Appeal from the Circuit Court of Kane County. Honorable M. Karen Simpson, Judge, Presiding. No. 07-CF-1753
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.
¶ 1 Defendant, Michael A. Luciano, appeals the judgment of the circuit court of Kane County, summarily dismissing his post-conviction petition. Defendant questions the propriety of his mandatory natural-life-without-parole sentence in light of recent Supreme Court authority and urges that his counsel was ineffective for failing to move to dismiss his 2007 murder charges because they were based on the same acts as charges to which, in 1991, he pleaded guilty. We reverse, vacate defendant's sentence, and remand the cause with directions.
¶ 3 In People v. Luciano, No. 2-09-0066 (2010) (unpublished order under Supreme Court Rule 23) (Luciano I), we set forth in detail the factual background of this case, and we do not need to repeat it. Instead, we summarize the salient facts for purposes of the issues raised in this appeal.
¶ 5 On Halloween night, 1990, Albert "Psycho" Gonzalez, then-president of the Insane Deuces, a street gang in Aurora, was shot to death at his home on Grove Street in Aurora. Suspicion for the shooting fell on the Latin Kings, another gang in Aurora, and specifically on defendant; his father, Angel Luciano, who was the leader (Inca) of the Latin Kings in Aurora; and Robert "Droopy" Rangel. In 1990 and 1991, defendant was charged with solicitation to commit aggravated discharge of a firearm and illegal possession of weapons, some of which were used in the Gonzalez shooting. Rangel went to trial for the murder while the charges against defendant pended. Rangel was acquitted of the murder. After Rangel's acquittal, the State entered into a plea agreement with defendant in which defendant would plead guilty to possessing certain firearms, including those used in the Gonzalez shooting, in exchange for the State nol-prossing the charge of solicitation to commit aggravated discharge.
¶ 6 In about 2005, the case was revived when members of the Aurora Latin Kings were being arrested and charged with violating federal drug laws. To avoid heavier sentences, some gang members agreed to cooperate with the authorities, including the Kane County State's Attorney. In 2007, both defendant and Angel Luciano were charged with the murder of Gonzalez on the theory that they ordered fellow Latin Kings to carry out the shooting. Angel Luciano was acquitted of the Gonzalez murder charges while defendant was convicted of intentional murder and "strong probability" murder as well as felony murder predicated on mob action.
¶ 7 The conviction of the Gonzalez murder was defendant's second conviction of murder. Some months before the trial in this matter, defendant was convicted of the 1989 murder of Willie Arce. When this case advanced to sentencing, defendant, having been convicted of two murders, was deemed subject to a mandatory sentence of natural life without parole, notwithstanding the fact that he was 17 years old at the time of the offenses. Defendant directly appealed his conviction in this case, arguing only that, because the same evidence was presented against Angel Luciano during their simultaneous trial, and Angel Luciano was acquitted, the evidence was insufficient to support defendant's conviction. We held that the evidence was sufficient to convict defendant because the trial court carefully segregated and considered the evidence pertaining to each defendant. Because some evidence was admitted against defendant and not against his father, i.e., the evidence pertaining to each defendant was not identical, the evidence against defendant supported his conviction. See Luciano I, No. 2-09-0066 (Oct. 26, 2010) (unpublished order under Supreme Court Rule 23).
¶ 8 Subsequently, defendant filed a pro se post-conviction petition. In the post-conviction petition, defendant raised, among other things, an ineffective-assistance claim, contending that the 2007 murder charges were subject to compulsory joinder with the 1991 solicitation-to-commit-aggravated-discharge and gun-possession charges, so trial counsel was ineffective for failing to move to dismiss the 2007 charges, and appellate counsel was ineffective for failing to raise trial counsel's ineffective assistance. The trial court summarily dismissed the petition.
¶ 10 We next give a brief overview of the trial. As earlier noted, on Halloween night of 1990, Gonzalez was shot to death at his home. A police investigation revealed that the shooters stood on a grassy area about 190 feet from the house and shot through its walls. Gonzalez was struck in the chest and died from a bullet wound to his heart. Scant comfort though it may be, at the time of the shooting, Gonzalez's wife and children were out of the house trick-or-treating. The police investigation of the grassy area uncovered shells and shell casings of various calibers and types, including rifle and shotgun ammunition.
¶ 11 On November 4, 1990, the police searched a residence on Galena Boulevard in Aurora, recovering a number of weapons and ammunition. Photographs of Angel Luciano with others making gang signs, Latin Kings records, solvent, and rubber gloves were also recovered. Searches of other structures on the property, namely, a trailer and a panel van, uncovered more ammunition, photographs, and a newspaper clipping about the Gonzalez murder.
¶ 12 On November 7, 1990, the police searched an apartment on Best Place in Aurora following an interview with Hector "Winehead" Rodriguez. Hector Rodriguez had told police about an October 31, 1990, meeting at which weapons were distributed to Latin Kings members, including Rangel, Jose "Bam Bam" Martinez, and Jose "Speedy" Rivera, with orders to use them to shoot Gonzalez. Hector Rodriguez had also told police that, on November 3, 1990, the weapons were returned to defendant at the Best Place apartment.
¶ 13 Police executed the search warrant late that night. Inside the bedroom, police recovered weapons that were later determined to be consistent with the evidence discovered at the grassy area across from Gonzalez's house. In particular, they found a sawed-off "Ted Williams" 12-gauge shotgun, a Commando Mark .45-caliber assault rifle with 27 bullets still in its magazine, a . caliber carbine, and a Marlin .30-30 rifle. In addition, assorted ammunition of various calibers was recovered. Testing matched evidence from the grassy area to the Ted Williams shotgun, the Marlin .30-30 rifle, and the Commando Mark .45 assault rifle. Additionally, defendant's fingerprints were found on the Commando Mark .45 assault rifle.
¶ 14 Juan Acevedo spoke to police and revealed that three Latin Kings-Rangel, Michael "Loco" Rodriguez, and Jose Delatorre-visited his house after the shooting. Acevedo related that the three used an outside water spigot to wash their hands, and then they left. The police searched Michael Rodriguez's home, recovering a loaded .22-caliber gun.
¶ 15 Late in 1990, the Kane County State's Attorney began prosecuting cases arising from the Gonzalez shooting. Rangel was charged with Gonzalez's murder; defendant was charged with a number of gun possession offenses and, in May 1991, the charge of solicitation to commit aggravated discharge of a firearm was added. While defendant's charges were pending, Rangel went to trial on the murder charge. At the trial, Hector Rodriguez and Acevedo testified. Rangel was acquitted. Following the acquittal, in December 1991, defendant pleaded guilty to possessing the Ted Williams shotgun, the Marlin .30-30 rifle, and the Commando Mark .45 assault rifle, in exchange for the State's agreement to nol-pros the charge of solicitation to commit aggravated discharge of a firearm. We note that, at defendant's trial for the murder of Gonzalez, his guilty pleas were entered into evidence to demonstrate that he possessed the weapons that were used in the Gonzalez shooting.
¶ 16 The Gonzalez murder investigation languished for about 15 years. Federal efforts into investigating the Aurora Latin Kings began to turn members and former members into cooperating witnesses. In 2007, defendant was charged with the murder of Gonzalez. At the trial, several witnesses who were active in the Aurora Latin Kings around the time of the Gonzalez shooting testified for the State.
¶ 17 Michael Rodriguez testified about a meeting, held in the basement of Angel Luciano's house on Galena Boulevard, that occurred before Halloween. According to Michael Rodriguez, the same members who would later attend the Halloween meeting were present. Michael Rodriguez testified that Angel Luciano told the attending members that Halloween presented the gang with a good opportunity to wear black (one of the gang's colors) and do shootings. Michael Rodriguez also testified about the Halloween night meeting, which took place at the house of Angel Luciano's girlfriend. Attending the meeting were Angel Luciano, defendant, Hector Rodriguez, Rivera, Jose "Fang" Hernandez, Juan "Orco" Corral, Jose Oliva, and "Joe." A number of rifles were piled on a table and defendant told the membership to go out and shoot up rival gangs. Michael Rodriguez testified that defendant passed a shotgun to Rangel, a .30-30 to "Joe," and the .45-caliber assault rifle to Hector Rodriguez. Michael Rodriguez testified that he did not receive a weapon from defendant and asserted that Irving Childress did not receive a weapon from defendant, either. Michael Rodriguez testified that Angel Luciano ordered him, Rangel, Joe, and Childress to "hit" Gonzalez. Due to a recent injury, Childress was excused and he gave Michael Rodriguez his weapon. Angel Luciano also instructed the group to go to a park near the Gonzalez house and shoot from there.
¶ 18 Michael Rodriguez described how he, Rangel, and Joe went to the grassy area and shot at Gonzalez's house. He testified that he used a .22-caliber rifle and, after the shooting, dropped it in the grassy area as they ran back to Joe's car. The three then went to Acevedo's house. Joe and Rangel dropped off the other weapons there and they all washed their hands.
¶ 19 Michael Rodriguez also testified about the plea deal he had entered into with the State. He revealed that, in exchange for his testimony and pleading guilty to conspiracy to commit murder, he received a seven-year sentence. The sentence was reduced to five years after he had testified in another homicide case.
¶ 20 Hector Rodriguez testified that defendant ordered him to shoot Gonzalez and gave him the Commando Mark .45-caliber assault rifle to use in that task. Hector Rodriguez testified that there had been a Latin Kings meeting during the afternoon of Halloween, and he thought it occurred in the basement of Diane's house (Diane was a girlfriend of Angel Luciano). Rangel and defendant were among the gang members who attended the meeting. It was at this meeting when defendant ordered Hector Rodriguez to perform the shooting.
¶ 21 Hector Rodriguez testified that he drove with Rivera to Gonzalez's home to do a drive-by shooting, with the assault rifle. As he was driving by the Gonzalez home, he observed police and other emergency vehicles already at the scene, so he drove off. Later, defendant told him to "move" the assault rifle, so he returned the weapon to defendant at Diane's house (but this location was, according to Hector Rodriguez, not the same place where the Halloween-afternoon meeting occurred). Hector Rodriguez testified that he placed the assault rifle on a bed with other weapons, including the Ted Williams shotgun and the Marlin rifle, while defendant was busy wiping down all of the weapons.
¶ 22 Hector Rodriguez also testified that, a couple of nights before Halloween, he went to the Attic, a bar located in downtown Aurora. There, he encountered other Latin Kings gang members, including defendant and Angel Luciano. At the Attic, Angel Luciano instructed him to perform a drive-by shooting at Gonzalez's house.
¶ 23 Hector Rodriguez also acknowledged that he had testified for the State during Rangel's October 1991 murder trial. In his testimony in the Rangel trial, he had asserted that the Halloween-day meeting occurred in a house on Plain Avenue. In the present trial, Hector Rodriguez asserted that he had dropped out of the Latin Kings gang and was not receiving any consideration for his testimony. He acknowledged, however, that he understood that the Kane County State's Attorney's office would send a letter indicating his cooperation in this matter to the Wisconsin prosecutor who had convicted him of a sex offense, for which he was serving a five-year term of incarceration. In addition, the record shows that, despite his claim that he was not receiving consideration for testifying in the Rangel trial, drug charges against him had been withdrawn after his testimony at that trial.
¶ 24 Oliva testified about a gang meeting on Halloween day in 1990. Oliva testified that defendant was present, along with Rangel, Martinez, and others (but could not recall if Michael Rodriguez was present). Oliva testified that between 15 and 30 guns were spread out on a table. The members were told to take guns and use them against other gangs; they took guns and left in groups. Oliva testified that he was instructed to hit Gonzalez. He observed Rangel take a sawed-off shotgun and Martinez take a .30-30 rifle. Oliva testified that he spent the night driving around with a couple of girls and, a couple of hours after the offense, he learned that Gonzalez had been shot.
¶ 25 Oliva noted that, on November 4, 1990, he was first questioned by the police. During police questioning, Oliva gave police a mixture of true information and lies. Oliva acknowledged that, during a 2006 federal trial, he admitted that he had provided false testimony in the past. Oliva also acknowledged that, in exchange for his testimony against defendant, he had been given favorable sentencing terms when he was facing a possible natural-life term arising from drug convictions.
Oliva acknowledged that he could be released from prison in as little as 15 months if the federal authorities ...