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People v. Gallano

Court of Appeals of Illinois, First District, Sixth Division

December 13, 2019

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Timothy GALLANO, Defendant-Appellant.

          

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          Appeal from the Circuit Court of Cook County. No. 02 CR 5763 Honorable Luciano Panici, Judge, presiding.

          James E. Chadd, Patricia Mysza, and Daniel T. Mallon, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago ( Alan J. Spellberg and Sara McGann, Assistant State's Attorneys, of counsel), for the People.

         JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

         OPINION

         HARRIS, JUSTICE.

         ¶ 1 Defendant, Timothy Gallano, appeals from the order of the circuit court dismissing, on the State's motion, his petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)). On appeal, defendant does not argue that his petition has substantive merit. Instead, he argues that postconviction counsel failed to comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) by failing to amend his petition to include notarized affidavits from two potential witnesses. We affirm.

         ¶ 2 I. JURISDICTION

         ¶ 3 In April 2009, defendant filed a postconviction petition. The State filed a motion to dismiss the petition in September 2015. The circuit court granted the State's motion and dismissed the petition on February 26, 2016. Defendant filed his notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017) governing appeals from a final judgment in a postconviction proceeding.

         ¶ 4 II. BACKGROUND

         ¶ 5 Following a jury trial, defendant was found guilty of the 1999 first degree murder of Stacy Bravo and concealment of her homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. We reversed and remanded for a new trial based on an error that occurred during jury deliberations. People v. Gallano, 354 Ill.App.3d 941, 290 Ill.Dec. 640, 821 N.E.2d 1214 (2004). On remand, a second jury found defendant guilty of the same offenses, and he was given the same sentences. We affirmed the convictions. People v. Gallano, No. 1-06-1189, 377 Ill.App.3d 1141, 352 Ill.Dec. 146-953 N.E.2d 82 (2007) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed an unsuccessful pro se petition to vacate the conviction pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), and we affirmed on appeal, allowing appellate counsel leave to withdraw.[1] People v. Gallano, No. 1-10-3370 (2012) (unpublished summary order under Illinois Supreme Court Rule 23(c)). In April 2009, defendant filed the pro se petition for postconviction relief at issue here.

         ¶ 6 The evidence underlying defendant's convictions is adequately set forth in our order affirming defendant's convictions after remand ( Gallano, No. 1-06-1189), and we set forth only the evidence and ...


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