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Appeal from the Circuit Court of Kane County. No. 05-CF-2797. Honorable Robert K. Villa, Judge, Presiding.
On appeal from the summary dismissal of defendant's postconviction petition claiming actual innocence based on entrapment and ineffective assistance of counsel arising from defendant's convictions in absentia for attempted first-degree murder and aggravated discharge of a firearm, the appellate court affirmed defendant's convictions and the summary dismissal of his postconviction petition, since entrapment was not available as a defense where defendant denied committing that offense and defendant's absence from the trial precluded his counsel from meeting his obligation to discuss the availability of a lesser-included-offense instruction with defendant and whether there was a reasonable probability that submission of such an instruction could change the result.
For Appellant: Matthew J. Haiduk, Geneva.
For The People: Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Sally A. Swiss, State's Attorneys Appellate Prosecutor's Office, Of Counsel).
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.
[¶1] Following a jury trial in absentia, defendant, Augustine T. Montes, was convicted of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). He was sentenced to 26 years' imprisonment for attempted murder and a concurrent 10-year term for aggravated discharge of a firearm. On direct appeal, we affirmed defendant's conviction. People v. Montes, 2013 IL App. (2d) 111132, 992 N.E.2d 565, 372 Ill.Dec. 723.
[¶2] Thereafter, defendant, with assistance of counsel, filed a postconviction petition pursuant to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)). Defendant raised claims of actual innocence, based on entrapment, and ineffective assistance of counsel. The trial court summarily dismissed the petition, and defendant appeals. For the reasons that follow, we affirm.
[¶3] I. BACKGROUND
[¶4] We provide a summary of the trial evidence here; a more detailed recitation of the evidence may be found in our prior decision. Montes, 2013 IL App. (2d) 111132, ¶ ¶ 1-48. Further, we again note that defendant was not present at his trial.
[¶5] On November 22, 2005, at around 12:30 p.m., Julian Ramos was walking to his girlfriend's house in Aurora when he saw four people in a green Pontiac Bonneville pass him. One person exited the vehicle, and Ramos began to run. At some point, he turned around and saw someone about 35 to 40 feet away pointing a gun at him. The person wore a black, hooded sweatshirt and was heavyset (approximately 230 pounds). Ramos saw a gun and then turned around and heard shots fired. He screamed " I ain't no King," and he continued running and climbed into a truck to hide.
[¶6] At the time of the shooting, Blake Pannell was working for the FBI as an informant. Pannell, who had committed several serious crimes and who was serving as the " enforcer" for the Aurora Latin Kings street gang, testified that he was with defendant, Quentin Moore, and Ruben Hernandez on the day of the shooting. Pannell testified that he was wearing a recording device given to him by the FBI. Moore drove the men in his green Pontiac Bonneville, and they went to spray paint over graffiti that rival gangs had painted in Latin King territory. According to Pannell, defendant noticed a man on foot (Ramos) whom he believed to be a member of the Insane Deuces, a rival gang. The men began plotting how to catch up with the man to shoot him; Pannell, ...