Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 94 CR 26967(03)
The Honorable Evelyn B. Clay, Judge, presiding.
Attorneys for Appellant James E. Chadd, Patricia Mysza, and
Michael Gomez, of State Appellate Defender’s Office, of
Chicago, for appellant.
Attorneys for Appellee Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg and Sara McGann,
Assistant State’s Attorneys, of counsel), for the
JUSTICE GORDON delivered the judgment of the court, with
opinion. Justices McBride and Justice Reyes concurred in the
judgment and opinion.
1 Defendant, Mitchell Morrow, was convicted after a jury
trial of murder and armed robbery and sentenced to concurrent
terms of 60 years for murder and 20 years for armed robbery.
On appeal, this court vacated his conviction for armed
2 In this appeal, defendant asks this court to reverse an
order denying him leave to file a successive postconviction
petition. In his successive petition, defendant claims that
his appellate counsel was ineffective for failing to ask this
court to remand for resentencing after we vacated his armed
robbery conviction. For the following reasons, we affirm the
trial court's denial.
4 This court has set forth the evidence at defendant's
trial in detail on two prior occasions, and we incorporate
those discussions here by reference. People v.
Morrow, 303 Ill.App.3d 671, 674-675 (1999); People
v. Morrow, 2013 IL App. (1st) 121316, ¶¶ 5-43.
In sum, the State's evidence at trial established that
defendant was a pimp and that he shot a customer after a
physical altercation broke out between the customer and two
prostitutes inside the customer's vehicle. The fistfight
occurred because the customer realized that one of the
prostitutes was also attempting to take his wallet. After the
murder, the two prostitutes, defendant, and another pimp
split equally the $160 in the customer's wallet. On
appeal, this court reversed defendant's armed robbery
conviction, finding that there was no evidence that defendant
intended to rob the customer; rather, defendant had
approached the customer's vehicle in response to the
altercation. Morrow, 303 Ill.App.3d at 683-84.
5 We describe in detail defendant's sentencing process
since defendant claims on this appeal that the sentencing
judge was unduly influenced by the subsequently vacated armed
robbery conviction when it sentenced defendant to 60 years
6 At the time of his sentencing, the death penalty was still
available in Illinois, and the State sought it for defendant.
On April 15, 1996, defendant waived his right to a jury for
his death penalty hearing, which was subsequently held on May
28, 1996. During the first stage of the death penalty
hearing, the State introduced testimony about defendant's
age and introduced a certified copy of his birth certificate,
which established that defendant was 26 at the time of the
offense. After listening to arguments by counsel for both
sides, the trial court found defendant eligible "for a
capital sentencing hearing under Illinois law, "
"THE COURT: Considering the arguments of counsel,
[defendant's counsel], considering the law that exists in
this area, especially the law of accountability, I think that
[defendant's] acts are well within the felony murder
The facts here I agree do not impart the classic theory of
murder in the course of another felony, but I will not impugn
the jury verdict finding [defendant] guilty of murder and
armed robbery nor will I retreat from the law in this area,
the law of accountability.
Suffice it to say I find that there is sufficient conduct to
prove by the prosecution that [defendant] is guilty of first
degree murder and is accountable for the taking of the
Based on the arguments made to me, I find beyond a reasonable
doubt that the defendant is eligible for a capital sentencing
hearing under Illinois law.
parties ready to proceed in aggravation and mitigation at
this time?" The trial court then proceeded to the second
stage, where it considered factors in aggravation and
7 The State called three witnesses in aggravation. First,
Dennis Dobson, a Chicago police officer, testified that, on
October 23, 1988, when he and his partner attempted to arrest
a woman for prostitution, defendant started yelling
obscenities at the officers. After the officers told him to
be quiet, defendant responded "f*** you, I will kick
your a***." Defendant was then arrested for disorderly
conduct. However, defendant's case was subsequently
8 Ronald Behling, a Chicago police officer, testified that,
on February 7, 1994, he also arrested defendant. Defendant
had been walking on the sidewalk, when he observed the
officer and subsequently dropped a plastic bag containing
four foil packets of suspected heroin. After his arrest,
defendant informed the officer that the substance was
"not real, " that "he had made them up to sell
again, " that it was "only Actifed, " and that
"he knew he could be killed if he got caught selling the
stuff but he needed the money."
9 John O'Shea, a Chicago police officer, testified that,
on November 8, 1992, defendant kicked and punched him as
O'Shea attempted to arrest a prostitute. The officer held
out his badge and identification in his hand and informed
defendant that he was a police officer, but defendant
responded "f*** you, I want my woman back, *** give her
to me." After other officers arrived, O'Shea
arrested both defendant and the prostitute. At the police
station, when O'Shea tried to handcuff defendant to the
wall, defendant punched O'Shea repeatedly in the face and
side. Injuries to O'Shea's side, face, and hands
required O'Shea to seek medical treatment at a hospital.
Defendant also had injuries and was transported to a
hospital, where he received multiple stitches.
10 In mitigation, defendant called five witnesses. First, the
defense called Lamar Thomas, defendant's first cousin,
who testified that he had known defendant his whole life.
Thomas had worked as a police officer and detective for the
Chicago Police Department for 26 years and was currently
recovering from an illness. During the three years prior to
defendant's incarceration, Thomas visited with defendant
usually once a month at holidays or family affairs. Thomas
testified that defendant was "always a very polite young
man, " and that Thomas had "never seen him do
anything untoward." On cross-examination, Thomas
admitted that he was unaware that defendant was a pimp.
11 Daisy McLendon, defendant's sister, testified that she
had been employed as a medical assistant at a hospital for
over 10 years and that she was also an ordained minister. As
a minister, she had met with defendant on a weekly basis
during the last two or three years. McLendon testified that,
"since last May, following the incident, he has really
made a commitment to the Lord of his life. And he has no
desire to be affiliated with any gang or any such thing of
that sort." She further testified that "my brother
while being held here at Cook County as a prisoner was
severely attacked and beaten nearly to death. He had several
facial fractures and his face was severely swollen. And this
was a direct result of denying being a part of any
gang." McLendon testified that defendant was
"always very kind" and "helpful, " but
she was not aware prior to his arrest that he was a pimp.
12 Josie Bradley, defendant's aunt, testified that,
during the two or three years prior to defendant's
arrest, she encountered defendant at family gatherings, as
well as two or three times a month. Bradley described
defendant as "a kind, soft spoken young man."
13 Ida Mae Jones, defendant's mother, testified that
defendant was "always lovely, " never
disrespectful, and was helpful around the house. Tracy
Morrow, defendant's sister, testified that he was a
"loving" brother and "always around."
14 After both sides rested, the trial court heard arguments
from counsel. The State asked the trial court to impose the
same death penalty that defendant had "imposed on [the
victim] when he killed him, for a senseless, [sic]
no reason." In contrast, defense counsel emphasized that
defendant had "only two misdemeanors, one for pimping
and one for disorderly conduct." The trial court found:
"Based on the arguments presented to me; based on
Illinois law, confine [sic] Illinois law to the
evidence, I find that the defendant *** is 28 year[s] old; he
was 26 when the acted is [sic] resulted in the death
of the victim.
I find although he has had his contacts, brushes with the law
in the past, he has no significant history, prior criminal
activity as contemplated by the Illinois Death Penalty Act.
I find therefore that there is sufficient mitigation for this
Court to be precluded from imposing the death sentence.
Defendant will be sentenced under ordinary Illinois criminal
15 Both counsel indicated that they had nothing further to
present in mitigation or aggravation. The State then asked
the trial court to impose consecutive rather than concurrent
sentences. After listening to argument from both sides, the
trial court observed, in aggravation, that defendant's
"acts" were "senseless" and
"vicious." "An unarmed man whose only mistake
was to in a rather pathetic way look[ ] for sex for hire, was
gunned down because he attempted to rightly stop a prostitute
or prostitutes from taking his property, his wallet."
16 In mitigation, the trial court observed:
"In mitigation, I will agree with your attorney,
[defendant], that I don't think as you charged the
[victim's] car, you had formed a premeditated intent to
take the life of the victim ***, however when you reached the
window, you realized that he, the victim, was resisting,
fighting the prostitutes; you shot him not once but at least
twice, inflicting a fatal chest wound.
There has to be a message of deterrence, [defendant], and you
at an age, in your late 20's, must be sentenced so that
you will no longer be a threat to society when you are
For the first degree murder of the unfortunate victim, ***, I
sentence you to 60 years in the Illinois Department of
For the armed robbery of [the victim], I sentence you to a
concurrent term of 20 years in the Illinois Department of
You will serve 60 years in the Illinois Department of
Corrections, sir, and you can be thankful that some day you
will have a chance to walk about in society, unlike [the]
the trial court rejected the State's request for both the
death penalty and consecutive sentences. On May 28, 1996, the
trial court entered an "Order of Sentence and
Commitment" to IDOC stating that defendant was sentenced
to 60 years on count I, for first degree murder, which was to