People v. Montes , 2014 IL App (2d) 140485 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Montes, 2015 IL App (2d) 140485Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AUGUSTINE T. MONTES, Defendant-Appellant.
District & No. Second District
Docket No. 2-14-0485
Filed February 6, 2015
Held On appeal from the summary dismissal of defendant’s postconviction
(Note: This syllabus petition claiming actual innocence based on entrapment and
constitutes no part of the ineffective assistance of counsel arising from defendant’s convictions
opinion of the court but in absentia for attempted first-degree murder and aggravated
has been prepared by the discharge of a firearm, the appellate court affirmed defendant’s
Reporter of Decisions convictions and the summary dismissal of his postconviction petition,
for the convenience of since entrapment was not available as a defense where defendant
the reader.) denied committing that offense and defendant’s absence from the trial
precluded his counsel from meeting his obligation to discuss the
availability of a lesser-included-offense instruction with defendant
and whether there was a reasonable probability that submission of
such an instruction could change the result.
Decision Under Appeal from the Circuit Court of Kane County, No. 05-CF-2797; the
Review Hon. Robert K. Villa, Judge, presiding.
Judgment Affirmed.
Counsel on Matthew J. Haiduk, of Geneva, for appellant.
Appeal
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices McLaren and Birkett concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in absentia, defendant, Augustine T. Montes, was convicted of
attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). He was sentenced to 26 years’
imprisonment for attempted murder and a concurrent 10-year term for aggravated discharge
of a firearm. On direct appeal, we affirmed defendant’s conviction. People v. Montes, 2013
IL App (2d) 111132.
¶2 Thereafter, defendant, with assistance of counsel, filed a postconviction petition pursuant
to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)).
Defendant raised claims of actual innocence, based on entrapment, and ineffective assistance
of counsel. The trial court summarily dismissed the petition, and defendant appeals. For the
reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 We provide a summary of the trial evidence here; a more detailed recitation of the
evidence may be found in our prior decision. Montes, 2013 IL App (2d) 111132, ¶¶ 1-48.
Further, we again note that defendant was not present at his trial.
¶5 On November 22, 2005, at around 12:30 p.m., Julian Ramos was walking to his
girlfriend’s house in Aurora when he saw four people in a green Pontiac Bonneville pass
him. One person exited the vehicle, and Ramos began to run. At some point, he turned
around and saw someone about 35 to 40 feet away pointing a gun at him. The person wore a
black, hooded sweatshirt and was heavyset (approximately 230 pounds). Ramos saw a gun
and then turned around and heard shots fired. He screamed “I ain’t no King,” and he
continued running and climbed into a truck to hide.
¶6 At the time of the shooting, Blake Pannell was working for the FBI as an informant.
Pannell, who had committed several serious crimes and who was serving as the “enforcer”
for the Aurora Latin Kings street gang, testified that he was with defendant, Quentin Moore,
and Ruben Hernandez on the day of the shooting. Pannell testified that he was wearing a
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recording device given to him by the FBI. Moore drove the men in his green Pontiac
Bonneville, and they went to spray paint over graffiti that rival gangs had painted in Latin
King territory. According to Pannell, defendant noticed a man on foot (Ramos) whom he
believed to be a member of the Insane Deuces, a rival gang. The men began plotting how to
catch up with the man to shoot him; Pannell, however, testified that he was not plotting,
because he was working with the government. Moore parked in an alley so that defendant
could get out of the car and catch up with Ramos. Hernandez gave defendant the gun, and
Pannell, Moore, and Hernandez stayed in the car while defendant exited. When defendant
returned to the car, he related that, when Ramos noticed him coming with his hood up,
Ramos got scared and ran off. Defendant said that he knew exactly where Ramos was
heading, and he then instructed Moore on how they could drive to catch up with him.
Defendant wanted to get to a location and park, so that they could ambush Ramos when he
arrived.
¶7 Defendant wiped the gun with a towel, threw it on the backseat, and put the towel over it.
Pannell, sitting on the other side, reached over and, through the towel, pushed a button on the
gun to remove the clip; he dragged the clip out and stuffed it between the seat cushions.
Pannell explained that he did not know if a bullet was still in the gun’s chamber; by
removing the clip he removed any other bullets. He did so because he did not want anyone
killed. When they arrived at the second location, defendant grabbed the gun, put it in his
sweatshirt pocket, and exited the vehicle. Pannell saw defendant stand between two houses
until Ramos appeared.
¶8 At that point, Pannell’s cell phone, which was located in the same area as the gun clip,
began to ring. When Pannell reached to pick up his phone, he noticed that Hernandez was
looking back at him. Pannell thought that Hernandez saw the clip, so he grabbed it and said
“[defendant] doesn’t have the clip.” Hernandez told Pannell to go give it to defendant, in case
Ramos had a gun and tried to open fire on defendant. Pannell exited the car while Hernandez
began trying to call defendant to let him know that he did not have the clip. About the same
time, Ramos appeared, and defendant came out and fired at him. Pannell heard the gunshot
and saw defendant fire. Pannell, holding the clip, started running across the street toward
defendant, calling defendant’s name. Ramos was running away, screaming, “I’m not a King,
I’m not a King, I’m not a King.” Pannell met up with defendant and said to him, “you have
no clip, you have no clip,” and they ran back to the car.
¶9 When they got inside the car, defendant said, “I almost had him. I almost had him.”
Hernandez said to defendant, “you better finish this since he’s seen us. You better kill that
person.” They began driving to find Ramos, and defendant was going to “just gun him
down.” As they neared a busy street, they saw that Ramos had stopped traffic and was in the
middle of the street. Because there were several vehicles stopped on a major road, they
abandoned their pursuit of Ramos and left to hide. They went to a friend’s home where they
smoked marijuana, defendant showered, and they waited for time to pass. Later, Pannell was
dropped off at another friend’s house. He called his FBI contact and gave her the recording.
¶ 10 Portions of the recording were played for the jury, and a transcript was provided to the
jury to assist it while listening to the recording. Pannell identified voices on the recording.
For example, at one point someone on the recording, whom Pannell identified as defendant,
spotted Ramos and said “he’s a Dukie,” a derogatory slang word for an Insane Deuce.
Pannell identified a voice that said “Damn, then he’ll see my face” as defendant’s voice. He
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identified a voice that said “You want a bandana” as Hernandez’s. He also identified a voice
that said “You look like a bank robber” as his own. Pannell explained that, when defendant
got out of the car the second time, after originally seeing Ramos, he wore over his face a
black bandana that Hernandez had handed to him. Once he put it on, one could see only
defendant’s eyes and part of his forehead. Otherwise, defendant’s face just appeared black.
Pannell identified defendant’s voice as saying, “Take a left. I know exactly how to catch him
up ***.” Pannell identified and explained additional portions of the recording, including
when defendant exited the vehicle, the sound of the gunshot, the sound of his own running as
he got back into the car with defendant, and defendant saying “I had to bump that ‘nigga’ ”
(which means kill him), “it was all over for him,” “I was chasin’, chasing down the block,”
and “I kept hearin’ click, click, click.” Pannell explained that he could be heard yelling
defendant’s name (Augustine) and then Hernandez said “Come on hurry up. Give him the
clip, Give him the clip.” Then Pannell opened the door and started running, yelling
“Augustine” as he jumped out of the car. Pannell identified the point in the recording when
they pulled up at their friend’s house and exited the car, the sound of the car doors, and the
sound of defendant’s voice asking if he could take a quick shower. Pannell testified that he
weighed a little less than 135 pounds at the time of the incident. Defendant, in contrast, was a
“much bigger guy.”
¶ 11 The jury returned a verdict of guilty on both counts and signed a special interrogatory,
finding that defendant personally discharged the firearm. The court denied defendant’s
posttrial motions and sentenced him to 26 years’ imprisonment for attempted murder and 10
years’ imprisonment (concurrent) for aggravated discharge of a firearm. We affirmed,
holding that: (1) defendant was sufficiently admonished that trial could proceed in absentia if
he did not appear; (2) sufficient foundation existed to admit the audio recording; (3) the court
did not abuse its discretion in permitting the jury to use a transcript of the recording; and (4)
the evidence was sufficient to establish that defendant shot at Ramos. Montes, 2013 IL App
(2d) 111132, ¶¶ 57, 69, 74, 81.
¶ 12 On January 29, 2014, defendant, through counsel, filed his postconviction petition,
raising three issues. First, defendant raised a claim of actual innocence. He alleged that
evidence became available after trial that would have supported an entrapment defense.
Specifically, defendant attached an affidavit from Hernandez that essentially alleged that, in
contrast to his trial testimony, Pannell was the driving force behind the shooting. According
to Hernandez’s affidavit, Pannell, working as a government agent and using his influence as
gang “enforcer,” gave defendant a gun and told him to watch for rival gangs. Hernandez told
defendant that Pannell had said that he thought that defendant had not yet “proved himself”
and that defendant might be beaten or killed. When a man from another gang walked by,
Pannell “gesture[d]” to the group to follow; defendant left the car to pursue the man, but
subsequently returned when the man got away. According to Hernandez, “Pannell does or
says nothing to prevent the situation from escalating[,] but encouraged it.” They came across
the individual again and tried to park to let defendant out of the car. Hernandez turned around
and saw defendant trying to conceal the clip of ammunition in the seat cushions. When
defendant subsequently exited, Pannell noticed that defendant did not take the clip. To avoid
raising Pannell’s suspicions, Hernandez yelled at Pannell to take the clip to defendant.
Pannell left the car with the clip, and a single shot was fired. “I didn’t know if [defendant]
fired the shot ***.” According to Hernandez’s affidavit, Pannell “induced and incited” the
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incident by possessing a firearm and putting everyone in a position to commit a crime. “That
was Pannell[’s] intention from the beginning ***.” Pannell placed defendant “in a horrible
predicament” where backing out might have cost him his life. Further, Pannell played his role
as enforcer to the “extreme” by providing guns, participating in crimes, imposing
punishment, and “influencing violence.” Finally, Hernandez attested in the affidavit, “I was
unavailable at the time, but I’m available to testify if needed.”
¶ 13 In addition, defendant attached an affidavit from his trial attorney, Timothy Mahoney,
attesting that it was his understanding that Hernandez faced criminal charges in “several
cases” and was unavailable to be interviewed or called as a defense witness.
¶ 14 Defendant next alleged in his petition that trial counsel was ineffective for not discussing
with him his right to seek a lesser-included-offense jury instruction, specifically on the
offense of reckless discharge of a firearm (as a lesser included offense of aggravated
discharge of a firearm). Defendant alleged that the evidence supported the instruction, since
Ramos testified that he ran for a “good second” before hearing a single gunshot, and Ramos
did not know “what direction the shots were fired at him.” Defendant attached Mahoney’s
affidavit attesting that at no point prior to or during trial did he discuss with defendant the
possibility of asking for a lesser-included-offense jury instruction. Further, to counsel’s
knowledge, defendant was not informed by counsel or the court of his right to seek a jury
instruction on a lesser included offense.
¶ 15 Finally, defendant alleged that trial counsel was ineffective for not seeking on his behalf
a plea deal from the State.1
¶ 16 On April 29, 2014, the trial court summarily dismissed defendant’s postconviction
petition. Regarding defendant’s actual-innocence claim, the court found that: (1) the
affidavits failed to establish with supporting facts that Hernandez was unavailable such that
his testimony could be considered newly discovered; and (2) the trial evidence, even absent
Hernandez’s testimony, was such that defense counsel could have presented an argument that
defendant was ordered to act by an FBI informant, and therefore Hernandez’s testimony was
not new, noncumulative evidence that was so conclusive that it would probably change the
result on retrial. Regarding defendant’s ineffective-assistance claim premised on the
lesser-included-offense instruction, the court found that it failed because: (1) defendant
forfeited the issue by not raising it on direct appeal; (2) defendant failed to attach his own
affidavit asserting that he would have demanded the submission of a lesser-included-offense
instruction; and (3) defendant failed to establish that any error prejudiced him. Defendant
appeals.
¶ 17 II. ANALYSIS
¶ 18 “In a postconviction proceeding, the trial court does not redetermine a defendant’s
innocence or guilt, but instead examines constitutional issues which have escaped earlier
review.” People v. Jones, 399 Ill. App. 3d 341, 356 (2010). The postconviction setting does
not act as a substitute for or an addendum to a direct appeal. Id. At the first stage (as here) for
adjudicating a postconviction petition, the trial court considers, without input from the State,
whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)
1
Defendant abandons this claim on appeal and, therefore, we do not address it further.
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(West 2012). A claim is frivolous or patently without merit where it has no “arguable basis
either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacking an
arguable basis in law or in fact is one “based on an indisputably meritless legal theory” or a
fanciful factual allegation. Id. Where the petition’s allegations are contradicted by the record
or are fantastic or delusional, the petition should be dismissed. Id. at 16-17. We review de
novo the dismissal of a postconviction petition at the first stage. People v. Brown, 236 Ill. 2d
175, 184 (2010).
¶ 19 Defendant argues first that the trial court erroneously dismissed his actual-innocence
claim, because Hernandez’s affidavit supports an arguable entrapment defense. We disagree.
Defendant has forfeited an entrapment defense. See People v. Fleming, 50 Ill. 2d 141, 144
(1971) (an entrapment defense must be raised at trial or it is forfeited). Further, as discussed
below, the entrapment defense contemplates that a defendant was induced to act by a
government agent; therefore, the defense is unavailable to a defendant who denies
committing the offense. Id. Here, defendant did not list entrapment as a defense in his
discovery answers, nor did he appear at trial to admit to the shooting or to raise the
entrapment defense. Trial counsel did not, in defendant’s absence, raise entrapment as a
defense, nor could he without defendant’s consent, as the defense required defendant to
admit to the offense. Defendant has never raised an ineffective-assistance claim that trial
counsel failed to present an entrapment defense. On direct appeal, defendant did not raise
entrapment, and he has not alleged ineffectiveness by appellate counsel for failing to raise the
claim on direct appeal. Accordingly, we conclude that defendant’s attempt to raise
entrapment for the first time in a postconviction setting must fail. The entrapment defense is
forfeited. See also People v. Davis, 2014 IL 115595, ¶ 13 (in a postconviction setting, issues
that were raised and decided on direct appeal are barred by res judicata, while issues that
could have been raised on direct appeal, but were not, are forfeited).
¶ 20 We could end our analysis there. However, we suspect that defendant would respond that
he could not have raised the entrapment defense at trial, because the evidence supporting that
defense, i.e., Hernandez’s testimony, was unknown and unavailable at the time of trial. It is
purportedly for that reason that defendant seeks postconviction relief, styling his claim as one
of actual innocence based on newly discovered evidence supporting an entrapment defense.
For the following reasons, we conclude that, even if the entrapment defense was not
forfeited, defendant’s postconviction actual-innocence claim was nevertheless properly
dismissed as an indisputably meritless legal theory.
¶ 21 Postconviction petitioners may assert a claim of actual innocence only where the basis of
that claim stems from newly discovered evidence. People v. Ortiz, 235 Ill. 2d 319, 333
(2009). A court should grant relief only where the petitioner presents supporting evidence
that is new, material, noncumulative, and, critically, of a character so conclusive that it would
probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 84. Further:
“New means the evidence was discovered after trial and could not have been
discovered earlier through the exercise of due diligence. [Citation.] Material means
the evidence is relevant and probative of the petitioner’s innocence. [Citation.]
Noncumulative means the evidence adds to what the jury heard. [Citation.] And
conclusive means the evidence, when considered along with the trial evidence, would
probably lead to a different result. [Citation.]” Id. ¶ 96.
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An actual-innocence claim is “extraordinarily difficult to meet,” and courts of review rarely
grant postconviction relief. Id. ¶ 94 (noting that only three reported cases had granted
actual-innocence postconviction relief since 1996).
¶ 22 Finally, as to entrapment, the Criminal Code of 1961 provides:
“A person is not guilty of an offense if his or her conduct is incited or induced by
a public officer or employee, or agent of either, for the purpose of obtaining evidence
for the prosecution of that person. However, this Section is inapplicable if the person
was pre-disposed to commit the offense and the public officer or employee, or agent
of either, merely affords to that person the opportunity or facility for committing an
offense.” 720 ILCS 5/7-12 (West 2004).
Thus, to establish an entrapment defense, a defendant must show both that the State induced
him to commit the crime and that he or she was not already predisposed to commit it. People
v. Placek, 184 Ill. 2d 370, 380-81 (1998).
¶ 23 We first reject defendant’s assertion that the information in Hernandez’s affidavit is new.
Initially, we note that it is not clear that Hernandez’s testimony was unavailable at the time of
trial and could not have been discovered through due diligence. It is true that Hernandez’s
affidavit stated broadly that he was unavailable. However, neither Hernandez’s nor
Mahoney’s affidavit set forth facts establishing that Hernandez was unavailable. The
affidavits did not assert that Hernandez was a codefendant in this case. Mahoney’s affidavit
stated only that he understood that Hernandez faced charges in “several cases.” It did not
state that he tried to interview Hernandez and that, in fact, Hernandez would not speak with
him. Moreover, nowhere in his affidavit did Hernandez state that, if he had been called to
testify at defendant’s trial, he would have invoked his fifth-amendment rights, thus rendering
him unavailable.
¶ 24 In any event, we acknowledge that this is only the first stage of postconviction
proceedings. Therefore, even if we were to overlook the absence of facts supporting
unavailability and accept that Hernandez was unavailable at the time of defendant’s trial, it
remains that the factual basis for the alleged entrapment defense is not new.
“Usually, to qualify as new evidence, it is the facts comprising that evidence which
must be new and undiscovered as of trial, in spite of the exercise of due diligence.
Generally, evidence is not ‘newly discovered’ when it presents facts already known to
the defendant at or prior to trial, though the source of those facts may have been
unknown, unavailable, or uncooperative.” (Emphases added.) People v. Barnslater,
373 Ill. App. 3d 512, 523 (2007).
Here, we are not presented with a situation where the basis for the affirmative defense
remained undiscovered until after trial. See, e.g., People v. Alberts, 383 Ill. App. 3d 374, 385
(2008) (postconviction claim of actual innocence based on involuntary intoxication proper
where the law changed subsequent to the defendant’s trial, allowing for the defense to be
applied to unwarned side effects from prescribed medication); see also People v. Hoban,
2014 IL App (1st) 121540-U (actual-innocence claim proper where the defendant learned
after his conviction that he had psychotropic side effects from an allergy medication that he
was taking at the time of the crime). In contrast, defendant here knew prior to trial the facts
that he alleges would support an entrapment defense, i.e., that Pannell was an informant, that
Pannell gave him the gun, that Pannell encouraged the crime, and that he, defendant, was
fearful that he would be beaten or killed if he did not comply. Defendant focuses solely on
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the fact that certain evidence from Hernandez, arguably showing that he was entrapped, was
allegedly unavailable, but he ignores that he could have elected to appear at his own trial to
testify to his entrapment defense. Certainly, a defendant’s failure to take the stand cannot be
held against him. However, a postconviction actual-innocence claim requires new
information or evidence discovered after trial that could not have been discovered earlier
through the exercise of due diligence. As defendant knew the necessary facts prior to trial,
the information in Hernandez’s affidavit might have lent additional support to that claim, but
it is not new.
¶ 25 Next, the information in Hernandez’s affidavit is not conclusive such that, when
considered along with the trial evidence, it would probably lead to a different result. If
introduced at trial, Hernandez’s testimony would have cast doubt on the version of events to
which Pannell testified. Hernandez’s testimony is not conclusive evidence of defendant’s
innocence; rather, it simply contradicts trial testimony. See People v. Collier, 387 Ill. App. 3d
630, 637 (2008) (noting that evidence that merely contradicts or impeaches a witness is
typically not of such a conclusive nature so as to justify postconviction relief and, moreover,
that the hallmark of actual innocence is a defendant’s total vindication or exoneration).
Further, even with Hernandez’s testimony that Pannell induced defendant to act, the
postconviction petition contained no affidavit or even allegations that would establish the
second half of the entrapment defense, i.e., that defendant, a Latin Kings gang member, was
not predisposed to commit the crime. Finally, it is critical to again note that entrapment is
unavailable as a defense where the defendant denies committing the offense. Fleming, 50 Ill.
2d at 144. Here, as defendant did not admit to the crime at trial, his postconviction petition
failed to allege or attest that he committed the shooting, and Hernandez’s affidavit stated
only that he did not know if defendant was the shooter, defendant is precluded from raising
entrapment as a defense. Accordingly, as it is indisputably meritless, the postconviction
claim of actual innocence based on entrapment was properly dismissed.
¶ 26 Defendant challenges next the dismissal of his claim that trial counsel was ineffective for
failing to discuss whether he, defendant, wanted the jury instructed on the lesser included
offense of reckless discharge of a firearm. At the first stage of postconviction proceedings, an
ineffective-assistance-of-counsel claim may not be dismissed if it is arguable that: (1)
counsel’s performance fell below an objective standard of reasonableness (performance
prong); and (2) the defendant was prejudiced (prejudice prong). Hodges, 234 Ill. 2d at 17
(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). The performance prong
requires us to consider whether, applying a strong presumption that counsel’s representation
fell within the wide range of reasonable assistance (see Strickland, 466 U.S. at 689), there is
an arguable basis to find that counsel’s performance was “objectively unreasonable under
prevailing professional norms.” (People v. Cathey, 2012 IL 111746, ¶ 23). The prejudice
prong requires us to ask whether there is an arguable basis to conclude that there exists a
reasonable probability that, but for counsel’s errors, the result of the proceeding would have
been different. Id. The failure to satisfy either prong will defeat the ineffective-assistance
claim. People v. Williams, 193 Ill. 2d 306, 375 (2000).
¶ 27 Here, defendant correctly notes that only he could decide whether to submit an
instruction on a lesser charge. See People v. Brocksmith, 162 Ill. 2d 224, 229-30 (1994) (it is
the defendant’s decision, at the close of the evidence, whether to submit an instruction on a
lesser charge). It is for that very reason that defendant’s absence from trial leads us to
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conclude that there is no arguable basis to find that counsel’s performance fell below
prevailing professional norms. Counsel is accused of ineffectiveness for failing to discuss
with defendant whether to submit to the jury a lesser-included-offense instruction, but
defendant was not present at trial for counsel to do so. Counsel could not submit a
lesser-included-offense instruction without the opportunity to discuss it with defendant and
without defendant’s consent. Id. at 230. Thus, by absenting himself from trial, defendant
precluded counsel from fulfilling the obligation to discuss with him the availability of a
lesser-included-offense instruction.
¶ 28 Further, defendant’s postconviction claim also fails to establish an arguable basis for
concluding that there exists a reasonable probability that, if counsel had discussed with him a
lesser-included-offense instruction, the result of the proceeding would have been different.
Defendant did not allege that, if counsel had done so, defendant would have elected to submit
the instruction. Accordingly, defendant’s postconviction petition was properly dismissed.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 31 Affirmed.
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