People v. Alvarez ( 2021 )

2021 IL App (2d) 180947-UNo. 2-18-0947
Order filed March 30, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CF-2260
)
JESSE ALVAREZ, ) Honorable
) Mark A. Pheanis,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court properly dismissed, at the first stage, defendant’s postconviction
claim that trial counsel was ineffective for failing to investigate and call witnesses
who purportedly would have contradicted a trial witness’s testimony that he saw
defendant in the vicinity just before the shooting. Defendant included a police
report detailing the proposed witnesses’ accounts, but, without affidavits from the
witnesses themselves, there was no evidence that trial counsel had neglected to
investigate them or that they would have testified consistently with the report.
¶2 Defendant, Jesse Alvarez, appeals the trial court’s order dismissing his petition pursuant to
the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2018)). He contends
2021 IL App (2d) 180947-Uthat his petition stated the gist of a meritorious claim that defense counsel was ineffective for
failing to investigate and call three witnesses. We affirm.
¶3 I. BACKGROUND
¶4 Following a bench trial, defendant was convicted of five counts of attempted first-degree
murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), two counts of aggravated battery with a
firearm (720 ILCS 5/12-4.2(a)(1) (West 2008), and one count of armed violence (720 ILC 5/33A-
2(a) (West 2008)) in the shooting of Alexander Carrera on July 1, 2009.
¶5 At trial, Samuel Sosa testified pursuant to an agreement with the State that he was a
member of the Latin Kings in Aurora. Prior to July 1, 2009, Sosa had possession of a “Nation
gun” that was available for use by members of the gang. The gun was loaded with seven or eight
rounds, including a mix of standard rounds and “shotgun rounds.” Two or three days after July 1,
2009, defendant returned the gun to Sosa, saying that he had used it to shoot a “Maniac” in the leg.
¶6 Azael Ramirez corroborated Sosa’s testimony about the gun. He added that, after the
shooting, defendant said that he had waited outside a house on Valley Avenue where some Maniac
Latin Disciples were staying. Defendant said that he shot someone who came out of the house and
was trying to get back inside. Like Sosa, Ramirez testified pursuant to an agreement with the
State.
¶7 Carrera testified that he was at home on the night of July 1, 2009, when he went outside to
dispose of a cigarette. He noticed someone standing about 20 feet away at the bottom of the steps.
The person asked, “What do you claim, dog?,” which Carrera understood to mean, “What gang
are you in?” Carrera turned and ran back toward the house. The person shot several times, hitting
Carrera in the upper thigh and near his knee.
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2021 IL App (2d) 180947-U¶8 Asked whether he could identify the person who shot him, Carrera responded, “I believe
so.” He identified defendant as the shooter, but added, “He looks different than before though.”
¶9 Ebelio Ponce testified that he could not remember anything about the nights of July 1,
2009, or February 26, 2010, because he had been intoxicated and high on drugs on both occasions.
After some reluctance, he testified that he remembered giving a statement to the police on February
26, 2010. He did not recall speaking with a female police lieutenant on July 1, 2009, nor did he
remember anything else about that date. The prosecution then played the videotaped statement of
a police interview of Ponce on that date. In that statement, Ponce said that he and defendant’s
brother were at the Brady Elementary School in Aurora on July 1, 2009. Ponce saw defendant just
before the shooting. Defendant was wearing gloves and holding one hand behind his back.
Defendant was walking down Liberty Street toward Valley Avenue, where the shooting occurred.
A short time later, Ponce heard gunshots from the direction of Valley Avenue.
¶ 10 On cross-examination, Ponce denied that he saw defendant on July 1, 2009. He reiterated
that he was intoxicated both on the day of the incident and when he gave the videotaped statement.
He acknowledged that on February 26, 2010, there was a warrant for his arrest. He testified that
what he said in the statement was “false information” that had been given to him. He denied that
he even knew defendant, although he was acquainted with defendant’s brother, Omar Alvarez.
¶ 11 Sergio Cisneros testified that he was visiting Carrera at the time of the shooting and saw
Carrera’s injuries. The next day, Cisneros was visiting Omar Alvarez, defendant’s brother, when
defendant admitted to him that he had shot Carrera with a .45-caliber firearm that fired “hallow
bullets.”
¶ 12 The court found defendant guilty and sentenced him to a total of 88 years in prison. On
direct appeal, defendant contended that the trial court erred in imposing consecutive sentences on
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2021 IL App (2d) 180947-Usome counts. We remanded for reconsideration of the sentence. People v. Alvarez, 2016 IL App
(2d) 140364. Following remand, the trial court ordered all sentences to run concurrently, resulting
in a total of 31 years’ imprisonment.
¶ 13 Defendant filed a postconviction petition. In it, he contended that defense counsel was
ineffective for failing to investigate and call three potential witnesses: Roberto Rivera, Lieutenant
K. Ziman, and Officer D. Woods of the Aurora Police. Defendant alleged that Rivera would have
contradicted Ponce’s recorded statement about seeing defendant prior to the shooting. The
officers, who allegedly spoke to Rivera at the scene of the shooting, would have corroborated his
account.
¶ 14 No affidavits were attached to the petition. However, the petition included a police report,
apparently authored by Woods, that described encountering Ponce and Rivera on the night of the
shooting. According to the report, Woods and Ziman were investigating the shooting when Rivera
and Ponce rode up on bicycles and asked what happened. Woods explained that there had been a
shooting and Rivera asked if everyone was okay. Rivera said that he and Ponce had been with the
victim earlier that evening. Shortly before midnight, they went to a nearby gas station to get
something to drink. They then went to Rivera’s house to tell his mother that they were going back
to Valley Avenue. According to the police report, neither Rivera nor Ponce “claimed to have any
knowledge of the shooting and there was nothing to suggest otherwise at the time of this report.”
Defendant argued that testimony from these witnesses would have established that Ponce’s
videotaped statement to the police claiming to have seen defendant near the crime scene was false.
¶ 15 The trial court summarily dismissed the petition, finding that it did not include affidavits
of the witnesses’ proposed testimony or explain their absence. Defendant timely appealed.
¶ 16 II. ANALYSIS
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2021 IL App (2d) 180947-U¶ 17 The Act allows a defendant to challenge his conviction or sentence for violations of his
constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183 (2005). At the first stage, the trial
court must independently review the petition within 90 days of its filing and determine whether
“the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). If
the court finds that the petition is either frivolous or patently without merit, it must dismiss the
petition in a written order. Id.; People v. Edwards, 197 Ill. 2d 239, 244 (2001). Our review is de
novo. Edwards, 197 Ill. 2d at 247.
¶ 18 To succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy
the two-pronged Strickland test: he or she must allege facts which demonstrate that counsel’s
representation fell below an objective standard of reasonableness and that there is a reasonable
probability that, but for counsel’s errors, the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); People v. Enis, 194 Ill. 2d 361, 376
(2000).
¶ 19 Defendant contends that the trial court wrongly dismissed his petition on the ground that it
did not include affidavits from the prospective witnesses. He maintains that the police report
attached to the petition sufficiently supports his claim. We disagree. The police report did not
meet the Act’s requirement of evidentiary support for postconviction allegations at the first stage
of review. To explain, we examine the relevant portion of the Act and the case law construing it.
¶ 20 Section 122-2 of the Act dictates the “Contents of [the] Petition.” 735 ILCS 5/122-2 (West
2018). The section states in relevant part: “The petition shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not attached.”
735 ILCS 5/122-2 (West 2018). The requirement of evidentiary support “serves two purposes.”
People v. Allen, 2015 IL 113135, ¶ 32. “First, it must contain a factual basis sufficient to show the
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2021 IL App (2d) 180947-Upetition’s allegations are capable of objective or independent corroboration.” (Internal quotation
marks omitted.) Id. “Second, it must identify with reasonable certainty the sources, character, and
availability of the alleged evidence supporting the petition’s allegations.” (Internal quotation
marks omitted.) Id.¶ 21 The evidentiary requirement governs petitions even at the first stage of review. “[The] low
threshold [for first-stage survival] does not excuse the pro se petitioner from providing factual
support for his claims; he must supply sufficient factual basis to show the allegations in the petition
are capable of objective or independent corroboration.” (Internal quotation marks omitted.)
People v. Allen, 2015 IL 113135, ¶ 24. “The legislature intended that the circuit court at the first
stage would look to whether the petition alleges a constitutional deprivation and whether
petitioner’s proffered evidence substantially indicates the availability of admissible evidence in
support of his claim, in a way that can be corroborated through later proceedings.” (Emphasis
added.) Id. ¶ 33. See id. ¶¶ 37, 48 (unnotarized statement from potential witness satisfied
evidentiary requirement at the first stage); People v. Collins, 202 Ill. 2d 59, 66 (2002) (defendant’s
sworn verification did not satisfy evidentiary requirement at the first stage).
¶ 22 Two cases, People v. Dupree, 2018 IL 122307, and People v. Thompkins, 161 Ill. 2d 148(1994), illustrate how to interpret and apply the evidentiary requirement to the type of claim
defendant raises in his petition. The question of first impression for the court in Dupree was
whether a postconviction claim of ineffectiveness based on a failure to investigate and call a
witness necessarily requires an affidavit from that witness for support. Dupree, 2018 IL 122307,
¶¶ 32-33. The court held that an affidavit is not always required in such cases to fulfill the
evidentiary requirement:
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2021 IL App (2d) 180947-U“[T]his court has always held that dismissal is proper when the record or other evidence
attached to the petition does not support the petitioner’s claim. In cases where a
postconviction petitioner raises a claim of ineffective assistance based on counsel’s failure
to call a witness, an affidavit from the proposed witness will be required if it is essential
for the postconviction petitioner to make the necessary ‘substantial showing’ to support a
claim of ineffective assistance. It may be true that in most cases where this type of claim
is raised, without an affidavit, there can be no way to assess whether the proposed witness
could have provided evidence that would have been helpful to the defense. However, to
interpret our case law as requiring an affidavit in all instances where this type of claim is
raised is simply incorrect.” Id. ¶ 34.
¶ 23 The court then surveyed a number of cases, including Thompkins. In Thompkins, the
petition contained the defendant’s own affidavit that he was with two women at the time of the
murder and that they could have provided him with an alibi. Thus, the supreme court knew the
substance of the proposed testimony, but nevertheless affirmed the dismissal of the petition
because the “defendant’s failure to submit affidavits from the women themselves precluded [the
court] from considering [the] issue further.” Thompkins, 161 Ill. 2d at 163. In Dupree, the court
elaborated that, in Thompkins, “what precluded [its] review was the fact that there was nothing in
the record to support the defendant’s assertion that counsel had not spoken to these women or that
the women, if called at trial, would have testified that they were with [the defendant] at the
pertinent time.” Dupree, 2018 IL 122307, ¶ 36. The court further noted that the alibi claim “could
not be taken as true because it ran counter to the evidence that was presented at trial.” Id. 1 “Thus,
1
Based on its comments in summarizing the holdings of Thompkins and the other cases,
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2021 IL App (2d) 180947-Uwithout affidavits from these two women, it was impossible to determine whether the failure to
call these proposed witnesses was evidence of ineffective assistance or simply trial strategy.” Id.¶ 24 The court drew the following principles from Thompkins and the other cases:
“In all of the cases ***, the claims of ineffective assistance were based on counsel’s failure
to discover and introduce new witness testimony, i.e., new evidence, which the defendants
believed would have altered the outcome of their trials. Because the proposed witnesses
that trial counsel allegedly failed to investigate or call to testify were generally the only
source of this new evidence, without their affidavits, there was no proof that such evidence
actually existed or that it would have been helpful to the defense. Where proof other than
an affidavit was offered to show what the proposed witness would have testified, we
considered that evidence and determined it was insufficient to make a substantial showing
of ineffective assistance.” (Emphasis in original.) Id. ¶ 40.
¶ 25 The Dupree court then contrasted the facts before it from those in Thompkins and the other
cases. The trial court in Dupree dismissed at the second stage the defendant’s petition alleging
that trial counsel was ineffective for failing call the robbery victim, Morrison, to testify at trial.
The defendant did not provide an affidavit from Morrison but instead attached “three signed,
handwritten statements that Morrison had given to the police in the course of their investigation of
the robbery, as well as the police summary reports of their questioning of Morrison.” Id. ¶ 19.
“These documents showed that Morrison reported the robbery to police shortly after it occurred
and, in the course of the investigation, gave the police three different versions of how the robbery
the Dupree court believed that the absence of affidavits in Thompkins would have doomed the
defendant’s claim regardless of whether the defendant’s allegations conflicted with the record.
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2021 IL App (2d) 180947-Uoccurred.” Id. The defendant claimed that counsel was ineffective specifically because counsel’s
failure to call Morrison as a witness prevented counsel from bringing this exculpatory evidence to
the attention of the jury. Id. ¶ 41.
¶ 26 The Dupree court distinguished Thompkins and the other cases as follows:
“Thus, in this case, unlike the typical case, defendant did not hope to introduce new
evidence that could only be verified by an affidavit from the proposed witness. Instead,
defendant wanted to introduce evidence that already existed: Morrison’s statements to the
police, Morrison’s failure to identify defendant from photo lineups, and Morrison’s
identification of someone other than defendant as the gunman. All of this evidence was
inadmissible hearsay unless Morrison testified. Under these circumstances, anything that
Morrison might say if called to testify at an evidentiary hearing is irrelevant to defendant’s
claim. Consequently, under the facts of this case, an affidavit from Morrison was not
necessary, and it was appropriate for defendant to support the allegation of ineffectiveness
with portions of the record and exhibits.” Id. ¶ 42.
¶ 27 Before applying Dupree’s principles here, we explain why they apply here, in an appeal
from a first-stage dismissal, when Dupree involved a second-stage dismissal. The Act does not
specify different content requirements for petitions at different stages. Section 122-2 provides the
only requirements for content, and Dupree based its analysis entirely on that provision. The
supreme court has affirmed that the evidentiary requirement applies at the first stage. See Allen,
2015 IL 113135, ¶¶ 24, 26; Collins, 202 Ill. 2d at 66. Thus, even at the first stage, the petition
must supply enough evidentiary support to show that its allegations “are capable of objective or
independent corroboration,” and there must be “reasonable certainty” as to the “sources, character,
and availability of the alleged evidence supporting the petition’s allegations.” (Internal quotation
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2021 IL App (2d) 180947-Umarks omitted.) Allen, 2015 IL 113135, ¶ 32. Dupree applied the same essential standards though
it did not use Allen’s exact verbiage. Dupree held that a postconviction claim of ineffectiveness
based on a failure to investigate and call a witness will fail if there is “no way to assess whether
the proposed witness could have provided the evidence that would have been helpful to the
defense.” Dupree, 2018 IL 122307, ¶ 34. Further on in its analysis, Dupree clarified that if an
ineffectiveness claim is based on “counsel’s failure to discover and introduce new witness
evidence,” the defendant must establish both “that such evidence actually exist[s]” and “that it
would have been helpful to the defense.” Id. ¶ 40. If the proposed witness is “generally the only
source of this new evidence,” then the defendant must provide an affidavit from that witness. Id.
¶ 28 With these standards, Dupree was serving the same interests that Allen articulated as
applying at the first stage of review: ensuring that the factual allegations of the petition are capable
of corroboration and that it is reasonably certain that the alleged new evidence, in the form of
witness testimony, is indeed available. Thus, Dupree approved of the holding in Thompkins, where
the absence of affidavits from the alleged alibi witnesses was fatal because the court could not
otherwise know if the witnesses would have testified as the defendant claimed. Id. ¶ 36 (citing
Thompkins, 161 Ill. 2d at 163).
¶ 29 Applying these criteria, we note that this case is obviously closer to Thompkins than to
Dupree itself. In Dupree, the defendant claimed that trial counsel was ineffective for not calling
Morrison. However, the defendant wanted Morrison to testify not because of the substance of his
testimony, but for the opportunity to bring hearsay documents to the attention of the jury. Id. ¶ 42.
Thus, an affidavit from Morrison about his anticipated testimony was not necessary to support the
defendant’s claim.
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2021 IL App (2d) 180947-U¶ 30 Here, like the defendant in Thompkins, defendant alleged that trial counsel failed to
investigate and call witnesses whose testimony was allegedly important because of its substance.
As noted, Dupree appears to provide two distinct but related rationales for the requirement of
evidentiary support in cases such as Thompkins and this one. First, the defendant must reliably
inform the court of the substance of the proposed testimony so that the court can decide whether
it would have been “helpful to the defense.” Id. ¶ 34. Second, the defendant must establish that
“the proposed witness could have provided” such evidence. Id.¶ 31 The first is arguably satisfied here. We can glean from the police report the gist of what
defendant wanted to prove: that Ponce and Rivera told the officers that they were riding bikes
around the neighborhood at the time of the shooting and claimed to know nothing about it. The
second concern is problematic, however. No supporting evidence shows that Rivera would
actually have been able or willing to testify consistent with the report. There is no indication that
Rivera was still in the jurisdiction and subject to subpoena, that Woods’s report accurately
reflected his statement, or that Rivera remembered making the statement and would have been
willing to so testify. Similar concerns apply to the officers as well, with the further difficulty that
the only relevant testimony they could have given based on the report was hearsay—merely
repeating what Ponce and Rivera told them.
¶ 32 Lastly, we distinguish Allen, where the court held that a potential witness’s unnotarized
statement met the evidentiary requirement at the first stage of review. See Allen, 2015 IL 113135,
¶¶ 37, 48. The court reasoned that the lack of notarization “[did] not limit the *** statement’s
identification of the ‘sources, character, and availability’ of evidence alleged to support the
petition, or destroy its ability to show that the petition’s allegations are capable of independent
corroboration.” Id. ¶ 34 (quoting People v. Delton, 227 Ill. 2d 247, 254 (2008)). “It [was] enough
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2021 IL App (2d) 180947-Ufor first-stage purposes that the defendant *** provided substantive evidentiary content showing
his claims are capable of corroboration and independent verification.” Id. ¶ 37. The lack of
notarization could be a basis for a second-stage challenge. Id. ¶ 35.
¶ 33 The obvious difference between this case and Allen is that the defendant in Allen provided
a statement from the potential witness. The Allen court found that, despite the lack of notarization,
the statement established with reasonable certainty the availability of the evidence. Here, without
any statement (notarized or not) from the witnesses, we are not convinced of the availability of the
evidence, i.e., that the witnesses would have testified consistently with the police report.
¶ 34 Thus, while the absence of an affidavit is not automatically fatal to a defendant’s
postconviction claim, defendant’s claim nevertheless fails because there is no evidence that
defense counsel failed to investigate the witnesses or that any of them would have been willing or
able to testify consistently with the report.
¶ 35 Because the lack of evidentiary support for the ineffectiveness claim was an adequate
ground for dismissal, we do not reach the issue of whether trial counsel was ineffective for failing
to call the witnesses.
¶ 36 III. CONCLUSION
¶ 37 The judgment of the circuit court of Kane County is affirmed.
¶ 38 Affirmed.
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