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People v. Papaleo

Court of Appeals of Illinois, First District, Sixth Division

December 23, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
PETER PAPALEO, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 15617 Honorable Colleen Ann Hyland, Judge Presiding.

          JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.

          OPINION

          DELORT JUSTICE.

         ¶1 Defendant Peter Papaleo appeals from the first stage dismissal of his petition for relief under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2012). On appeal, defendant contends that his petition stated the gist of a claim for ineffective assistance of appellate counsel. We affirm.

         ¶2 BACKGROUND

         ¶3 On April 27, 2007, the State commenced two separate special grand jury proceedings through which it sought true bills of indictment against defendant for numerous sex offenses that he allegedly committed against his daughter, G.G. The State presented testimony from Detective Rita Mendez during both proceedings.

         ¶4 During the first grand jury proceeding (special grand jury (SGJ) No. 2589), Detective Mendez testified that she was assigned to investigate an allegation of sexual assault committed against G.G. She "learn[ed]" that: (1) defendant was G.G.'s biological father, (2) defendant was born in 1963, and (3) G.G. was born in 2000. In addition, she learned that defendant "inserted his penis into [G.G.'s] mouth" on March 16, 2007. Furthermore, she testified that defendant made a written statement admitting that he put his penis in G.G.'s mouth on two occasions. The grand jury returned a true bill of indictment, leading to the initiation of case No. 07 CR 9559.

         ¶5 During the second grand jury proceeding (SGJ No. 2590), Detective Mendez testified that she "learn[ed]" that defendant rubbed his penis against G.G. buttocks and inserted his penis into G.G.'s mouth, vagina, and anus. She also "learn[ed]" that G.G complained of pain in her rectum and blood in her urine. In addition, the prosecutor asked Detective Mendez, "[d]id you learn that a medical examination revealed trauma to [G.G.'s] vagina, a torn hymen, vaginal infection, and a cyst in her vaginal canal." Detective Mendez responded, "[y]es." Detective Mendez also stated that defendant made a written statement admitting that he placed his penis in G.G.'s mouth on two occasions. After this testimony, the grand jury returned a true bill of indictment, leading to the initiation of case No. 07 CR 9560.

         ¶6 On May 3, 2010, defendant filed a motion to suppress in case No. 07 CR 9559 and case No. 07 CR 9560. In addition, defendant filed a motion to dismiss in case No. 07 CR 9560. The record does not contain a copy of the motion to dismiss. However, in a subsequent motion to dismiss which is contained in the record, defendant explained that his original May 3, 2010 motion to dismiss was "based on misrepresentations made to the Grand Jury by the State and their witness, Detective Mendez."

         ¶7 Defendant's motion to suppress and motion to dismiss were scheduled to be heard on August 2, 2010. On that day, however, Detective Mendez was unavailable. The court heard testimony from a police officer regarding the motion to suppress and continued the motion to suppress and the motion to dismiss case No. 07 CR 9560 to August 30, 2010.

         ¶8 On August 27, 2010, the State again convened a grand jury. The State sought an indictment against defendant for criminal sexual assault against G.G. The prosecutor explicitly noted, "[t]his is a reindictment of Case Nos. 07[ ]CR-9559 and 07[ ]CR-9560" and explained that the purpose of the reindictment was "to correct the record." The State then presented testimony from Cook County sheriff's police department detective Cameron Pon.

         ¶9 Detective Pon testified he was assigned to investigate a sexual assault that defendant allegedly committed against G.G between January 1, 2005 and March 31, 2007. During the course of the investigation, he learned that defendant was G.G.'s father and that during the relevant time period, G.G. was under age 13 and defendant was over age 17. In addition, Detective Pon testified that his investigation revealed that during the relevant time period, defendant made contact with his penis on G.G.'s vagina, anus, mouth, and buttocks. Detective Pon noted that defendant produced a written statement admitting that he made contact with his penis on G.G.'s buttocks. The State did not elicit any testimony from Detective Pon regarding G.G.'s hymen. The grand jury returned an indictment charging defendant with four counts of predatory criminal sexual assault. 720 ILCS 5/12-14.1(a)(1) (West 2010). The 2010 indictment generated criminal case No. 10 CR 15617.

         ¶10 On August 30, 2010, the court held a pre-trial hearing on case No. 10 CR 15617. The prosecutor indicated that the State intended to nol-pros the 2007 indictments once it obtained a transcript of the 2010 grand jury proceeding. The record does not indicate when (or if) the State nol-prossed the 2007 indictments.

         ¶11 On September 17, 2010, defendant filed a motion to dismiss the 2010 indictment. Defendant stated that he was indicted for sexually assaulting G.G. in 2007 in case Nos. 07 CR 9559 and 9560 and that at the time of his reindictment in 2010, there was a pending motion to dismiss in case No. 07 CR 9560 that he had filed and upon which the trial court had yet to rule. According to defendant, the 2007 motion was based on a claim that Detective Mendez's testimony that G.G.'s medical examination revealed a torn hymen was false. Defendant argued that the State was aware of the alleged misrepresentation ...


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