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People v. Ramirez

Court of Appeals of Illinois, First District, Second Division

December 19, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DANIEL RAMIREZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois. No. 11 CR 14064 Honorable Matthew E. Coghlan, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Justices Pucinski and Hyman concurred in the judgment and opinion.

          OPINION

          MASON JUSTICE.

         ¶ 1 This case returns to us for the second time following a supervisory order from the supreme court directing us to vacate our judgment in People v. Ramirez, No. 1-13-0022 (Aug. 22, 2016) (unpublished summary order under Supreme Court Rule 23(c)), and reconsider in light of People v. Veach, 2017 IL 120649. For the reasons that follow, we again affirm Ramirez's conviction.

         ¶ 2 BACKGROUND

         ¶ 3 Following a 2012 jury trial, defendant Daniel Ramirez was convicted of four counts of attempted first degree murder and sentenced to four concurrent terms of 40 years' imprisonment. We set forth the evidence in detail in People v. Ramirez, 2015 IL App (1st) 130022, ¶¶ 4-10, and repeat only that necessary to address the issues pertinent to the supervisory order.

         ¶ 4 On August 9, 2011, at approximately 3:30 p.m., shortly after the students at a nearby high school were dismissed, Ramirez fired multiple shots into a green van driving by the school. Immediately before the shooting, Ramirez was standing on a street corner with a group of people (one of whom provided Ramirez with the gun he used to shoot at the van) who were displaying gang signs and shouting gang slogans at the occupants of the green van, who retorted with slogans of their own. However, in his presentence investigation report, Ramirez denied belonging to any gangs himself.

         ¶ 5 At sentencing, the trial court stated:

"The most aggravating facts in the case are the facts. The defendant opens up with a gun on a van full of four other kids. And he's lucky that none of them died. *** It's also senseless. The defendant sits here and says he's not guilty which I certainly do not believe. These witnesses who came *** knew him. His identity is not an issue. The evidence was overwhelming. So he continues not to take responsibility for his actions. *** If he hadn't been involved in the gangs, he may very well have *** gotten a job, been a productive member of society."

         ¶ 6 Ramirez limited his arguments on direct appeal to errors in sentencing, alleging that the trial court (1) improperly considered the use of a firearm when such use was already the subject of a mandatory firearm enhancement and (2) erroneously relied on an aggravating factor- Ramirez's gang membership-that was not in evidence. Ramirez acknowledged that these issues were forfeited, as he failed to raise them at either the sentencing hearing or the motion to reconsider sentence, but in three sentences at the end of his brief, he asked us to review for plain error. Ramirez did not specify under which prong of the plain error doctrine he was seeking review but cited People v. James, 255 Ill.App.3d 516, 531 (1993), where the court held that consideration of an improper aggravating factor during sentencing could implicate the second prong of the plain error doctrine.

         ¶ 7 We held that Ramirez had forfeited plain error review of his sentence and that the alleged sentencing errors identified by Ramirez did not automatically constitute structural error under the second prong. Ramirez, 2015 IL App (1st) 130022, ¶¶ 25-27. In the absence of any argument as to how the court's error was so egregious as to deprive Ramirez of a fair sentencing hearing, we declined to conduct a plain error analysis. Id. ¶ 28.

         ¶ 8 In a petition for rehearing (filed by different counsel), Ramirez developed his plain error argument and alleged that original appellate counsel was ineffective for failing to do so. We denied the petition for rehearing on May 27, 2015, but modified our opinion to clarify that we were not suggesting that consideration of an improper sentencing factor could never affect the fairness of a sentencing hearing and implicate the second prong of the plain error doctrine. Id. ¶ 27.

         ¶ 9 Ramirez then appealed to the supreme court, which issued a supervisory order dated May 25, 2016. People v. Ramirez, No. 119467 (Ill. May 25, 2016) (supervisory order). The court directed us to reconsider our judgment in light of People v. Clark, 2016 IL 118845, ¶¶ 45-46, which had been decided in the interim and in which the court held that, for purposes of second-prong plain error review, errors affecting the fairness of trial were not necessarily limited to the six structural errors identified by the United States Supreme Court. In our order of August 22, 2016, we determined that Clark did not change the result, given that the basis of our holding was Ramirez's failure to develop his plain error argument in the first place. We further acknowledged Ramirez's argument in his petition for rehearing that his appellate counsel was ineffective for failing to properly argue plain error but held that this argument was better suited for a postconviction petition.

         ¶ 10 Ramirez petitioned for rehearing from our August 22, 2016, order and, upon denial of his petition, sought review in the supreme court. On September 27, 2017, the supreme court again directed us to reconsider our holding "on the issue of whether defendant's ineffective assistance of counsel claim may be properly considered on direct appeal" in light of People v. ...


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