Appeal from the Circuit Court of Lake County. No. 03-CF-3149. Honorable Christopher R. Stride, Judge, Presiding.
The denial of defendant's postconviction petition alleging that his trial counsel was ineffective in failing to correct an error in his presentence investigation report was affirmed, since defendant forfeited that claim by failing to raise the issue in a postjudgment motion or in his direct appeal, and forfeiture aside, even if his counsel's representation was deficient, defendant failed to establish that he suffered any prejudice.
Thomas A. Lilien and Josette Skelnik, State Appellate Defender's Office, of Elgin, for appellant.
Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Colleen P. Price, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.
Defendant, Juan J. Tapia, appeals a judgment denying his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq . (West 2008)). The petition claimed that the attorney who represented defendant when he pleaded guilty to attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)) had been ineffective for failing to correct an error in the presentence investigation report (PSI) on which the trial court relied in sentencing defendant to 15 years' imprisonment. We hold that defendant has forfeited the issue and affirm.
In September 2003, defendant was charged by complaint with two counts of attempted murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)) and two counts of armed violence (720 ILCS 5/33A-2(a) (West 2002)). The charges were based on the events of August 28, 2003, when defendant stabbed Liliana Martinez and Rosio Gonzalez (Rosio). Defendant failed to appear for his arraignment on September 23, 2003. His bond was forfeited and a warrant was issued for his arrest. Following his arrest and extradition from Georgia, defendant appeared for arraignment on February 27, 2007. In addition to the charges related to the August 28, 2003, stabbings, defendant was charged in case number 03-CF-3213 with two counts of aggravated criminal sexual abuse of Martinez.
On October 9, 2007, defendant, represented by attorney Barry Boches, entered a negotiated guilty plea to the attempted murder of Rosio, a Class X felony with a sentencing range of 6 to 30 years' imprisonment (see 720 ILCS 5/8-4(c)(1)
(West 2002); 730 ILCS 5/5-8-1(a)(3) (West 2002)). In return, the State dismissed the other charges and recommended a sentencing cap of 18 years' imprisonment.
The State presented the following factual basis for the plea. On August 28, 2003, defendant, the two victims, and Rene Gonzalez (Rene) (no relation to Rosio) were sitting in a parked van. Defendant and Rene exited the van; defendant handed Rene a knife and told him to stab Rosio while he attacked Martinez. Rene refused. Defendant opened the van door and stabbed Martinez twice in the torso; she ran off. Defendant then reached in and tried to stab Rosio. She left the van and ran, but defendant caught up to her, stabbed her in the chest and twice in the abdomen, and slashed her across the back of her left shoulder and across her temple. In the month preceding the attacks, defendant had told Rene that he believed that Martinez was cheating on him and that he wanted to kill her.
The PSI revealed the following pertinent information. Both victims were 15 years old on August 28, 2003. Martinez suffered stab wounds that required surgery, and she was hospitalized for a week. Rosio suffered superficial stab wounds and was " stitched up and released." According to Martinez, on the evening of the incident, defendant drove her, Rosio, and Rene to a park on the pretext of meeting and robbing a drug dealer; on arriving, he stabbed Martinez, who ran screaming from the van; he then reentered the van, stabbed Rosio once, and, after she ran away, caught up with her and stabbed her again. Rene gave the police an account that was consistent with the foregoing. Defendant, in an interview for the PSI, said that he gave Rosio, Martinez, and Rene a ride to the park so that Rosio could buy cocaine; that Rosio and Martinez started fighting; that Rosio stabbed Martinez; and that defendant took the knife from Rosio and, in the process, started " freaking out" and swinging the knife around.
The PSI related the following about the history of the case. Defendant was arrested on August 28, 2003. On September 2, 2003, he posted bond and was released, but, on September 23, 2003, he failed to appear in court, and a warrant was issued for his arrest. Defendant had fled to Mexico, where he later met and married Martinez. They had a daughter. In 2005, the three of them moved to Davenport, Iowa. There, defendant was accused of kidnaping his daughter. After he gave the child to his mother, he fled to Georgia, where he incurred new charges. He was extradited to Illinois in February 2007. Since then, he had been in jail, with no major disciplinary problems.
According to the PSI, defendant, who was born April 1, 1982, had no juvenile record. On December 21, 2000, he pleaded guilty to unlawful use of a weapon, a Class A misdemeanor, and received 18 months' court supervision, which was terminated satisfactorily. On May 9, 2002, he pleaded guilty to three counts of criminal damage to property and was sentenced to 30 months' felony probation. In May 2002, defendant received supervision for driving under the influence of alcohol. On November 18, 2002, he pleaded guilty to resisting a peace officer, a Class A misdemeanor; that day, the trial court revoked his probation for criminal damage to property and resentenced him to two years' imprisonment.
In the PSI it was noted that, on April 29, 2006, defendant was arrested in Gwinnett County, Georgia, for " False Identification Documents (felony, 2 counts), Burglary (felony), Criminal Trespass (misdemeanor), Simple Assault (misdemeanor) and Give False Name/Address/Birthdate
to Police." The PSI also contained information that, on February 8, 2007, defendant pleaded guilty to the two counts of " False Identification Documents" and was sentenced to consecutive 12-month probation terms. He was then immediately returned to Illinois. Finally, as to defendant's criminal record, the PSI noted that, on October 10, 2005, Davenport police obtained a warrant to arrest him for kidnaping and child stealing, based on Martinez's accusation that he had stolen their daughter; the warrant was still active.
According to the PSI, defendant related that he left high school in 1996 but, in 1999, obtained certification as a computer technician and received a G.E.D. He worked in computers, then construction. In Mexico, he ran a chicken farm and sold it at a profit. He had been gainfully employed in Iowa and Georgia. He claimed that the kidnaping charge was based on a misunderstanding.
On December 17, 2007, the trial court, Judge Phillips presiding, held a sentencing hearing. At the outset, both the prosecutor and Boches told the court that they had reviewed the PSI and had no corrections or additions. The State then called Donald Paulsen, the police officer who had responded to the crime scene. He testified that, when he arrived, he saw the two victims lying in a driveway, bleeding profusely. Rosio had a stab wound or a cut above her left shoulder blade, a cut near her sternum, and another on her upper abdomen. Paulsen identified photographs of the injuries to Rosio and Martinez; these photographs were admitted into evidence.
In mitigation, defendant called his parents and Martinez. Defendant's mother testified that she wanted him to be available, because she was chronically ill. Defendant's father testified that defendant had dropped out of school in tenth grade because of the gang activity there. Martinez testified that defendant had been a good father to their daughter, who was now three. Since August 2003, defendant had changed " a lot" ; he no longer drank. A few months after the crime, Martinez had her baby, then went to Mexico and married defendant. Later, they moved to Iowa. At one point, she reported to the police that he had taken their daughter, but she had been mistaken; he had only dropped off the child at a relative's home. After defendant moved to Georgia, he regularly sent Martinez money.
In arguments, the prosecutor contended that defendant's account of the offense, as recorded in the PSI, differed widely from the evidence and demonstrated that defendant was minimizing his responsibility for his acts. Defendant had a serious criminal record even before August 28, 2003, and, after he was charged, he fled Illinois. Yet, despite being a fugitive, he " picked up offenses in Iowa, for which he must still answer; and he also picked up offenses in Georgia, for which he was convicted and sentenced." Moreover, despite supportive parents ...