People v. Pizarro ( 2020 )


Menu:
  •                                                                          Digitally signed by
    Reporter of
    Decisions
    Reason: I attest to
    Illinois Official Reports                        the accuracy and
    integrity of this
    document
    Appellate Court                          Date: 2020.06.28
    15:32:00 -05'00'
    People v. Pizarro, 
    2020 IL App (1st) 170651
    Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
    Caption             JOSE PIZARRO, Defendant-Appellant.
    District & No.      First District, First Division
    No. 1-17-0651
    Filed               March 30, 2020
    Rehearing denied    May 7, 2020
    Decision Under      Appeal from the Circuit Court of Cook County, No. 05-CR-18057; the
    Review              Hon. Mary Margaret Brosnahan, Judge, presiding.
    Judgment            Affirmed and remanded.
    Counsel on          James E. Chadd, Patricia Mysza, and Jonathan Krieger, of State
    Appeal              Appellate Defender’s Office, of Chicago, for appellant.
    Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
    and Justin R. Erb, Assistant State’s Attorneys, of counsel), for the
    People.
    Panel               JUSTICE PIERCE delivered the judgment of the court, with opinion.
    Presiding Justice Griffin and Hyman concurred in the judgment and
    opinion.
    OPINION
    ¶1       Defendant, Jose Pizarro, was convicted in absentia of two counts of attempted aggravated
    criminal sexual assault and one count of aggravated criminal sexual abuse and was sentenced
    to concurrent prison terms of 15 and 7 years respectively. On appeal, he argues (1) the State
    failed prove him guilty beyond a reasonable doubt, (2) he is entitled to an additional 22 days
    of sentence credit, and (3) the mittimus should be corrected to reflect the correct charge of
    aggravated criminal sexual abuse. For the following reasons, we affirm his convictions under
    counts III and IV and remand to the trial court so that defendant may file a motion to correct
    sentencing issues.
    ¶2                                          BACKGROUND
    ¶3       Defendant was charged with 17 counts: 2 counts of aggravated kidnapping, 2 counts of
    attempted aggravated criminal sexual assault, 10 counts of aggravated criminal sexual abuse,
    1 count of kidnapping, 1 count of aggravated battery, and 1 count of unlawful restraint of M.S.,
    the 15-year-old victim. It was alleged that on July 1, 2005, defendant knowingly, and with the
    use of force, carried M.S. from one location to another against her will with the intent to
    sexually penetrate her and also made physical contact with M.S. for sexual gratification.
    ¶4       The day after the jury was selected and opening statements were made, defendant failed to
    appear in court despite having been admonished that he must appear on every court date or he
    may be tried and sentenced in absentia. After questioning Chicago police Detective Daniel
    McNally about his efforts to locate defendant and questioning defendant’s live-in girlfriend,
    the court found defendant’s absence to be willful and proceeded to trial in his absence.
    ¶5       The State proceeded to trial on two counts of aggravated kidnapping, two counts of
    attempted aggravated criminal sexual assault and one count of aggravated criminal sexual
    abuse. The following evidence was adduced at trial in relevant part.
    ¶6       Cook County Assistant State’s Attorney (ASA) Karin Sullivan testified that on July 1,
    2005, she interviewed defendant, who was being held at the Chicago Police Department. After
    giving defendant the Miranda warnings (see Miranda v. Arizona, 
    384 U.S. 436
     (1966)),
    defendant agreed to make a handwritten statement, which was admitted into evidence.
    ¶7       In the statement, defendant admitted that on July 1, 2005, he parked and exited his car and
    walked east under the viaduct on 63rd Street in Chicago. He saw two young girls in front of
    him. One looked to be about 13 or 14 years old, and the other looked to be about 6 or 7. He
    walked fast so he could catch up with the older girl. When he caught up to her, he grabbed her
    by the shirt and pulled her up a hill toward some bushes. He then pulled the girl’s shirt and bra
    off and grabbed her breast with his hands, which caused him to get an erection. Defendant tried
    to put his mouth on her breast but saw a group of men running at him. He tried to run to his
    car so he could get away, but the men caught up to him and pulled him out of the car. Defendant
    stated that if the men had not run toward him, he intended to have sex with M.S. in the bushes.
    ¶8       M.S. testified that on July 1, 2005, she was 15 years old. She and her 10-year-old sister
    were walking near the viaduct on 63rd Street when she noticed a brown pickup truck pull up.
    She saw a man exit the truck and follow them through the viaduct. M.S. and her sister were
    walking fast at first but then started to run. As they approached the end of the viaduct at
    Hamilton Street, defendant grabbed M.S. by the back of the shirt and dragged her up a nearby
    -2-
    hill. M.S. told her sister to run home and get their mom. When M.S. was halfway up the hill,
    defendant put his hand down M.S.’s shirt and touched her breast and then ripped her bra off
    and said, “let me see.”
    ¶9          M.S. was crying and screaming for help. Defendant started to touch “the stomach part
    below” and unbuttoned her pants and put his hand down her pants. Defendant was only able to
    get to her “stomach part” before three men and two women came running toward her and
    defendant. Defendant stopped touching her and ran away from the group. The police came,
    and M.S. later saw defendant in handcuffs in a police car. She told the police that defendant
    tried to rape her.
    ¶ 10        M.S. sustained several scratches to the back of her arm and to the back of her neck from
    when defendant grabbed her, which she identified in photographs. She also identified a
    photograph of her torn-up bra.
    ¶ 11        M.S.’s sister, T.S., testified that she and M.S. were walking under the viaduct when
    defendant began to follow them. Defendant then grabbed M.S. T.S. ran home to tell her mother.
    ¶ 12        The men and women who came to M.S.’s aid also testified that they saw defendant pulling
    M.S. up the hill and subsequently ran after defendant, preventing him from leaving the scene.
    ¶ 13        Officer Azira testified that he and his partner were on patrol on July 1, 2005, when they
    were flagged down by a group of people near 63rd Street and Bell Avenue. Officer Azira spoke
    to M.S., who was visibly upset. Her clothes were “in disarray,” and she stated that her shirt
    had been ripped off. M.S. had scratches on her arms and neck. M.S. identified defendant as the
    offender.
    ¶ 14        The State rested, and defense counsel called no witnesses. Defendant was convicted
    in absentia of both counts of attempted aggravated criminal sexual assault and one count of
    aggravated criminal sexual abuse. The court sentenced defendant to 15 years’ imprisonment
    for the attempted aggravated criminal sexual assault and a concurrent 7 years for aggravated
    criminal sexual abuse.
    ¶ 15        On September 23, 2016, 10 years later, after being arrested for a misdemeanor in Michigan,
    defendant returned to court and moved for a new trial or sentence. The court held a hearing on
    defendant’s motion to determine whether defendant’s absence from trial was willful pursuant
    to section 115-4.1(e) of the Code of Criminal Procedure (Code) (725 ILCS 5/115-4.1(e) (West
    2016)), and defendant testified that he did not appear for trial because he “got really scared”
    and moved to Michigan. The parties stipulated that, if called to testify, court reporter Daisy
    Hent would testify that she was present when the court admonished defendant that, if he did
    not appear for trial, he would be tried in absentia. After the hearing, the court found that
    defendant’s absence was willful and denied his motion for a new trial on January 20, 2017.
    The court denied defendant’s motion for a new sentencing hearing on February 2, 2017. This
    appeal followed.
    ¶ 16                                            ANALYSIS
    ¶ 17       Before we address the merits of defendant’s argument, we must address the State’s
    contention that this court lacks jurisdiction to consider defendant’s argument challenging his
    attempted aggravated criminal sexual assault conviction. The State maintains that, because
    defendant did not appeal from the denial of his motion for a new trial or new sentencing hearing
    filed under section 115-4.1 (id. § 115-4.1), he cannot independently request review of the
    -3-
    judgment and sentence not vacated by the court. Since a reviewing court must first ascertain
    its jurisdiction before analyzing the merits of the appeal (see Secura Insurance Co. v. Illinois
    Farmers Insurance Co., 
    232 Ill. 2d 209
    , 213 (2009)), we begin by addressing the State’s
    jurisdiction arguments.
    ¶ 18        Generally, in criminal cases, a trial court loses subject-matter jurisdiction of the case 30
    days after it imposes the defendant’s sentence. People v. Flaugher, 
    396 Ill. App. 3d 673
    , 680
    (2009). However, section 115-4.1 provides a mechanism for those defendants tried in absentia
    to request review of their conviction and sentence beyond the 30 days.
    ¶ 19        Section 115-4.1(e) of the Code provides:
    “(e) When a defendant who in his absence has been *** both convicted and
    sentenced appears before the court, he must be granted a new trial or new sentencing
    hearing if the defendant can establish that his failure to appear in court was both without
    his fault and due to circumstances beyond his control. A hearing with notice to the
    State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing
    must be held before any such request may be granted. At any such hearing both the
    defendant and the State may present evidence.” 725 ILCS 5/115-4.1(e) (West 2016).
    Section 115-4.1(g) of the Code states:
    “A defendant whose motion under paragraph (e) for a new trial or new sentencing
    hearing has been denied may file a notice of appeal therefrom. Such notice may also
    include a request for review of the judgment and sentence not vacated by the trial
    court.” 
    Id.
     § 4.1(g).
    ¶ 20        Our supreme court has characterized section 115-4.1(e) as a collateral remedy that under
    the appropriate circumstances may be used to secure a review of the conviction. Thus, it is
    analogous to a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-
    1401 (West 2016)) or a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1
    et seq. (West 2016)) and will support an appeal separate from a direct appeal of the underlying
    judgment. People v. Partee, 
    125 Ill. 2d 24
    , 35 (1988); see also People v. Williams, 
    274 Ill. App. 3d 793
    , 797-98 (1995) (“The legislature has engrafted the request for review of the conviction
    and sentence as a part of that appeal from the final order of the collateral proceeding.
    Accordingly, permitting that review as long as it is perfected within 30 days of the entry of the
    ruling on the section 115-4.1(e) motion is consistent with Supreme Court Rule 606(b).”).
    ¶ 21        Section 115-4.1(g) provides that a defendant whose motion for a new trial or new
    sentencing hearing under section 115-4.1(e) has been denied may file a notice of appeal and
    that “[s]uch notice may also include a request for review of the judgment and sentence not
    vacated by the trial court.” 725 ILCS 5/115-4.1(g) (West 2016). However, a defendant must
    request in his notice of appeal a review of the underlying judgment. Otherwise, “the notice of
    appeal would necessarily pertain only to issues relating to the order denying his section 115-
    4.1(e) motion ***, i.e., whether his absence from court was without his fault and due to
    circumstances beyond his control.” People v. Pontillo, 
    267 Ill. App. 3d 27
    , 33 (1994).
    ¶ 22        Defendant’s notice of appeal indicates that he is appealing from his convictions for
    aggravated criminal sexual assault and criminal sexual abuse, but it listed his sentencing date
    as February 2, 2017, the date the trial court denied his motion for a new sentencing hearing. In
    his opening brief before this court, defendant suggests that this court has jurisdiction over his
    appeal under “article VI, section 6 of the Illinois Constitution, and Supreme Court Rules 603
    -4-
    and 606” and cites “725 ILCS 5/115-4.1(g) (allowing appeals following post-return hearing of
    defendant tried in absentia); People v. Partee, 
    125 Ill. 2d 24
    , 33-38 (1988) (finding jurisdiction
    under Rule 606 from conviction in absentia, even without post-return hearing).” In his brief,
    defendant argues that his “conviction for attempted aggravated criminal sexual assault must be
    reversed, because the State failed to prove [his] intent to commit an act of sexual penetration,
    as defined by statute.” Defendant does not specifically mention his section 115-4.1(e) motion
    (725 ILCS 5/115-4.1(e) (West 2016)) in his opening brief or make any argument that the circuit
    court improperly denied the motion.
    ¶ 23       Although defendant’s notice of appeal filed in this case is unsophisticated (defendant’s
    attorney merely filled in the blanks of a standard form), defendant did file a timely notice of
    appeal from the denial of his section 115-4.1(e) motion and did indicate that he was appealing
    from the judgment of “guilty of two counts” of “aggravated criminal sexual abuse.” Defendant
    clearly intended to “request” review of the underlying judgment and sentence not vacated by
    the court under section 115-4.1(e). Without such a request, the notice of appeal would pertain
    only to issues relating to the order denying his section 115-4.1(e) motion.
    ¶ 24       The State argues that we should follow People v. Priest, 
    345 Ill. App. 3d 660
     (2003), and
    find that this court lacks jurisdiction to consider defendant’s claims. In Priest, the defendant
    pled guilty to two counts of possession of a controlled substance but failed to return to court
    for sentencing and was sentenced in absentia. Id. at 662. Defense counsel filed a motion to
    withdraw defendant’s guilty plea and a motion to reconsider the sentence. Id. at 663. The court
    did not rule on either motion. Id. The defendant returned to court several months later and filed
    a section 115-4.1(e) motion, which the trial court denied. Id. at 663-64. The defendant appealed
    and argued that the court should not have sentenced him in absentia and the trial court erred in
    denying his section 115-4.1(e) motion. Id. at 664.
    ¶ 25       This court found that it did not have jurisdiction over the defendant’s direct appeal because
    Rule 606 requires that a defendant file a notice of appeal within 30 days of final judgment. Id.
    at 667. We stated:
    “the language of section 115-4.1(g), if interpreted to allow a defendant to raise his
    direct appeal issues following the denial of a section 115-4.1(e) motion, would open
    the door for defendants to assert the merits of their direct appeal whenever they return
    to the jurisdiction of the trial court. This could conceivably be months or years after
    their direct appeal rights provided under the supreme court rules have been forfeited.”
    Id.
    ¶ 26       We find that Priest is inapplicable to the facts of this case because in Priest, the defendant’s
    notice of appeal identified the earlier sentencing judgment but not the later denial of his section
    115-4.1(e) motion. The failure to appeal from the denial of his section 115-4.1(e) motion
    doomed Priest’s attempt to obtain a direct appeal of his conviction and sentence. Here, Pizarro
    has filed a notice of appeal seeking appellate review of the denial of his section 115-4.1(e)
    motion and the review of his conviction and sentence on certain counts, which is authorized
    under section 115-4.1(g).
    ¶ 27       We also reject the State’s reliance on People v. Dupree, 
    339 Ill. App. 3d 512
     (2003), 1 to
    support its argument that section 115-4 is a legislative encroachment that violates the
    1
    The Dupree decision lists Justice Cahill as “deliver[ing] the opinion of the court” but also lists no
    other justice joining it fully. See Dupree, 
    339 Ill. App. 3d 512
    . Justice Gordon specially concurred in
    -5-
    separation of powers by creating appellate jurisdiction where it otherwise would not exist.
    Dupree observed that Partee found that a section 115-4 motion is “ ‘more akin to a collateral
    attack on a judgment than it is to a procedural step in the direct appeal of that judgment’ ” and
    rejected the state’s argument that the filing of a section 115-4.1(e) motion was a prerequisite
    to an appeal of a judgment in absentia. Id. at 516 (quoting Partee, 
    125 Ill. 2d at 35
    ). Dupree
    then allowed the appeal of the conviction and sentence but indicated it would limit review of
    trial issues under section 115-4.1(g) to issues of fundamental fairness or violations of due
    process. Id. at 518-519. However, as the Dupree special concurrence (Gordon, J.) and dissent
    (Cousins, J.) persuasively argue, the clear language of section 115-4.1(g) provides for no such
    limitation. Because we have jurisdiction under section 115-4.1(g), we address defendant’s
    arguments against his conviction and sentence on their merits.
    ¶ 28        Defendant argues that the State prosecuted him for two counts of attempted aggravated
    criminal sexual assault on the theory that he tried to commit an act of penetration with “an
    object.” Defendant argues that there was no evidence to support this theory so his conviction
    on these two counts should be reversed outright. Defendant does not challenge his conviction
    for aggravated criminal sexual abuse.
    ¶ 29        When reviewing the sufficiency of the evidence in a criminal case, we must determine
    whether, after viewing the evidence in the light most favorable to the State, any rational trier
    of fact could have found the essential elements of the crime beyond a reasonable doubt.
    Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); People v. Smith, 
    185 Ill. 2d 532
    , 541 (1999).
    We will not reverse a criminal conviction unless the evidence is so unreasonable, improbable,
    or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Rowell, 
    229 Ill. 2d 82
    , 98 (2008). A reviewing court does not retry the defendant or substitute its judgment
    for that of the trier of fact with regards to the credibility of witnesses or the weight to be given
    to each witness’s testimony. People v. Jackson, 
    232 Ill. 2d 246
    , 280-81 (2009). Rather, we
    “carefully examine the evidence while bearing in mind that the trier of fact is in the best
    position to judge the credibility of witnesses, and due consideration must be given to the fact
    that the fact finder saw and heard the witnesses.” People v. Herman, 
    407 Ill. App. 3d 688
    , 704
    (2011).
    ¶ 30        Count III of the indictment charged defendant inter alia with attempted aggravated
    criminal sexual assault and alleged that defendant,
    “attempted an act of sexual penetration upon [M.S.], to wit: [he] touched [M.S.’s]
    breast and reached into her pants while pulling her away from the street, by the use of
    force or threat of force and Jose Pizarro Jr. caused bodily harm to [M.S.] to wit:
    scratches to [M.S.’s] body, which constituted a substantial step toward the commission
    of the offense of aggravated criminal sexual assault.”
    Count IV of the indictment alleged that defendant “attempted an act of sexual penetration upon
    [M.S.], to wit: [he] touched [M.S.’s] breast and reached into her pants while pulling her away
    from the street, by the use of force or threat of force” and that the criminal sexual assault was
    committed during the course of a kidnapping.
    ¶ 31        When defendant was indicted in 2005, a person committed the offense of aggravated
    criminal sexual assault when he commits an act of sexual penetration, uses force, and causes
    the result but not in the reasoning, and Justice Cousins dissented. See id. at 522-26 (Gordon, J., specially
    concurring); id. at 526-29 (Cousins, J., dissenting).
    -6-
    bodily harm or commits the offense during the course of another felony. 720 ILCS 5/12-
    14(a)(4) (West 2004). “A person commits an attempt when, with intent to commit a specific
    offense, he does any act which constitutes a substantial step toward the commission of that
    offense.” Id. § 8-4(a). The intent with which an act is committed may be inferred from the act
    itself and the surrounding circumstances. People v. Chambers, 
    15 Ill. App. 3d 23
    , 27 (1973).
    The determination of whether defendant took a substantial step toward the commission of the
    offense may be determined by considering the surrounding circumstances. See People v.
    Bonner, 
    37 Ill. 2d 553
    , 562 (1967).
    ¶ 32        Sexual penetration is defined as “any contact, however slight, between the sex organ or
    anus of one person by an object, the sex organ, mouth or anus of another person, or any
    intrusion, however slight, of any part of the body of one person or of any animal or object into
    the sex organ or anus of another person.” 720 ILCS 5/12-12(f) (West 2004). The jury in this
    case was instructed that sexual penetration is “any contact, however slight, between the sex
    organ or anus of one person and an object of another person.”
    ¶ 33        In this case, the evidence showed that defendant intended to commit a sexual assault on
    M.S. where he exited his vehicle and followed M.S. and her sister under a viaduct. He forcibly
    dragged M.S. up a hill, ripped off her shirt, fondled her breast, and forced his hand down her
    pants, which caused him to get an erection. He also caused her bodily harm where he left
    scratches on M.S.’s body. Defendant admitted to ASA Sullivan that he intended to rape M.S.
    but that a group of people came to M.S.’s aid. This evidence was more than sufficient for the
    jury to conclude that defendant took a substantial step towards an act of sexual penetration
    upon M.S. and that he was proven guilty beyond a reasonable doubt of attempted aggravated
    criminal sexual assault in counts III and IV.
    ¶ 34        Defendant argues that the State’s evidence was insufficient to convict him because his
    finger was not an object under the definition of sexual penetration provided to the jury based
    primarily on the State’s closing argument that “the object of another person can be a finger.”
    Defendant relies on People v. Maggette, 
    195 Ill. 2d 336
    , 347 (2001), where the defendant was
    charged with criminal sexual assault based on conduct where he placed the victim’s hand on
    his penis and he rubbed the victim’s vagina through her clothing. The issue before our supreme
    court was whether a hand or finger constituted an “object” under the definition of sexual
    penetration. In construing the statutory definition of sexual penetration, our supreme court
    interpreted the definition to encompass two broad categories of conduct. 
    Id. at 346-47
    . The
    first category, the contact clause, included any contact between the sex organ or anus of one
    person and an object, sex organ, mouth, or anus of another person. 
    Id. at 347
    . The second
    category, the intrusion clause, included any intrusion of any part of the body of one person or
    of any animal or object into the sex organ or anus of another person. 
    Id.
     The supreme court
    held the word “object” in the contact clause was limited to inanimate objects, and hands or
    fingers were not objects. 
    Id. at 349-50
    . Thus, Maggette limited the definition of sexual
    penetration with a hand or finger to situations where actual intrusion occurred, not mere
    contact.
    ¶ 35        As previously discussed, defendant was charged with attempted aggravated criminal sexual
    assault based on penetration. The State was not required to prove actual penetration. Instead,
    the State was only required to prove that defendant took a substantial step in committing the
    offense of aggravated criminal sexual assault. It is axiomatic that the prosecutor’s argument in
    closing argument is not evidence and, given the charge was attempted aggravated criminal
    -7-
    sexual assault and that the jury was properly instructed on the essential elements of the offense,
    we find that Maggette is inapplicable here.
    ¶ 36       Accordingly, we affirm defendant’s convictions for attempted aggravated criminal sexual
    assault under counts III and IV.
    ¶ 37       Defendant asks this court to correct his presentence custody credit and the mittimus, as it
    shows that defendant was convicted of the wrong count of aggravated criminal sexual abuse.
    This issue is governed by Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019), which was
    adopted after defendant filed his brief. Rule 472 sets forth the procedure in criminal cases for
    correcting certain sentencing errors, including “[e]rrors in the imposition or calculation of
    fines, fees, assessments, or costs”; “[e]rrors in the application of per diem credit against fines”;
    “[e]rrors in the calculation of presentence custody credit”; and “[c]lerical errors in the written
    sentencing order.” Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). The rule provides that, in criminal
    cases, “the circuit court retains jurisdiction to correct” the enumerated errors “at any time
    following judgment ***, including during the pendency of an appeal.” 
    Id.
     Additionally, “[n]o
    appeal may be taken” on the ground of any of the sentencing errors enumerated in the rule
    “unless such alleged error has first been raised in the circuit court.” Ill. S. Ct. R. 472(c) (eff.
    Mar. 1, 2019).
    ¶ 38       More recently, our supreme court amended Rule 472 by adding paragraph (e) (Ill. S. Ct. R.
    472(e) (eff. May 17, 2019)), which provides:
    “In all criminal cases pending on appeal as of March 1, 2019, or appeals filed thereafter
    in which a party has attempted to raise sentencing errors covered by this rule for the
    first time on appeal, the reviewing court shall remand to the circuit court to allow the
    party to file a motion pursuant to this rule.”
    ¶ 39       Defendant’s appeal was pending on March 1, 2019. Thus, pursuant to the provisions of
    Rule 472, we remand to allow defendant the opportunity to move the circuit court to correct
    any sentencing errors.
    ¶ 40                                        CONCLUSION
    ¶ 41       Considering the foregoing, we affirm defendant’s convictions under counts III and IV. We
    remand to the trial court to allow defendant the opportunity to file a motion to correct any
    sentencing errors.
    ¶ 42      Affirmed and remanded.
    -8-