Appeal from the Circuit Court of Plaintiff-Appellee,Cook County No. 98 CR 4529
The opinion of the court was delivered by: Honorable Joseph M. Claps,
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Karnezis and Connors concurred in the judgment..
Petitioner Shenard Lesure was charged with first degree murder, attempted first degree murder, aggravated battery with a firearm, and aggravated battery allegedly committed when he was 15 years old. Following a bench trial, petitioner was convicted of first degree murder and attempted first degree murder and was sentenced to consecutive terms of 50 and 25 years' incarceration in the Illinois Department of Corrections, respectively. Petitioner commenced a post-conviction proceeding, alleging that his rights to counsel and trial by jury had been violated and that he had proof of his actual innocence, which had been unavailable at the time of trial. The trial court dismissed petitioner's petition following a third-stage evidentiary hearing on the issue of defendant's actual innocence. Petitioner appeals that dismissal of his post-conviction petition. The only issue on appeal is whether the trial court erred in sentencing petitioner as an adult under the Unified Code of Corrections (730 ILCS 5/5-1-1 et seq. (West No. 1-08-2333 1996)) rather than as a juvenile under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1996)). For the following reasons, we affirm.
The trial court dismissed defendant's post-conviction petition on July 18, 2008, and defendant filed his notice of appeal 31 days later on August 18, 2008. Because the thirtieth day following the trial court's order was a Sunday, defendant's notice of appeal was timely filed as provided in the Statute on Statutes. 5 ILCS 70/1.11 (West 2008) ("The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded."). Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 606 and 651 governing appeals from final judgments of the circuit court in post-conviction proceedings. Ill. S. Ct. R. 606 (eff. Sept. 1, 2006); R. 651 (eff. Dec. 1, 1984).
A grand jury indicted petitioner on four counts of first degree murder of Porche Smith (720 ILCS 5/9-1 (West 1998)), attempted first degree murder of Emil Clark (720 ILCS 5/8-4 (West 1998)), aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 1998)), and two counts of aggravated battery (720 ILCS 5/12-4 (West 1998)). petitioner waived his right to a jury trial and the State proceeded by way of a bench trial before the Honorable Fred Suria.
Six witnesses testified at the trial: Mary Hammond, the mother of Porche Smith; Emil Clark, the second victim; Jordasch Robinson, Carlton Reed, and Odell Harris - all members of the Gangster Disciples gang; and Chicago police pfficer Timothy Karpiel. At trial, the evidence established that petitioner, a member of the Gangster Disciples (GD), was riding in a van on Chicago's southwest side with other GDs on the evening of July 6, 1997, when members of a rival GD faction opened fire on the vehicle. Petitioner, who was 15 years old at the time of the shooting and 16 years old at the time of trial, then spoke with some of his GD associates about taking revenge against the rival faction in response to the shooting of the van. In the early morning hours of July 7, 1997, petitioner and a youth identified only as "Trell" waited in an alley near 63rd and Artesian, armed with a 9 millimeter and a .38-caliber firearm. Porche Smith and Emil Clark were walking along Artesian when petitioner and Trell came out of the alley and opened fire. Emil Clark was shot in the abdomen, causing him to fall to the ground. While he was on the ground, Clark heard several gunshots before one of the assailants approached him and shot him a second time in the leg. Meanwhile, Porche Smith suffered two gunshot wounds to the head and a third gunshot wound to her left leg. Porche Smith died at the scene. Emil Clark was able to return home, where he called for an ambulance, and then spent the next week and a half in the hospital recovering from his injuries.
After the shooting, petitioner told several of his fellow GDs that he had shot a man and a woman near the alley at 63rd and Artesian early in the morning of July 7, 1997. He then proceeded to hide out at the apartment of Odell Harris, a fellow GD, for approximately five days in an attempt to evade police detection. Police eventually apprehended petitioner six months later at the home of his grandfather and placed him into custody. Once petitioner had been arrested, Emil Clark identified him in a lineup as the person who had shot him on July 7, 1997.
On December 11, 1998, at the close of the bench trial, the trial court
found petitioner guilty of first degree murder of Porche Smith and
attempted murder of Emil Clark. On January 7, 1999, the trial court
sentenced petitioner to 50 years' incarceration with the Illinois
Department of Corrections on the
charge of first degree murder and 25 years'
incarceration with the Illinois Department of Corrections on the
charge of aggravated battery, with both terms to be served
Petitioner then appealed, arguing, among other things, that the trial court erred in sentencing him for aggravated battery when he had actually been convicted of attempted murder. This court vacated petitioner's sentence for aggravated battery and remanded the case to the trial court for sentencing on the attempted murder conviction. People v. Lesure, No. 1-99-0909 (2000) (unpublished order under Supreme Court Rule 23). The trial court subsequently sentenced petitioner to 25 years' incarceration with the Illinois Department of Corrections for the attempted murder conviction, a term to be served consecutively with his sentence for first degree murder.
On August 16, 2001, petitioner filed a pro se petition for post-conviction relief in which he argued that his conviction should be overturned because he was charged as an adult pursuant to the Safe Neighborhoods Law (Pub. Act 88-680 (eff. Jan. 1, 1995)), which our supreme court found unconstitutional in People v. Cervantes, 189 Ill. 2d 80, 89 (1999), because it violated the single-subject rule. On September 15, 2004, petitioner filed a supplemental amendment to his petition, alleging that he had proof of his actual innocence. In support of this argument, petitioner attached an affidavit of Emil Clark, one of the victims petitioner was convicted of shooting, in which Clark recanted his testimony at trial identifying petitioner as the shooter.
The trial court appointed counsel for petitioner, after which petitioner filed an amended petition for post-conviction relief on April 5, 2006. The amended petition presented three arguments. First, petitioner alleged that his right to counsel had been violated immediately preceding the start of his bench trial. Second, petitioner alleged that his right to a jury trial had been violated because the trial court failed to adequately ascertain whether he knowingly, intelligently, and voluntarily waived that right. Finally, petitioner alleged that the recantation of the only eyewitness to the shooting proved his actual innocence. On September 14, 2006, petitioner filed a second amended petition reiterating the three claims that he made in his first amended petition. On September 13, 2007, the trial court entered an order dismissing petitioner's first two claims and granting an evidentiary hearing on petitioner's third claim.
At an evidentiary hearing on March 21, 2008, Emil Clark testified and recanted the testimony that he gave at petitioner's December 1998 trial. Specifically, Clark testified that he had lied while on the witness stand and that petitioner was not the person who shot him. He claimed that he only identified petitioner as the shooter because he had been pressured to do so by police. Clark further testified that petitioner's mother had helped him draft the affidavit which petitioner had submitted along with his September 15, 2004, supplemental petition. The State then presented the testimony of Chicago police officers Jean Romic and Thomas Benoit, the officers who had interviewed Clark in the course of their investigation into the shootings in the instant ...