief was summarily dismissed as frivolous and without merit. English now appeals from the order dismissing his petition for post-conviction relief. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.
On July 14, 1997, Mark English and Thomas Jimenez were charged with two counts of attempted first degree murder of a peace officer (720 ILCS 5/8-4, 9-1 (West 1996)), one count of armed robbery (720 ILCS 5/18-2 (West 1996)), one count of robbery (720 ILCS 5/18-1(a) (West 1996)), one count of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 1996)), eight counts of aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 1996)) and eight counts of unlawful restraint (720 ILCS 5/10-3(a) (West 1996)). The two men were tried before the same jury.
The following evidence was adduced at trial. On October 5, 1995, at around 11 p.m., two armed men wearing women's nylons over their faces entered Armitage Liquors, which had a bar in the rear of the store. The taller of the two men was carrying an "Uzi" machine gun and the shorter man was carrying a shiny handgun. The two men told the people in the store to get down on the floor or they would be shot. The men took Orlando Perez, the manager, into the office. They removed his wallet, bracelet and $600 cash from his pocket. Perez was then instructed to open the safes in the office. Upon opening the smaller of the safes, it was discovered that it was empty. Perez then informed the two armed men that he did not know how to open the larger of the safes. Learning this, according to Perez, the men hit him on the head with a gun. Perez testified that he told the men that he had some money in his station wagon parked at the back. The two men then took 9 or 10 of the bar patrons into the basement. Once they were secured in the basement, the men took Perez to the back exit of the liquor store, which was a door with a lock and a metal burglar's gate behind it. When Perez opened the door, he heard people shouting, then heard gunshots. He testified he felt a bullet hit him in the right upper thigh. Perez started yelling "I'm the manager!" when he realized it was the police. He opened the door and the police entered the bar. Perez was subsequently handcuffed and taken to Illinois Masonic Hospital. At the hospital, the police showed him his chain and bracelet, which he identified as his.
Elizabeth Ramirez testified that when she went to the store, the steel gates of the store were partially closed. She looked through the window of Armitage Liquors and saw a man pointing a gun at the person behind the register. She also saw another man toward the back of the bar pointing a gun at a person on the floor. Ramirez testified that she got into a car with her friend and drove three blocks to where there were uniformed police officers. Ramirez told the officers that the liquor store was being robbed. The police put her into an unmarked police car and drove her back to the scene.
After the police got Ramirez to describe what she had seen, they approached the building. Detective Wojcik testified the front entrance was blocked by the steel shutters that were pulled down. The steel door was locked. Detective McMurray covered the building on the Kostner Avenue side, while Officer Sineni covered the front door on Armitage Street. Detective Wojcik and Officer Mashemier went around to the back and climbed a gate to get into the courtyard behind the store. Wojcik went down the external stairs leading to the basement and saw seven or eight people standing in the basement. When he came back up the stairs, the back door to the liquor store opened. Wojcik and Mashemier saw two men with nylons over their faces and guns in their hands pointed at Perez. They later identified these two men as Mark English and Thomas Jimenez. Wojcik and Mashemier testified that they identified themselves as police officers and demanded that the two men drop their guns. Wojcik and Mashemier testified that, after they announced their office, the two offenders turned their guns on them. Wojcik and Mashemier testified they both fired their weapons, Wojcik firing nine shots and Mashemier firing three shots. Perez and three of the patrons of the liquor store testified that they did not hear identifications or warnings before hearing shots fired. Detective McMurray and another officer on the scene testified that they heard the identifications and warnings prior to hearing the shots.
In addition to shooting Perez, the manager of the liquor store, the police also shot English, who fell to the ground approximately 12 feet back from the door. Wojcik and Mashemier testified that, before Perez could unlock the gate, they observed English on the ground feeling around for his gun. English retrieved his gun, lifted his arm and pointed the Uzi at the officers. They ordered English to leave the weapon alone. When he would not comply, Wojcik fired three more shots at English. Wojcik testified he stopped firing when he saw English's arm fall and the gun hit the ground. Perez opened the gate after the second round of gunfire.
Once Wojcik and Mashemier were let into the building, Wojcik stepped on English's hand and picked up the fallen weapon. In case he needed another weapon when he tried to apprehend Jimenez, Wojcik testified, he pointed the gun at the ceiling, tried to fire it, but the trigger would not pull. He tried the safety on both sides of the weapon and tried pulling the bolt back to clear the gun, but to no avail. English's gun contained 13 bullets. Wojcik gave the gun to Mashemier and handcuffed English, who had been shot a total of nine times.
Wojcik then moved to apprehend Jimenez, who was lying on his back in the store, having been shot in the leg. Wojcik recognized him as the man with the chrome pistol. Jimenez said "don't shoot, you got me." Wojcik recovered a chrome pistol from underneath the bar. When paramedics arrived on the scene, they removed the nylons from the offenders' faces. Detective James Gilger rode in the ambulance with Jimenez. He searched Jimenez' person during the ride to the hospital. Gilger recovered dark blue gloves and the panties that had been cut from the nylon stocking Jimenez wore. Detective Thomas Finnelly rode in the ambulance with English. Finnelly searched English and recovered a gold chain, bracelet, a gold earing and a wad of $20 bills. Perez subsequently identified the chain and bracelet as his property.
Officer Peter Mashemier's testimony corroborated that of Detective Wojcik. Mashemier testified he clearly heard Wojcik yell "police" and saw the pointing of weapons by the offenders before the shooting started. Mashemier testified he thought they would be killed if they did not stop the offenders. Testimony of Detectives John McMurray and Thomas Finnelly was similarly corroborative of Wojcik's version of the events.
English did not testify in his own behalf. The trial court explained his rights to him and he waived his right to testify in open court.
Jimenez presented one witness, Juan Delgado, the bartender at Armitage Liquors. Delgado testified that he knew Jimenez, who was sitting at the bar when two masked gunmen entered. Delgado testified that Jimenez hid between the dart machine and jukebox when the shooting started. In rebuttal, the State called Detective Michael Mason, the police detective who interviewed Delgado at the time. According to Mason, Delgado did not know Jimenez and did not exonerate Jimenez in his initial statement.
The jury found Mark English guilty of the attempted murder of Officer Mashemier and Detective Wojcik. The jury also found him guilty of armed robbery. Jimenez was found guilty of the armed robbery, but not attempted murder. English was sentenced to 25 years for the attempted murder of Officer Mashemier, 25 years for the attempted murder of Detective Wojcik, and 20 years for armed robbery. All of the sentences were entered so as to run concurrently.
On direct appeal, this court held that English was not subject to the Illinois "truth in sentencing" law contained in Public Act 88-680 (Pub. Act 88-860, eff. January 1, 1995) because that public act violated the single subject rule of the Illinois Constitution. This court also held that English was eligible for day-for-day good-conduct credit. People v. English, No. 1-97-3511 (1999) (unpublished order under Supreme Court Rule 23).
On August 12, 1999, English filed a pro se petition for post-conviction relief. In that petition, English claimed his trial lawyer was ineffective for: (1) failing to investigate a witness, Dr. Hoffa; (2) failing to present expert testimony that the gun English was carrying was inoperable at the time of the crime; (3) failing to allow English to testify; and (4) failing to object to hearsay during the trial. English claimed his appellate lawyer was ineffective for not raising his trial counsel's effectiveness on appeal and for not raising reasonable doubt as an issue on appeal. In his post-conviction petition, defendant averred that he had gone to Armitage Liquors "to take money from Orlando Perez." English admitted he was armed but asserted that the gun was a "a 'tool' used to frighten and intimidate Orlando Perez." As to the patrons in the store, defendant asserted he "took them into the basement out of harm's way." He also admitted that as he exited the rear door, he saw police officers. Further, he "knew he was caught. He slammed the door in their faces to prevent them from entering the establishment. To buy some time. To distance his gun and mask from his person." English alleged that the police shot him as he lay on the floor after he "surrendered." The pro se petition for post-conviction relief was summarily dismissed as frivolous and without merit. In this appeal, new appellate counsel argues that trial counsel was ineffective for failing to investigate a potential witness, Dr. Hoffa, and for failing to present expert testimony that defendant's gun was inoperable and that appellate counsel was ineffective for not raising reasonable doubt as an issue in the appeal of defendant's convictions for attempted murder.
The Illinois Post-conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 1996)) provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998), citing 725 ILCS 5/122-1 (West 1994). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. The petition must clearly set forth the respects in which the petitioner's rights were violated. Coleman, 183 Ill. 2d at 379, citing 725 ILCS 5/122-2 (West 1994). Section 122-2 of the Act requires that affidavits, records, or other evidence supporting the petition's allegations be attached to the petition. Coleman, 183 Ill. 2d at 379, citing 725 ILCS 5/122-2 (West 1994).
Under the Act, a post-conviction proceeding not involving the death penalty consists of three stages. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001), citing People v. Gaultney, 174 Ill. 2d 410, 418 (1996).
"At the first stage, the circuit court must independently review the post-conviction petition within 90 days of its filing and determine whether 'the petition is frivolous or is patently without merit.' 725 ILCS 5/122-2.1(a)(2) (West 1998). If the court determines that the petition is either frivolous or patently without merit, the court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 1998). A post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the 'gist of a constitutional claim.' Gaultney, 174 Ill. 2d at 418, citing People v. Porter, 122 Ill.2d 64, 74 (1988). The 'gist' standard is 'a low threshold.' Gaultney, 174 Ill. 2d at 418. To set forth the 'gist' of a constitutional claim, the post-conviction petition 'need only present a limited amount of detail' (Gaultney, 174 Ill. 2d at 418) and hence need not set forth the claim in its entirety. Further, the petition need not include 'legal arguments or [citations] to legal authority.' Gaultney, 174 Ill. 2d at 418." Edwards, 197 Ill. 2d at 244.
Our review of the circuit court's summary dismissal of defendant's post-conviction petition is de novo. " 'Due to the elimination of all factual issues at the dismissal stage of a post-conviction proceeding, the question is, essentially, a legal one, which requires the reviewing court to make its own independent assessment of the allegations. Thus, a court of review [is] free to substitute its own judgment for that of the circuit court in ...