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People v. Carrizoza

Court of Appeals of Illinois, Third District

March 20, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSE A. CARRIZOZA, Defendant-Appellant.

         Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, Appeal No. 3-16-0051 Circuit No. 08-CF-467 Honorable John L. Hauptman, Judge, Presiding.

          JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice McDade concurred in the judgment and opinion.

          OPINION

          O'BRIEN JUSTICE.

         ¶ 1 Defendant, Jose A. Carrizoza, appeals the denial of his postconviction petition, alleging that the case should be remanded for further postconviction proceedings where counsel filed a Rule 604(d) certificate instead of a Rule 651(c) certificate and failed to amend defendant' s pro se petition See Ill. S.Ct. R. 604(d) (eff. Dec. 3, 2015); R. 651(c) (eff. Feb. 6, 2013). We reverse and remand with directions.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2008)). Defendant filed a motion to suppress, and a hearing was held. The evidence presented at the hearing established that Deputy Douglas Wade was working with the Whiteside County Sheriff's Department drug interdiction detail and observed defendant approach a stop sign in a truck and fail to signal continuously for 200 feet prior to stopping at the stop sign, in violation of section 11-804 of the Illinois Vehicle Code (625 ILCS 5/11-804 (West 2008)). Wade then radioed Sergeant Kristopher Schmidt about the violation. Schmidt then effectuated a traffic stop. During the stop, Schmidt called Deputy Mike Boucher and his canine, Pico. Pico performed a free-air sniff and showed a positive indication to the presence of a controlled substance near the passenger side tire.

         ¶ 4 After Pico alerted, Schmidt asked defendant if he had any contraband, and defendant said that he did not. Defendant permitted Schmidt and Boucher to search his truck. Upon the initial search, they discovered that the truck's bolts, molding, and carpet appeared to have been removed and replaced and did not fit properly. Chief Deputy Larry Van Dyke searched the bed of the truck and took the spare tire to an auto body shop to see if there was anything hidden inside it. Van Dyke thought the tire felt heavier than it should.

         ¶ 5 Schmidt read defendant his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) but told him he was not under arrest. Schmidt asked defendant if he would follow him to the auto body shop so they could continue the search. Defendant drove his truck to the auto body shop. At the auto body shop, it was discovered that a toolbox in the bed of the truck had a hidden compartment that contained "six kilos of cocaine individually packaged." Defendant was placed under arrest. After allowing the parties to file written arguments, the court denied the motion to suppress.

         ¶ 6 Defendant entered an open plea. After a sentencing hearing was held on May 13, 2010, the court sentenced defendant to 25 years' imprisonment with 3 years' mandatory supervised release. Defendant did not directly appeal.

         ¶ 7 On June 30, 2014, defendant filed a pro se postconviction petition. The postconviction petition, which is the subject of this appeal, stated:

"I *** was advised by [my trial attorney] to put in post-conviction petition. She advise[d] me that the Whiteside County, Police, and County Sheriff's testimonies were false, and the case was mishandle[d]. The search, seizure was done improperly and evidence was mis-withheld. I believe my time for the charge was unjustly."

         Defendant also asked for counsel to be appointed.

         ¶ 8 The court allowed the postconviction petition to proceed to the second stage and appointed counsel. Postconviction counsel did not amend the petition but filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015), stating:

"1. I have consulted with the Defendant in this cause in person or by mail to ascertain the Defendant's contentions of error in the entry of the plea of ...

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