People v. Orasco ( 2014 )

2014 IL App (3d) 120633Opinion filed June 23, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-12-0633
v. ) Circuit No. 09-CF-1536
)
JASON ORASCO, ) Honorable
) Amy Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Lytton and Justice Holdridge concurred in the judgment with opinion.
OPINION
¶1 A Will County jury found defendant, Jason Orasco, guilty of three counts of first degree
murder (720 ILCS 5/9-1(a)(1)-(3) (West 2008)), one count of attempted first degree murder (720
ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), one count of home invasion (720 ILCS 5/12-11(a)(2)
(West 2008)), one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West
2008)), and one count of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)). The three first
degree murder counts merged together, and the aggravated battery merged with the attempted
first degree murder. The court sentenced defendant to consecutive sentences of 50 years'
imprisonment for first degree murder and 25 years for attempted first degree murder, to be
served concurrently with sentences of 20 years for home invasion and 25 years for armed
robbery. Defendant appeals, arguing that his trial counsel was ineffective for failing to instruct
the jury on the affirmative defense of compulsion. The State argues that counsel's decision was
strategic and, alternatively, that it did not prejudice defendant's defense. In addition, the State
claims that defendant's sentence is void because all of defendant's sentences must be served
consecutively under section 5-8-4(d)(1) of the Unified Code of Corrections (Code) (730 ILCS
5/5-8-4(d)(1) (West 2008)). We affirm defendant's convictions, vacate his sentences, and
remand for resentencing.
¶2 FACTS
¶3 Defendant was indicted on three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3)
(West 2008)) (counts I, II, and III); one count of attempted first degree murder (720 ILCS 5/8-
4(a), 9-1(a)(1) (West 2008)) (count IV); one count of aggravated battery with a firearm (720
ILCS 5/12-4.2(a)(1) (West 2008)) (count V); two counts of home invasion (720 ILCS 5/12-
11(a)(2), (5) (West 2008)) (counts VI and VII); and one count of armed robbery (720 ILCS 5/18-
2(a)(2) (West 2008)) (count VIII). The cause proceeded to a jury trial.
¶4 At trial, Ashley Hill testified that she, defendant, Matthew Edwards, and Mary Vetor
were at Vetor's house on the night of July 6, 2009. Edwards commented that the group should
rob somebody to earn some money. Defendant said he knew someone they could rob, a man
named Josh Terdic, whom defendant had known for several years. Defendant explained that
Terdic had money and drugs at an apartment he shared with his girlfriend in Channahon.
Defendant said that Terdic worked construction and told the group his work schedule. The group
decided to drive to Terdic's apartment building and wait outside until he left for work, when they
would beat him up and take whatever money he was carrying.
¶5 According to Hill, after the group decided to rob Terdic, Vetor gave Edwards a .22-
caliber pistol to use for "protection." Defendant saw Vetor give Edwards the gun. Defendant
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armed himself with a baseball bat. The four got in Vetor's truck and drove to Terdic's apartment
building. Defendant gave Vetor directions along the way. Hill gave defendant and Edwards a
prepaid cellular telephone to call for a ride after the robbery. Vetor dropped off defendant and
Edwards to hide in a patch of trees down the street from Terdic's building. Vetor and Hill stayed
in the truck and smoked marijuana.
¶6 While Vetor and Hill were smoking in the truck, police arrived and ticketed them for
possession of marijuana, but did not take them into custody. After the officers finished their
investigation and left the scene, Vetor and Hill drove off and waited for a telephone call from
defendant and Edwards. The next morning, Vetor received a phone call, and she and Hill picked
up defendant and Edwards from a friend's cabin in Channahon. Defendant appeared to be in
shock.
¶7 The four drove to Vetor's house. The men had obtained money, which they split four
ways among them. They had also taken a PlayStation 2 and a Nintendo Wii. The group watched
the television news and cheered when it showed a story about the robbery. Hill did not know if
defendant was cheering. Police arrived at Vetor's house that afternoon and arrested the four of
them. Hill did not witness Edwards threaten defendant to participate in the robbery or witness
defendant resist participating.
¶8 Lauren Vasilakis testified that on July 7, 2009, she was living with her boyfriend, Terdic.
Early that morning she was awakened in their apartment by two men. One of them wore a mask;
the other carried a gun. The masked man grabbed her from behind and put his arm around her
neck. She could feel his heart "racing." She recognized the masked man's voice and knew he
was defendant, whom she had known for more than 10 years and who was a friend of Terdic's.
The unmasked man, whom Vasilakis later identified as Edwards, left the bedroom to look for
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money and valuables. He gave defendant the gun to stand watch over Vasilakis and Terdic.
When Edwards returned, defendant gave him back the gun.
¶9 Vasilakis heard Edwards threaten Terdic that if he did not give them more money, they
would kill him. Edwards said that he had killed his own sister and had no remorse. When
Terdic would not stop fidgeting, defendant pulled a bat out of his duffel bag and hit Terdic full
force in the leg. Eventually, defendant and Edwards became convinced that they had recovered
everything of value in the apartment. They discussed how to ensure that Terdic and Vasilakis
did not call the police after they left. Vasilakis suggested that they could tie up her and Terdic.
The men initially agreed, and Edwards gave the gun to defendant while Edwards tied them up.
¶ 10 Defendant then tried to choke Vasilakis into unconsciousness, but ended up only making
her dizzy. Edwards and defendant conferred again, and Vasilakis heard defendant tell Edwards
to "just do it."
¶ 11 Vasilakis felt someone kneel over Terdic and heard a gunshot. Then someone kneeled
over her, and she could feel a gun pointing at her head through a pillow. She heard two clicks
and then a ringing sound and felt wetness around her ear. She played dead until the two men
left. After they left, Vasilakis untied herself and called 911 from a neighbor's apartment.
Vasilakis was taken to the hospital and treated for a gunshot wound to the head. Doctors were
unable to remove the bullet.
¶ 12 The State played for the jury a recorded interview with defendant conducted after his
arrest. Throughout the interview, defendant states that Edwards was in charge and defendant
participated because he was doing what he was told and had no choice but to participate.
According to defendant, the plan to rob Terdic came about after Edwards browsed through the
contacts listed in defendant's cellular telephone. Upon seeing Terdic's name, Edwards decided
that the group should rob Terdic.
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¶ 13 Defendant explained that Vetor gave him and Edwards a gun with instructions to kill
Terdic and Terdic's girlfriend. As defendant and Edwards waited in the trees near Terdic's
building, they witnessed the police investigating Vetor and Hill in the truck. According to
defendant, Edwards said he was going to kill the officers if they arrested Vetor. After the police
left, Edwards and defendant approached the building to find a way into Terdic's apartment.
Edwards found a way in, and defendant followed because he was scared.
¶ 14 Defendant stated that he and Edwards entered Terdic's bedroom and woke Terdic and
Vasilakis. Edwards told defendant to choke Vasilakis so that she could not move. Defendant did
as he was told. Terdic told the men that he had money hidden in the apartment, but Edwards had
already found the money in another room. Edwards instructed Terdic and Vasilakis to lie face
down and put a pillow over each of their heads. Edwards gave defendant a bat and told him to
hit Terdic with it if Terdic kept squirming. Terdic moved, and defendant hit him in the leg with
the bat.
¶ 15 Edwards left the room to find some rope and gave defendant the gun to stand guard.
Edwards returned and tied up Terdic and Vasilakis. Edwards and defendant were contemplating
what to do with their captives. Defendant told Edwards that they needed to kill them to keep
them from telling police. According to defendant's statement, he did not really mean what he
said and was only doing as he was told. Edwards then shot both Terdic and Vasilakis in the
head. Defendant and Edwards left Terdic's house and travelled to a friend's cabin, where
Edwards broke in. Edwards called Vetor and asked her to pick them up. When they split up the
money, defendant received approximately $70. Defendant stated that Edwards had forced him to
commit the robbery by pointing the gun at him and threatening to kill him if he tried to run or
told police. Defendant did not explain when or where Edwards had made that threat.
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¶ 16 During closing arguments, defense counsel argued that "[t]he facts don't hold up the
proposition of accountability." According to counsel, defendant and Edwards were trying to
determine what to do with their captives. At that point, defendant "heard a pop and turned, and
then he saw [Edwards] shoot [Terdic]. This is far and above what [defendant] signed up for.
There was no intent for all of this." Then counsel changed approach, arguing that defendant was
scared and his participation in the crime was merely "self-preservation" because he was scared
that Edwards would kill him. Counsel focused on the facts that Vasilakis felt defendant's heart
racing and that defendant was in shock after the crime as evidence establishing that defendant
was not a willing participant.
¶ 17 The jury was instructed on accountability but not on the affirmative defense of
compulsion. Defense counsel never tendered an instruction on compulsion. The jury returned
guilty verdicts on all counts.
¶ 18 At sentencing, the State informed the court of the sentencing ranges available on each
count. The State asserted that counts I and IV (intentional murder and attempted murder) were
required to run consecutively, but counts VII and VIII (home invasion and armed robbery)
should run concurrently to each other and to counts I and IV. The court summarized, "the
defense in the case is that you were terrified and there was nothing else you could do other than
participate in this crime as far as it went." The court then pronounced defendant's sentences:
"I agree with the State as far as the counts that Counts 2 and 3 would merge into Count 1.
There is the enhancement with the firearm. I will sentence you to 50 years in the Illinois
Department of Corrections on that matter and that is at 100 percent.
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Count 4 is the aggravated battery with a firearm.[1] I am going to sentence you
consecutive because the law requires that it be consecutive to 25 years in the Department
of Corrections at 85 percent.
Count 7, the home invasion, 20 years at 85 percent, that will be concurrent.
And the armed robbery, 25 years concurrent. There is a three-year mandatory
supervised release period. You will be given credit for all time served that you're entitled
to, and I will enter judgment for any outstanding fines, costs, and fees."
¶ 19 Defendant appeals.
¶ 20 ANALYSIS
¶ 21 On appeal, defendant claims that trial counsel provided ineffective assistance by failing
to tender a jury instruction on the affirmative defense of compulsion (720 ILCS 5/7-11 (West
2008)). The State responds that a compulsion defense was not supported by the evidence. In
addition, the State claims that all of defendant's sentences must be served consecutively under
the mandate of section 5-8-4(d)(1) of the Code. 730 ILCS 5/5-8-4(d)(1) (West 2008).
¶ 22 A. Ineffective Assistance of Counsel
¶ 23 Criminal defendants enjoy a constitutional right to effective counsel. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668 (1984). To
succeed upon a claim that counsel provided ineffective assistance, a defendant must show that:
(1) counsel's performance fell below an objective standard of reasonableness, and (2) but for
1
The court apparently misspoke, as count IV charged attempted first degree murder. The
court's written mittimus clarified that the court sentenced defendant to 25 years for attempted
first degree murder, not aggravated battery. No sentence was imposed for aggravated battery as
that count merged with the attempted murder count.
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counsel's poor performance, there is a reasonable probability that the result of the proceedings
would have been different. Strickland, 466 U.S. at 687. To establish deficient performance, a
defendant must overcome a strong presumption that counsel's actions were the product of sound
trial strategy. People v. Manning, 241 Ill. 2d 319, 342-43 (2011). However, "[w]here defense
counsel argues a theory of defense but then fails to offer an instruction on that theory of defense,
the failure cannot be called trial strategy and is evidence of ineffective assistance of counsel."
People v. Serrano, 286 Ill. App. 3d 485, 492 (1997).
¶ 24 In the present case, defendant claims that counsel was ineffective for failing to tender a
jury instruction on compulsion. The affirmative defense of compulsion is available when a
defendant has committed criminal acts under a reasonable belief that death or great bodily harm
would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/7-11 (West 2008).
The defense is not available if the compulsion arises from the negligence or fault of the
defendant or if the defendant had any opportunity to withdraw from the criminal enterprise but
failed to do so. People v. Humphries, 257 Ill. App. 3d 1034, 1044 (1994).
¶ 25 A defendant need only present some evidence of an affirmative defense—such as
compulsion—in order to raise the defense and justify an instruction. People v. Pegram, 124 Ill.
2d 166, 173 (1988). After a defendant raises a defense, the burden shifts to the State to prove
beyond a reasonable doubt that defendant's conduct was not justified by the offense. People v.
Johns, 387 Ill. App. 3d 8, 13 (2008).
¶ 26 In the present case, defense counsel argued that defendant was compelled to commit the
charged offense, but counsel failed to tender a jury instruction on compulsion. That error
deprived the jurors of the ability to acquit defendant if they found that he acted under the threat
of death or great bodily harm. However, defendant cannot succeed upon his claim of ineffective
assistance, because counsel's failure to tender an instruction did not prejudice defendant.
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¶ 27 To establish prejudice in this case, defendant must show that, had counsel tendered a
compulsion jury instruction, there is a reasonable probability that the court would have allowed
the instruction and the jury would have acquitted defendant based on compulsion.
¶ 28 The evidence presented at trial was insufficient to support a jury instruction on
compulsion. First, the evidence did not establish that defendant committed the acts constituting
any of his offenses under threat of great bodily harm or death. Defendant's repeated statements
that he was just doing what he was told do not constitute compulsion, absent an impending threat
of great bodily harm. People v. Scherzer, 179 Ill. App. 3d 624, 645 (1989). The only reference
to a threat of any kind was defendant's statement that "He [Edwards] pretty much pointed the gun
at me. And then pretty much told me if I snitched or even tried to run off that he would kill me."
Defendant does not elaborate on when this alleged statement was made, nor was the statement
confirmed by any other testimony. In fact, Vasilakis testified that defendant was the one
encouraging Edwards to kill her and Terdic. Defendant himself said in his recorded statement
that he encouraged Edwards to shoot Vasilakis and Terdic to prevent them from reporting the
robbery.
¶ 29 Second, any potential compulsion arose from the fault of defendant. See Humphries, 257
Ill. App. 3d at 1044. Hill testified that defendant suggested the idea to rob Terdic. Defendant
then gave the group information about Terdic: that Terdic would have cash from his job in
construction and that he lived in an apartment in Channahan with his girlfriend. Defendant then
gave directions as Vetor drove the group to Terdic's apartment.
¶ 30 Third, even assuming that defendant was acting under compulsion, he had opportunities
to withdraw from the criminal enterprise but chose not to. See Scherzer, 179 Ill. App. 3d at 645-
46. In particular, while inside Terdic's apartment, defendant on two separate occasions came into
possession of the only firearm. Once in possession of the gun, defendant was no longer
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susceptible to any potential threats from Edwards. While defendant was the only one in the
house armed with a handgun, he cannot credibly argue that he was acting out of fear of the
unarmed Edwards. Defendant failed to withdraw from the criminal enterprise when he had the
perfect opportunity to do so.
¶ 31 Defendant did not receive ineffective assistance counsel. Had counsel tendered a jury
instruction on compulsion, there is not a reasonable probability that the trial court would have
given the instruction. Had the trial court given the instruction, there is not a reasonable
probability that the jury would have acquitted.
¶ 32 B. Sentencing
¶ 33 The State claims that the sentencing judgment is void because all of defendant's sentences
must be served consecutively. Defendant concedes the issue, and the parties agree that we
should vacate defendant's sentence and remand for resentencing. We may correct a void
sentence at any time. People v. Thompson, 209 Ill. 2d 19, 25 (2004).
¶ 34 Section 5-8-4(d) of the Code mandates consecutive sentences in certain situations. 730
ILCS 5/5-8-4(d) (West 2008). The only situation applicable to the present case is described by
section 5-8-4-(d)(1), which mandates consecutive sentences when "[o]ne of the offenses for
which the defendant was convicted was first degree murder or a Class X or Class 1 felony and
the defendant inflicted severe bodily injury." 730 ILCS 5/5-8-4(d)(1) (West 2008). We interpret
that language to require consecutive sentences in two situations: (1) where the defendant was
convicted of first degree murder; and (2) where the defendant was convicted of a Class X or
Class 1 felony, and the defendant inflicted severe bodily injury during the commission of that
felony. See People v. Whitney, 188 Ill. 2d 91, 98-99 (1999) (the severe bodily injury must result
from the commission of the Class X or Class 1 felony). It seems absurd to refer to severe bodily
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injury in connection with a conviction for first degree murder; first degree murder necessarily
results in the most severe bodily injury—death.
¶ 35 In the present case, counts I, IV, VII, and VIII were all triggering offenses mandating
consecutive sentencing under section 5-8-4(d)(1). Count I was first degree murder. Count IV
charged attempted first degree murder for the gunshot to Vasilakis's head. Attempted first
degree murder is a Class X felony, and a gunshot to the head constitutes a severe bodily injury,
especially considering that the bullet remains lodged in the victim's head. Count VII charged
home invasion, a Class X felony. A gunshot to Vasilakis's head was a severe bodily injury
inflicted during the commission of the home invasion and armed robbery, both Class X felonies.
Count VIII charged armed robbery, also a Class X felony. Likewise, Terdic's death occurred
during the commission of those Class X felonies. In sum, section 5-8-4(d)(1) required that all
four sentences be served consecutively.
¶ 36 The sentencing order imposed by the court failed to comply with the requirements of
section 5-8-4(d)(1). Therefore the order is void. See, e.g., People v. Arna, 168 Ill. 2d 107, 113
(1995) ("A sentence which does not conform to a statutory requirement is void."). We vacate the
order and remand for resentencing.
¶ 37 CONCLUSION
¶ 38 The judgments of conviction of the circuit court of Will County are affirmed. The
judgment of sentence is vacated, and the cause is remanded for resentencing consistent with this
opinion.
¶ 39 Affirmed in part and vacated in part; cause remanded.
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