Court of Appeals of Illinois, First District, Fifth Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 09 CR 3228. Honorable Vincent M. Gaughan, Judge Presiding.
For APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Karl H. Mundt, Assistant Appellate Defender, Office of the State Appellate Defender - First Judicial District, Chicago, IL.
For APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Peter D. Fischer, Judy L. DeAngelis, Assistant State's Attorneys, Cook County State's Attorney's Office, Chicago, IL.
JUSTICE GORDON delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Presiding Justice Palmer specially concurred, with opinion.
[¶1] Following a bench trial, defendant Jermaine Ross was convicted of being an armed habitual criminal and sentenced to 80 months' in the Illinois Department of Corrections (IDOC). We affirmed on direct appeal, where we found that the evidence was sufficient to show that the defendant had constructive possession of a handgun found in plain view behind the driver's seat of a vehicle he had been driving which supported a conviction for being an armed habitual criminal. People v. Ross, 407 Ill.App.3d 931, 947 N.E.2d 776, 349 Ill.Dec. 762 (2011). Defendant now appeals from the summary dismissal of his pro se postconviction petition at the first stage, contending that he raised two claims of arguable merit. First, he contends that he was actually innocent based on an affidavit from his son who claims that the son actually committed the offense, or that trial counsel was ineffective for not properly presenting the son's affidavit into evidence or for not raising it. Second, he contends that IDOC increased his sentence without authority by imposing a three-year term of mandatory supervised release (MSR) not imposed by the trial court. For the reasons that follow, we reverse and remand with instructions.
[¶3] I. State's Case In Chief
[¶4] Police officer Conray Jones, a 16-year veteran of the Chicago police department, testified that he was with his partner, Officer Robert Seaberry in uniform, in a marked police vehicle when he observed Sylvester Tatum walking toward defendant's vehicle stopped along the curb on West End Avenue near Central Avenue. The police vehicle was 20 to 30 feet from the rear of defendant's parked vehicle in a traffic lane when Jones heard Tatum say " rocks and blows" to defendant, who was stopped with his vehicle running, window opened, sitting in the driver's side of the vehicle with no passengers. The officer knew that " rocks and blows" was street talk for cocaine and heroin. When Tatum noticed the police vehicle, he walked away from the parked auto. Defendant then exited the vehicle, leaving the auto running. The officers detained defendant and Tatum. Officer Jones testified to observing only the defendant and Tatum in the area. Officer Seaberry walked to the stopped vehicle and returned with a .40-caliber handgun with 10 live rounds. The officers then placed defendant under arrest.
[¶5] Officer Jones's partner, Officer Seaberry, a 14-year veteran policeman, also testified that he heard Tatum say something like " rocks and blows" as they eased behind defendant's vehicle. Officer Seaberry's testimony corroborated the testimony of Officer Jones. After the police detained Tatum and defendant, Officer Seaberry walked over to defendant's vehicle, which was still running. While standing outside the vehicle, he observed the butt of a gun on the floor of the backseat, behind the driver's side, next to and partially under a black bag. Officer Seaberry testified that he made this observation from outside the vehicle while the back door was closed.
[¶6] Officer Seaberry testified that he had previously arrested defendant's son Jemal and that, at the time of the offense
in the present case, Jemal was in the area. Officer Seaberry denied under oath observing Jemal in the vehicle, but he was impeached by his testimony at the probable cause hearing when he testified that he did observe him in the vehicle. The following testimony occurred at the probable cause hearing:
" QUESTION: Did you see Jemal Ross on that day?
OFFICER SEABERRY: I did.
QUESTION: You saw him in the vehicle?
OFFICER SEABERRY: I did."
However, Officer Seaberry indicated that he meant defendant, not Jemal.
[¶7] After the State presented and offered in evidence certified copies of defendant's convictions for delivery of a controlled substance, it rested its case.
[¶8] II. Defense Case
[¶9] The defense called Elizabeth Gomez, defendant's girlfriend, who testified that the vehicle belonged to her. On the morning of defendant's arrest, defendant dropped her off at work at about 9:50 a.m. and at that point in time the only item in the backseat of her vehicle was an infant car seat.
[¶10] Defendant also testified on his own behalf that when he drove Gomez's vehicle, the only item in the backseat was the infant car seat and he denied having a gun in his possession. Defendant testified that, after he dropped off Gomez, he picked up his friend, Tyrone Patterson, and then he observed his teenage son, Jemal, on Central Avenue. Defendant stopped and told Jemal that he would be stopping a block away.
[¶11] When defendant turned onto West End Avenue, he observed Tatum and another friend. Defendant stopped and parked the vehicle and walked across the street to talk to Tatum. Then, an unmarked police vehicle arrived, and a detective told defendant to move his vehicle because it was parked illegally. The unmarked police vehicle then left the area. Defendant then asked his friend Patterson to move the vehicle, as defendant's son Jemal approached. Then, a marked police vehicle arrived with Officers Jones and Seaberry.
[¶12] Patterson also testified for the defense and corroborated most of defendant's testimony. However, he testified that, after he exited the vehicle after parking it, he was walking toward defendant when Jemal arrived. He observed Jemal walk toward the vehicle, open the back door and place a gun under the seat. As Patterson began to tell defendant what Jemal had done, the police arrived and detained everyone, which included defendant, Tatum, Patterson, and Jemal, and placed all of them into a police vehicle and drove them to the police station. Patterson had three prior felony convictions and was on parole at the time of his testimony.
[¶13] The defense also introduced 43 seconds of security camera footage that showed only Officer Seaberry walking to the backseat of the parked vehicle. Defendant testified that the video ...