Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 09 CR 1004. Honorable Stanley J. Sacks, Judge Presiding.
Reversed and remanded.
For APPELLANT: Law Offices of Terrence P. Lefevour, Chicago, IL, (Terrence P. Lefevour and Amanda N. Graham, of counsel).
For APPELLEE: Anita Alvarez, State's Attorney, Chicago, IL, (Alan J. Spellberg, Mary P. Needham and Jocelyn M. Schieve, of counsel).
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Presiding Justice Delort dissented, with opinion.
[¶1] Defendant, Juan Romero, went to trial on charges of attempted first degree murder of a peace officer, aggravated battery with a firearm against a peace officer, and aggravated discharge of a firearm against a peace officer in connection with a shooting that occurred on December 4, 2008. Defendant attempted to flee from two Chicago police officers and fired two gunshots in the process. One of those gunshots hit one of the officers in his clavicle. The other police officer pursued defendant, shot him, and arrested him. Defendant maintained that he only fired the shots in an attempt to scare the officers and to aid his escape. A jury acquitted defendant of attempted first degree murder, but convicted him of aggravated discharge of a firearm and aggravated battery with a firearm. The circuit court sentenced defendant to a total of 42 years' imprisonment based on the imposition of consecutive sentences of 12 years' imprisonment for aggravated discharge of a firearm and 30 years' imprisonment for aggravated battery with a firearm. This court affirmed defendant's conviction and sentence on direct appeal. People v. Romero, 2012 IL App. (1st) 103363-U.
[¶2] In September of 2013, defendant filed a postconviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)), alleging his constitutional rights were substantially violated by errors committed by his trial and appellate counsel. Relevant here, defendant argued that his trial and appellate counsel failed to argue that the circuit court considered an improper factor in aggravation in crafting his sentence. Specifically, defendant argues that the circuit court's statement during sentencing that " defendant was a little worse shot than he thought he would have been" resulted in the circuit court relying on its own subjective assessment of defendant's intent despite the jury's finding that defendant was not guilty of attempted murder. After reviewing the record and construing defendant's allegations in his favor, we hold that defendant presented an arguable basis for his claim of ineffective assistance of counsel based on the circuit court's consideration of an improper factor in aggravation. Therefore, we hold that the circuit court erred when it summarily dismissed defendant's petition as frivolous and patently without merit.
[¶4] On December 20, 2013, the circuit court summarily dismissed defendant's postconviction petition. Defendant timely filed his notice of appeal on January 8, 2014. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 651(a). Ill. S.Ct. R. 651(a) (eff. Feb. 6, 2013).
[¶6] In 2009, defendant was indicted with multiple counts of attempted first degree murder, aggravated discharge of a firearm, and aggravated battery with a firearm. A jury convicted defendant of aggravated battery, and aggravated discharge of a firearm. Defendant was found not guilty of attempted murder.
[¶7] Defendant's Trial and Initial Appeal
[¶8] A detailed account of defendant's trial and initial appeal is well stated in this court's 2012 unpublished order filed pursuant to Illinois Supreme Court Rule 23 (eff. July 1, 2011 ). People v. Romero, 2012 IL App. (1st) 103363-U. Below we will discuss those details from defendant's trial and initial appeal as they pertain to his postconviction petition. On December 4, 2008, two Chicago police officers, Officers Ryan Delaney and Tom Olson, spotted defendant as he walked home from his girlfriend's house. The police decided to stop defendant to speak with him about a prior incident. The police followed defendant in an unmarked squad car. When they opened their door, defendant turned around and fired two shots from a gun. One of the shots fired struck Officer Olson near his clavicle. Defendant fled, but Officer Delaney shot defendant before apprehending and arresting him. According to defendant, he only fired the gunshots in an attempt to scare the officers so that he could escape. A jury convicted defendant of aggravated battery with a firearm and aggravated discharge of a firearm. The jury found defendant not guilty of attempted murder.
[¶9] The State presented three witnesses at defendant's sentencing hearing: Chicago police officers Greg Sweeney, Michael Edens, and Tony Ramirez. Officers Sweeney and Edens described two prior incidents, which resulted in adjudications of juvenile delinquency, where defendant was found to possess a weapon. Officer Sweeney testified that on August 9, 2006, he saw defendant " throwing up gang signs in the street" near the area of 2220 North Sawyer Avenue in Chicago, Illinois. When Officer Sweeney opened his car door, defendant pushed the door, which knocked Officer Sweeney down. Officer Sweeney's partner eventually apprehended defendant and recovered a weapon. Officer Edens testified that on February 12, 2007, he and his partner apprehended defendant and recovered a handgun in the area of 3503 West Cortland Avenue in Chicago, Illinois. Officer Ramirez described an incident that occurred at defendant's trial. Officer Ramirez testified he was present in the courtroom on July 1, 2010, when the jury left the courtroom to deliberate. Officer Ramirez observed defendant raising " his middle finger" at the police officers present in court that day. The State also presented two victim impact statements, one from Officer Brian Delaney and one from Officer Thomas Olson.
[¶10] Defendant did not present any witnesses in mitigation. He apologized to Officer Olson, stating that it was not his " intention to shoot him." Defendant presented documents showing from September 27, 2004, until October 18, 2004, defendant had been treated for major depression disorder, alcohol abuse disorder, and attention deficit disorder. Defendant presented a discharge summary from a hospital showing that from January 3, 2006, to January 20, 2006, he was in the hospital for a diagnosis of bipolar disorder, alcohol abuse, attention deficit disorder, obesity, and an allergy. Defendant also submitted a document indicated he had earned his high school diploma. At the conclusion of the hearing, the State argued, in relevant part, that " it is clear that this defendant shot at these two police officers intentionally." The State asked that the court find the police officer's injuries to be severe bodily injuries and that defendant be subject to consecutive sentences.
[¶11] In announcing defendant's sentence, the circuit court noted defendant's young age and his two prior delinquency adjudications which involved possession of a weapon. The court found that " defendant's version of events was rejected by the jury. It doesn't make any sense anyway that he was shooting up in the air or across the street or something and hit Officer Olson in the collar bone where the bullet apparently is still at and shot in the direction of the other officer." The circuit court later made the following statement:
" The jurors found the defendant did not have the intent to kill Officer Olson, but nonetheless, the shot hit him right up in the collar bone not far away from the face or head and not far away from other places that could have caused a whole lot more damage. There was a lot of damage caused as it was, but it could have been a whole lot worse. Fortunately for ...