People v. Gallano , 2019 IL App (1st) 160570 ( 2020 )

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People v. Gallano, 2019 IL App (1st) 160570Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TIMOTHY GALLANO, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-16-0570
Filed December 13, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 02-CR-5763; the
Review Hon. Luciano Panici, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Daniel T. Mallon, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Sara McGann, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Timothy Gallano, appeals from the order of the circuit court dismissing, on the
State’s motion, his petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1
et seq. (West 2008)). On appeal, defendant does not argue that his petition has substantive
merit. Instead, he argues that postconviction counsel failed to comply with the requirements of
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) by failing to amend his petition to
include notarized affidavits from two potential witnesses. We affirm.
¶2 I. JURISDICTION
¶3 In April 2009, defendant filed a postconviction petition. The State filed a motion to dismiss
the petition in September 2015. The circuit court granted the State’s motion and dismissed the
petition on February 26, 2016. Defendant filed his notice of appeal that same day. Accordingly,
this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill.
Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017) governing
appeals from a final judgment in a postconviction proceeding.
¶4 II. BACKGROUND
¶5 Following a jury trial, defendant was found guilty of the 1999 first degree murder of Stacy
Bravo and concealment of her homicidal death and sentenced to concurrent prison terms of 60
years and 5 years, respectively. We reversed and remanded for a new trial based on an error
that occurred during jury deliberations. People v. Gallano, 354 Ill. App. 3d 941 (2004). On
remand, a second jury found defendant guilty of the same offenses, and he was given the same
sentences. We affirmed the convictions. People v. Gallano, No. 1-06-1189 (2007)
(unpublished order under Illinois Supreme Court Rule 23). Defendant filed an unsuccessful
pro se petition to vacate the conviction pursuant to section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2008)), and we affirmed on appeal, allowing appellate
counsel leave to withdraw. 1 People v. Gallano, No. 1-10-3370 (2012) (unpublished summary
order under Illinois Supreme Court Rule 23(c)). In April 2009, defendant filed the pro se
petition for postconviction relief at issue here.
¶6 The evidence underlying defendant’s convictions is adequately set forth in our order
affirming defendant’s convictions after remand (Gallano, No. 1-06-1189), and we set forth
only the evidence and procedural history necessary for an understanding of this appeal.
¶7 The evidence presented at the first and second trials was substantially similar. The State
presented evidence that Bravo disappeared in 1999. Defendant was Bravo’s boyfriend and told
her family that Bravo went to a party with a girlfriend and never returned. At the time,
defendant was living in Jack Moretti’s house. In 2002, Moretti gave a police detective
permission to search his home. On the basement floor, police found human blood that matched
the DNA of Bravo’s parents. Police took defendant into custody and accompanied him to
1
The circuit court originally denied defendant’s petition to vacate conviction sua sponte less than
30 days after it was filed. We vacated the judgment and remanded for further proceedings because the
denial violated the procedural limitation announced in People v. Laugharn, 233 Ill. 2d 318, 323 (2009).
People v. Gallano, No. 1-08-2819 (2010) (unpublished summary order under Illinois Supreme Court
Rule 23(c)). On remand, the circuit court again denied the petition.
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Arlene Bonta’s farm, where they recovered a 55-gallon plastic drum Bonta had been storing
since 1999 at defendant’s request. Bravo’s body was in the drum, covered with concrete and
motorcycle parts. Bravo had been shot in the head five times and had a contact shot to the back
of her head. From inside Bravo’s skull, a pathologist recovered two pieces of lead and five
pieces of jacketing, all from the same firearm.
¶8 Following defendant’s arrest, he told Doug Hoglund, deputy chief of the Blue Island Police
Department, that he and Bravo were living at Moretti’s home in September 1999. One morning,
Bravo argued with defendant and pointed a gun at him. Defendant took the gun away and shot
Bravo in the head more than once. Moretti came out of the bedroom where he had been
sleeping, and he and defendant placed Bravo’s body in the trunk of her car. They later put
Bravo’s body in a 55-gallon drum, covering it with cement and motorcycle parts, and defendant
took the barrel to Bonta’s farm.
¶9 In a videotaped interview, defendant told Assistant State’s Attorney Terrence Reilly that
Bravo yelled and pointed a gun at him, he tried to take the gun, and it went off. The next thing
he remembered was Moretti tapping him on the shoulder. Reilly was also present for Moretti’s
videotaped statement, in which Moretti stated the gun used in the shooting was his. Moretti
invoked his fifth amendment right against self-incrimination and did not testify at trial.
¶ 10 Defendant testified that he had a relationship with Bravo, who he met through Moretti.
Bravo sold drugs for Moretti and owed him money. On the night Bravo died, defendant and
Bravo were in Moretti’s basement. Bravo became upset, approached defendant, and pointed a
gun at him. He reached up, grabbed her hand, and pushed her away into some chairs. The gun
“went off.” Defendant did not know how many times the gun went off and never put his hand
on the trigger. Moretti, who was sleeping in an adjacent bedroom, came into the room. He later
helped defendant hide Bravo’s body in a barrel, cover it with concrete, and take it to Bonta’s
farm.
¶ 11 In defendant’s initial appeal, we reversed his convictions for first degree murder and
concealment of a homicidal death and remanded for a new trial based on an error during jury
deliberations. Gallano, 354 Ill. App. 3d 941. Although not relevant to the basis for the remand,
we addressed defendant’s argument regarding the trial court’s exclusion of the testimony of
Alonzo Pratt, as it would likely arise on retrial. Id. at 955. Defendant argued that the trial court
erred when it allowed Pratt, a potential defense witness, to invoke his fifth amendment right
against self-incrimination. Id. Defendant sought to introduce Pratt’s testimony or, in the
alternative, an affidavit, in which Pratt discussed statements Moretti made to Pratt while they
were in jail together. In the affidavit, which we quoted in full, Pratt averred that Moretti told
him that he convinced “a girl” to pull a gun on a “homeless wimp-type guy.” (Internal quotation
marks omitted.) Id. at 956. Moretti told Pratt the girl did as he instructed and was then shot and
killed in his apartment. Moretti helped hide her body. Moretti also said that he lied to the police,
“put a case on” the “guy” in order to get help with his own case, and expected immunity in
exchange for his testimony against the “guy.” (Internal quotation marks omitted.) Id.
¶ 12 We held that it was not an abuse of discretion for the trial court to exclude Pratt’s testimony
regarding the statements made to him by Moretti. We did not address the issue of whether Pratt
would properly invoke this fifth amendment right, finding instead that Pratt’s potential
testimony would have been inadmissible hearsay at trial and would not have fallen within a
recognized exception. Id. We noted, inter alia, the statement did not corroborate defendant’s
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self-defense theory as Moretti did not indicate he was present when the gun discharged and
defendant himself had testified Moretti came into the room after Bravo was shot. Id. at 957.
¶ 13 In his second appeal, following his convictions on remand, defendant argued in relevant
part that the trial court abused its discretion when it allowed Moretti to invoke his fifth
amendment privilege to avoid testifying. Gallano, No. 1-06-1189, slip order at 14. We held
that the trial court did not abuse its discretion in allowing Moretti not to testify because Moretti
had a reasonable fear of self-incrimination. Id. at 15. We pointed out that Moretti had been
advised by counsel not to testify and, at the first trial, defendant had presented the theory that
Moretti had a motive to commit the murder, as Moretti was in the basement when the murder
occurred, Bravo owed Moretti drug money, and Moretti’s gun was the murder weapon. Id.
¶ 14 We noted that Moretti had given conflicting statements about his possible involvement in
the shooting, and it was thus unclear to which version of events he would testify at trial. Id. at
15-16. In a December 21, 2005, affidavit, Moretti had stated he was sleeping in the basement
and awakened by “two pops.” Id. at 16. When he walked into the adjacent room, he saw
defendant standing “with his gun in his hand” and Bravo sprawled over a chair. Id. Defendant
told Moretti that Bravo had attacked him. Id. We found this affidavit was inconsistent with not
only the videotaped statement Moretti gave to police but also with the account he gave to Pratt
as recounted in Pratt’s affidavit. We concluded that, in light of the inconsistent statements,
“Moretti had reasonable cause to apprehend further danger to himself from his answers to
questions from the defense and cross-examination by the State at trial.” Id. at 17.
¶ 15 In April 2009, defendant filed the pro se petition for postconviction relief now at issue,
supported by more than 20 affidavits and over 100 pages of exhibits. 2 The petition is
approximately 45 pages in length and contains 28 numbered contentions of error, many with
multiple subparts. Pursuant to the arguments set forth in defendant’s briefs on appeal, only
contentions XI and XII are relevant here.
¶ 16 Contention XI is that defendant did not receive a fair trial “due to excluded evidence of a
third party’s guilt.” In support, defendant argued that the trial court should have admitted the
testimony of Pratt regarding what Moretti told him about the shooting, contending that the
testimony falls under an exception to the hearsay rule and corroborates defendant’s self-
defense claim. Defendant referred to Pratt’s undated, unnotarized affidavit, in which Pratt
averred that, while he and Moretti were in jail together, Moretti told him “one night, while he
and this girl were arguing over money in his apartment, he convinced her to pull a gun on the
homeless wimp-type guy to scare him. Jack Moretti told me that this girl did as he instructed
her to do, and she was then shot and killed in his apartment that night.” 3 Pratt averred that
Moretti told him he lied to the police about what happened that night, “put a case on” the
homeless wimp-type guy to help himself in his own pending fraud and drug cases, would
continue to lie to help himself, and expected to get immunity in exchange for his testimony
against the “guy.” Defendant argued that, although “excluded as hearsay in the first trial,”
Pratt’s statement should have been admitted as a statement against penal interest as it showed
2
The record contains two pro se postconviction petitions, one filed stamped April 14, 2009, and the
other April 22, 2009. They appear to be identical otherwise.
3
Given its content, the Pratt affidavit appears to be the same affidavit discussed in our decision on
defendant’s first appeal. See Gallano, 354 Ill. App. 3d at 955-56 (setting forth content of the Pratt
affidavit).
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Moretti caused the events. He also claimed the statement corroborated his self-defense claim
as it showed Bravo threatened him with a gun.
¶ 17 Contention XII asserts defendant was denied his right to a fair trial “when the State
intimidated a crucial defense witness to keep him from testifying.” In support, defendant
referred to an unnotarized affidavit by Moretti dated December 23, 2005. 4 Defendant argued
that Moretti appeared on the day of trial prepared to testify that, as set forth in his affidavit, he
was awakened by “two pops,” went into the next room where he saw defendant holding a gun
and Bravo sprawled over a chair, and believed defendant when he said “she attacked me,” thus
supporting defendant’s self-defense version of events. Defendant claimed that, to keep the jury
from hearing this testimony, the State intentionally persuaded Moretti not to testify by
informing the trial court that the State could charge him with murder and telling Moretti,
outside the courtroom, that the defense was trying to “jam” him up with the case. In his
affidavit, Moretti claimed that, when he appeared in court on December 21, 2005, pursuant to
a subpoena, an assistant state’s attorney approached him to interview him regarding his
testimony. Moretti told him that he was not going to speak with him “after what you guys did
to me last time.” Moretti averred that the attorney then told him, “ ‘[defendant’s] attorneys are
going to try to jam you up with this murder, because there is no statute of limitations on
murder,’ in an apparent attempt to get me to talk to him.” When Moretti reiterated his position,
the conversation ended.
¶ 18 The circuit court docketed the petition and, in June 2009, appointed the public defender to
represent defendant. The matter was continued repeatedly. On March 13, 2015, the public
defender filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
In the certificate, counsel stated that she had consulted with defendant to ascertain his
contentions of deprivations of constitutional rights, examined the record of trial and sentencing
proceedings, and had not amended defendant’s pro se postconviction petition, as it “adequately
sets forth the petitioner’s claims of deprivation of his constitutional rights.”
¶ 19 On September 18, 2015, the State filed a motion to dismiss defendant’s postconviction
petition. The State raised numerous objections to defendant’s claims, including, as relevant
here, contentions XI and XII were res judicata as they had been addressed in our prior
decisions, Moretti’s affidavit did not show that the State intimidated him, and the circuit court
could not consider Moretti’s affidavit in support of defendant’s claims because the affidavit
had not been notarized. Postconviction counsel filed a response to the State’s motion to dismiss
but did not directly address the lack of notarization. During oral argument on the motion, the
State began to discuss Moretti’s affidavit, and the court interjected, “it’s not notarized.” The
circuit court granted the State’s motion and dismissed the petition. Defendant appealed.
4
The Moretti affidavit appears to be different than his affidavit discussed in our decision on
defendant’s second appeal. See Gallano, No. 1-06-1189, slip order at 15-16 (setting forth content of
the Moretti affidavit). Although his averments regarding the shooting appear to be the same, the dates
of the affidavits are different, and our prior decision does not reference any averments regarding the
State telling him it could charge him with murder and that defense counsel was trying to “jam” him up
with the case.
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¶ 20 III. ANALYSIS
¶ 21 Defendant contends that he was denied the reasonable assistance of appointed
postconviction counsel and his petition should be remanded for further second-stage
proceedings with the assistance of new postconviction counsel. Specifically, he contends that
counsel failed to adequately represent him under Rule 651(c) because she did not amend his
petition to include notarized affidavits from Pratt and Moretti.
¶ 22 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) provides a
mechanism by which those under criminal sentence can assert their convictions were the result
of a substantial denial of their rights under the United States Constitution and/or the Illinois
Constitution. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A postconviction proceeding
contains three distinct stages. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At the first stage, the
circuit court may dismiss a petition if it determines, within 90 days, that the petition is frivolous
or patently without merit. Id. If not dismissed at the first stage, the petition advances to the
second stage. Id. Here, the circuit court dismissed defendant’s petition at the second stage.
¶ 23 At the second stage, counsel may be appointed for the petitioner. Id. Appointed
postconviction counsel may amend the petition as necessary, and the State is allowed to file a
motion to dismiss or an answer to the petition. Id. at 10-11. To survive dismissal at the second
stage, a petition and any accompanying documentation must make a substantial showing of a
constitutional violation. People v. Bailey, 2017 IL 121450, ¶ 18. The defendant’s claims must
be liberally construed in light of the trial record, and all factual allegations not positively
rebutted by the record are accepted as true. People v. Hall, 217 Ill. 2d 324, 334 (2005). We
review de novo the second stage dismissal of a postconviction petition. Id.¶ 24 Defendant challenges the assistance he received from his appointed postconviction
counsel. The right to assistance of counsel during postconviction proceedings is not a matter
of constitutional right but rather a matter of “ ‘legislative grace.’ ” People v. Bell, 2014 IL App
(3d) 120637, ¶ 10 (quoting People v. Pinkonsly, 207 Ill. 2d 555, 567 (2003)). A petitioner is
not entitled to the effective assistance of counsel constitutionally required at trial or on direct
appeal. Id. Instead, the Post-Conviction Hearing Act requires only that counsel provide a
“ ‘reasonable level of assistance.’ ” Id. (quoting People v. Suarez, 224 Ill. 2d 37, 42 (2007)).
Counsel must provide reasonable assistance during all stages of postconviction proceedings.
See People v. Johnson, 2018 IL 122227, ¶ 18.
¶ 25 The parameters of a “reasonable level of assistance” are set by Illinois Supreme Court Rule
651(c) (eff. Feb. 6 2013), which imposes three duties on appointed postconviction counsel in
order to ensure that counsel shapes the defendant’s claims into a proper legal form and presents
them to the court. People v. Profit, 2012 IL App (1st) 101307, ¶ 18. Under the rule, either the
record or a certificate filed by counsel must show that counsel (1) consulted with the petitioner
to ascertain his contentions of constitutional deprivations, (2) examined the record of the trial
proceedings, and (3) made any amendments to the filed pro se petitions “necessary for an
adequate presentation” of the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013);
Profit, 2012 IL App (1st) 101307, ¶ 18. Encompassed in the third duty is the duty to remedy
procedural defects in a petition, which includes a requirement to remedy an invalid affidavit.
People v. Turner, 2012 IL App (2d) 100819, ¶ 41. Substantial compliance with Rule 651(c) is
sufficient. Profit, 2012 IL App (1st) 101307, ¶ 18.
¶ 26 The filing of a Rule 651(c) certificate by postconviction counsel averring that counsel has
complied with the three requirements of Rule 651(c) creates a presumption of compliance with
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the rule. Bell, 2014 IL App (3d) 120637, ¶ 10. Where postconviction counsel files a Rule
651(c) certificate creating a presumption of compliance, it is the defendant’s burden to
overcome the presumption by demonstrating his attorney’s failure to substantially comply with
the duties mandated by the rule. Profit, 2012 IL App (1st) 101307, ¶ 19. We review de novo
compliance with a supreme court rule. People v. Jones, 2011 IL App (1st) 092529, ¶ 19.
¶ 27 Here, postconviction counsel filed a Rule 651(c) certificate certifying that she consulted
with defendant to determine his constitutional claims, reviewed the record of the trial and
sentencing proceedings, and found no need to amend defendant’s pro se petition as it
adequately set forth defendant’s claims of deprivation of his constitutional rights, thus creating
a rebuttable presumption of compliance with Rule 651(c). See Profit, 2012 IL App (1st)
101307, ¶ 19.
¶ 28 Defendant contends that he rebutted that presumption by showing that counsel failed to
make two necessary amendments to the petition in violation of the third duty under Rule
651(c). Specifically, defendant claims that postconviction counsel had a duty to amend the
petition by having the unnotarized affidavits of Moretti and Pratt properly executed.
¶ 29 Defendant does not argue that his claims based on the affidavits have substantive merit.
Instead, citing Suarez, 224 Ill. 2d at 47, he argues that remand is necessary regardless of
whether his claims have merit because counsel failed to comply with Rule 651(c). In Suarez,
the supreme court found that postconviction counsel failed to comply with Rule 651(c) where
he did not file a Rule 651(c) certificate and the record did not show that he consulted with
defendant as required by the rule. Id. at 42, 44. In this context, Suarez held that remand is
required where counsel failed to fulfill the Rule 651(c) duties “regardless of whether the claims
raised in the petition had merit” and that noncompliance with the rule cannot be excused on
the basis of harmless error. Id. at 47, 52.
¶ 30 Unlike in Suarez, postconviction counsel here did file a valid Rule 651(c) certificate, thus
creating a rebuttable presumption that she complied with the requirements of the rule. Profit,
2012 IL App (1st) 101307, ¶ 23. As our supreme court explained in People v. Greer, 212 Ill.
2d 192, 205 (2004), the third duty under Rule 651(c) does not require postconviction counsel
to amend a petition to advance frivolous or spurious claims on a defendant’s behalf. “If
amendments to a pro se postconviction petition would only further a frivolous or patently
nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.” Id. Thus,
where, as here, the presumption of reasonable assistance is present, “the question of whether
the pro se allegations had merit is crucial to determining whether counsel acted unreasonably
by not filing an amended petition.” Profit, 2012 IL App (1st) 101307, ¶ 23. Accordingly, we
must determine whether the pro se allegations in defendant’s petition that were supported by
Pratt and Moretti’s unnotarized affidavits amounted to meritorious claims. For the following
reasons, we find that neither claim has merit.
¶ 31 Defendant contends that he attached Pratt’s affidavit in support of his allegation that he
was denied a fair trial due to the exclusion of Pratt’s testimony and/or Pratt’s affidavit,
specifically citing to his contention XI. Contention XI alleges Pratt’s statement/testimony
regarding what Moretti told him about the shooting corroborates defendant’s self-defense
claim and was admissible as an exception to the hearsay rule as a declaration against penal
interest. We specifically rejected this contention in our decision on defendant’s first appeal,
holding that Moretti’s statement to Pratt did not support defendant’s self-defense claim and
was not against Moretti’s penal interest. Gallano, 354 Ill. App. 3d at 957-58. We concluded:
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“Based on the totality of the circumstances, it was not an abuse of discretion for the trial court
to exclude Pratt from testifying regarding the statements made to him by Moretti.” Id. at 958.
“The doctrine of res judicata bars consideration of issues that were previously raised and
decided on direct appeal.” People v. Blair, 215 Ill. 2d 427, 443 (2005). Accordingly,
defendant’s contention regarding the exclusion of Pratt’s testimony is barred by res judicata.
We find that counsel did not provide unreasonable assistance when she did not support this
meritless claim with a notarized affidavit from Pratt.
¶ 32 Counsel also did not provide unreasonable assistance when she failed to amend the petition
with a notarized affidavit from Moretti. Citing his contention XII, defendant contends that he
attached Moretti’s affidavit in support of his allegation that he was denied his right to a fair
trial when the State intimidated Moretti to keep him from testifying. Contention XII alleges
that an “accusation and threat” by the State to charge Moretti with murder “was calculated to
transform Moretti from a willing witness to one who would refuse to testify.” In support,
defendant alleged that an assistant state’s attorney told the trial judge in Moretti’s presence
that, if Moretti testified, the State would charge him with murder and told Moretti outside court
that defendant’s attorneys “are going to try to jam you up with this murder, because there is no
statute of limitations on murder.”
¶ 33 The intimidation allegation is not, as the State contends, barred by res judicata, as
intimidation was not argued in defendant’s second appeal. It is, however, forfeited. The
doctrine of forfeiture bars claims that, although not raised, could have been raised earlier. Id.
at 443-44. Moretti’s December 21, 2005, affidavit relied on in our decision in the second appeal
is dated only two days before the December 23, 2005, unnotarized affidavit defendant attached
to his postconviction petition. See Gallano, No. 1-06-1189, slip order at 15-16 (setting forth
the date and content of Moretti’s affidavit). Thus, defendant could have raised the intimidation
claim based on the new affidavit in his second appeal and has forfeited the issue.
¶ 34 Further, when we examine the merits of the intimidation allegation, we find, as the circuit
court did, that the record demonstrates it has no basis in law or fact. The court had appointed
an attorney to consult with Moretti regarding his fifth amendment right when it became clear
Moretti might be charged with murder. Moretti decided he would not testify only after
consulting with his attorney, and defendant points to nothing in the record demonstrating
Moretti was in fact intimidated by the State. Nor does Moretti’s affidavit support the allegation.
Moretti averred that, when he appeared at court pursuant to a subpoena, he refused to be
interviewed by an assistant state’s attorney regarding his testimony. The attorney then, “in an
apparent attempt to get me to talk to him,” told Moretti that defendant’s attorneys were going
“jam” him up with the murder. Moretti averred that he “reiterated” his position and the
conversation ended. Nowhere in his affidavit does Moretti state that he was intimidated by this
effort or that he exercised his fifth amendment right against self-incrimination as a result of
the State’s conduct. Thus, even if Moretti’s affidavit was properly notarized, it would not have
supported defendant’s intimidation allegation. Accordingly, the allegation was without merit,
and counsel did not provide unreasonable assistance when she did not amend this meritless
allegation with a notarized affidavit from Moretti.
¶ 35 IV. CONCLUSION
¶ 36 For the foregoing reasons, we conclude that defendant has not rebutted the presumption
created by the filing of a Rule 651(c) certificate that postconviction counsel provided
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reasonable assistance. We affirm the judgment of the circuit court of Cook County dismissing
defendant’s postconviction petition.
¶ 37 Affirmed.
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