Court of Appeals of Illinois, First District, Second Division
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.
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1-13-0022 (Aug. 22, 2016) (unpublished summary order under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.
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.
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
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. ...