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People v. Gallano

Court of Appeals of Illinois, First District, Sixth Division

December 13, 2019

TIMOTHY GALLANO, Defendant-Appellant.

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

          Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Daniel T. Mallon, 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 People.

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



         ¶ 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 (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 (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 procedural history necessary for an understanding of this appeal.

         ¶ 7 The evidence presented at the first and second trials was substantially similar. The State presented evidence that Bravo disappeared in 1999. Defendant was Bravo's boyfriend and told her family that Bravo went to a party with a girlfriend and never returned. At the time, defendant was living in Jack Moretti's house. In 2002, Moretti gave a police detective permission to search his home. On the basement floor, police found human blood that matched the DNA of Bravo's parents. Police took defendant into custody and accompanied him to Arlene Bonta's farm, where they recovered a 55 gallon plastic drum Bonta had been storing since 1999 at defendant's request. Bravo's body was in the drum, covered with concrete and motorcycle parts. Bravo had been shot in the head five times and had a contact shot to the back of her head. From inside Bravo's skull, a pathologist recovered two pieces of lead and five pieces of jacketing, all from the same firearm.

         ¶ 8 Following defendant's arrest, he told Doug Hoglund, deputy chief of the Blue Island Police Department, that he and Bravo were living at Moretti's home in September 1999. One morning, Bravo argued with defendant and pointed a gun at him. Defendant took the gun away and shot Bravo in the head more than once. Moretti came out of the bedroom where he had been sleeping, and he and defendant placed Bravo's body in the trunk of her car. They later put Bravo's body in a 55 gallon drum, covering it with cement and motorcycle parts, and defendant took the barrel to Bonta's farm.

         ¶ 9 In a videotaped interview, defendant told Assistant State's Attorney Terrence Reilly that Bravo yelled and pointed a gun at him, he tried to take the gun, and it went off. The next thing he remembered was Moretti tapping him on the shoulder. Reilly was also present for Moretti's videotaped statement, in which Moretti stated the gun used in the shooting was ...

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