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People v. Pabello

Court of Appeals of Illinois, Second District

December 9, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BENJAMIN PABELLO, Defendant-Appellant.

          Appeal from the Circuit Court of Lake County. No. 11-CF-80 Honorable Christopher R. Stride, Judge, Presiding.

          Attorneys for Appellant: James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of State Appellate Defender's Office, of Ottawa, for appellant.

          Attorneys for Appellee: Michel G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.

          OPINION

          HUTCHINSON JUSTICE

         ¶ 1 Defendant, Benjamin Pabello, appeals from the judgment of the circuit court of Lake County denying his postconviction petition following a third-stage hearing. Because postconviction counsel provided reasonable assistance, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was convicted in the circuit court of Lake County of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)). We affirmed. See People v. Pabello, 2014 IL App (2d) 120927-U.

         ¶ 4 Defendant then filed a pro se postconviction petition. The trial court advanced the petition to the second stage and appointed counsel.

         ¶ 5 Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff July 1, 2017). Counsel certified that he consulted with defendant, examined the record, and amended the pro se petition to the extent necessary to adequately present defendant's claims.

         ¶ 6 Counsel also filed a supplemental postconviction petition, alleging that trial counsel was ineffective for failing to file a motion to suppress defendant's statements to the police. In that regard, counsel asserted that defendant's Miranda waiver was invalid in light of (1) defendant's lack of understanding of English and (2) defendant's lack of education. Defendant's supporting affidavit averred, among other things, that he attended school only to the fifth grade.

         ¶ 7 The State agreed to proceed to a third-stage hearing. The following facts were established at the hearing. According to defendant, he was born in Mexico and lived there until he was 22 years old. Spanish was the only language spoken in his home. He completed the sixth grade. Spanish was the only language used in his school.

         ¶ 8 Defendant moved to the United States when he was 22 years old. While here, he never formally studied English as a second language. Defendant worked mostly in landscaping, where he spoke only Spanish.

         ¶ 9 According to defendant, during his interrogation the officers spoke only English. Although a female officer tried to talk to him in Spanish, he did not understand her. When defendant asked for an interpreter, the officers told him that none was available.

         ¶ 10 On cross-examination, defendant admitted that, after he was able to learn "a little bit of English," he was hired to work at a gas station. That job included working the cash register on the night shift but did not require him to speak English. When customers ...


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