Appeal from Circuit Court of Adams County No. 00CF55 Honorable William O. Mays, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
Carla Bender 4th District Appellate
JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Holder White concurred in the judgment and opinion.
¶ 1 In October 2011, defendant, Mario S. English, Jr., filed a pro se motion for fingerprints or forensic testing on a handgun under section 116-3 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/116-3 (West 2010)). In a December 2011 written order, the Adams County circuit court sua sponte denied defendant's motion. Defendant appeals, asserting this court should remand the cause for a hearing on the motion's merits because the trial court improperly treated the motion as a post-conviction petition. We affirm.
¶ 3 Around 12:30 a.m. on November 14, 1999, two armed men entered Cassano's restaurant in Quincy after the restaurant had closed and took money from the restaurant and the employees. In February 2000, the State charged defendant by information with the armed robbery (720 ILCS 5/18-2(a) (West 1998)) of Cassano's. On a pretrial motion, the trial court allowed the State to use evidence of three of the armed robberies that closely matched the modus operandi of the Cassano's robbery.
¶ 4 At defendant's May 2002 trial, three employees of Cassano's (James Schmalshof, Brian Postle, and Roger Hokamp) testified two men, one of whom was armed with a gun, entered the restaurant through the back door. According to the employees, the intruders' faces were covered, and they were wearing gloves. The employees gave very similar descriptions of the intruders' height and build.
¶ 5 The State also presented the testimony of defendant's acquaintances, William Raine, Terry Legel, and Chad Dennison. Raine testified he, Legel, and defendant robbed Cassano's. Raine went in the restaurant but could not remember for sure if defendant or Legel went in the restaurant with him. The third person stayed with the car. They used a .380 handgun. Raine also testified about three other robberies (Lone Star, Happy Joe's, and Ganzo's) he committed that involved defendant and the same .380 handgun.
¶ 6 Legel, defendant's cousin, testified he robbed Cassano's with Raine and Fernando Duarte. According to Legel, he and Raine went into the restaurant while Duarte stayed with the car. However, Legel admitted that in December 1999, he told Detective Bill Thomas defendant participated in the robbery, not Duarte. Legel had explained to Detective Thomas that Raine and defendant went into Cassano's while he remained in the car. Legel further testified he had the .380 Bersa handgun during the Cassano's robbery, which belonged to him, Dennison, and defendant. Moreover, Legel stated he participated in (1) the Lone Star robbery with Jimmy Morgan, Raine, and defendant; (2) the Happy Joe's robbery with Raine, Morgan, and Duarte; and (3) the Ganzo's robbery with Raine, Dennison, and Duarte. All three robberies also involved the .380 Bersa handgun. Legel also admitted he told Detective Thomas that defendant, not Duarte, was involved in the Happy Joe's and Ganzo's robberies. Legel explained he gave Detective Thomas a false statement because Detective Thomas had grabbed him around the neck and slammed him into a corner before the statement. Further, Detective Thomas told Legel that, if he cooperated with Detective Thomas, things would be a lot easier on Legel.
¶ 7 Dennison testified he did not take part in the Cassano's robbery but did take part in the Ganzo's robbery with Raine, Legel, and defendant. A .380 Bersa handgun was used in the Ganzo's robbery. Dennison further testified he was present when defendant purchased the .380 Bersa handgun in late September or early October 1999. According to Dennison, defendant purchased the gun for approximately $120 at an individual's house in Rock Island. Additionally, Dennison stated that, in late November 1999, the police stopped defendant and Dennison in a vehicle defendant was driving. Dennison testified defendant handed Dennison the handgun and told him to run. Dennison testified he ran and dropped the handgun while being pursued by the police. The police then recovered the handgun.
¶ 8 Rock Island police officer Jeffrey Collins testified that, on November 30, 1999, he stopped a vehicle in which defendant was the driver and Dennison was the passenger. No other passengers were in the car. Officer Collins observed Dennison run from the vehicle and then ran after him. When Dennison jumped up on a fence, the handgun fell from the front of Dennison's body. Officer Collins recovered the handgun, which was a Bersa .380 semiautomatic pistol. The officer never observed the gun in defendant's possession.
¶ 9 After hearing all of the evidence, a jury found defendant guilty of the Cassano's robbery. No posttrial motion was filed. In July 2002, the trial court sentenced defendant to 30 years in prison to run consecutive to a sentence in another case. Defendant appealed and argued
(1) the trial court denied him a fair trial by forcing defendant to wear an electroshock device during his trial, (2) the court improperly admitted evidence of three other armed robberies allegedly committed by defendant, (3) defendant did not receive effective assistance of counsel, (4) the cumulative effect of the errors in defendant's case denied him a fair trial, and (5) defendant received an excessive sentence. People v. English, No. 4-02-0737, slip order at 1 ...