People v. Mendoza

FIRST DIVISION
June 7, 2010
No. 1-08-3411
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 6555
)
JIMMIE MENDOZA, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The defendant Jimmie Mendoza appeals from the second-stage
dismissal of his amended petition for relief under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2008)). The defendant contends that a remand is in order because
postconviction counsel rendered "unreasonable, substandard, level
of assistance in attempting to shape petitioner's pro se claims
into an Amended Petition" and the circuit court erred in
dismissing his amended petition, which alleged ineffective
assistance of trial counsel, among other claims.
We reject the defendant's first contention that
postconviction counsel violated Supreme Court 651(c) because he
makes no showing that postconviction counsel contravened any of
the specific duties imposed by the rule. 134 Ill. 2d R. 651(c).
No. 1-08-3411
We affirm the circuit court's determination that the defendant's
claim of ineffective assistance of trial counsel is subject to
dismissal.
BACKGROUND
Following a jury trial, the defendant was convicted of
attempt (murder) and aggravated battery with a firearm in the
September 2000 shooting of Ruben Castruita. At trial, the
defendant was represented by private counsel, Robert Callahan.
During posttrial proceedings, the trial judge vacated the
aggravated battery conviction and sentenced the defendant to 25
years in prison on attempt, to be followed by an enhanced
sentence of 25 years for inflicting great bodily harm with a
firearm pursuant to section 8-4(c)(1)(D) of the Criminal Code of
1961 (720 ILCS 5/8-4(c)(1)(D) (West 2002)).
The evidence at trial established that following an
altercation between Castruita and the defendant's girlfriend in
the early evening on September 17, 2000, the defendant drove to
Castruita's house around 10 p.m. While exiting the vehicle, the
defendant fired a handgun at Castruita, striking him in the leg.
As the defendant approached Castruita, according to witnesses he
shouted, "Don't f--k with [my] family." Castruita threw a beer
bottle at the defendant. The defendant fired three more shots,
striking Castruita in the leg and torso.
2
No. 1-08-3411
Castruita lost consciousness and awoke in Mount Sinai
Hospital, where he remained for two months. He lost a kidney,
his spleen, and a portion of his pancreas and was unable to walk
for approximately six months. In February 2001, Castruita viewed
a lineup at the police station and identified the defendant as
the shooter.
At trial, five eyewitnesses identified the defendant as the
shooter. The witnesses detailed the events of the evening. The
defense stipulated to the testimony of Dr. Zarat, Castruita's
treating physician at Mount Sinai Hospital, concerning the extent
of Castruita's injuries.
The defense presented only one witness, the defendant's
mother. She testified that on the evening of the altercation
Castruita was "very intoxicated," staggering and yelling loudly.
She claimed she could smell the drug PCP on his breath.
It was uncontested before the jury that the defendant fired
the shots that struck Castruita. The question for the jury was
whether the defendant shot Castruita with the specific intent to
kill. Defense counsel argued to the jury that the defendant only
shot at Castruita's legs. He argued: the defendant did not aim
at Castruita's torso when he fired the shot that caused the
extensive internal injuries, the shot to the torso was not
intentional, and the defendant did not have the specific intent
3
No. 1-08-3411
to kill Castruita. The jury convicted the defendant of attempted
murder and aggravated battery. The defendant dismissed trial
counsel and retained attorney Thomas Moore for posttrial
proceedings.
On direct appeal, the defendant, represented by Moore and
Travis Richardson, raised numerous issues, only one of which we
found meritorious. The defendant asserted that his enhanced
sentence was improper because the enabling section had been
declared unconstitutional by the Illinois Supreme Court in People
v. Morgan, 203 Ill. 2d 470, 492, 786 N.E.2d 994 (2003) (overruled
two years later by People v. Sharpe, 216 Ill. 2d 481, 839 N.E.2d
492 (2005)). The State agreed. We affirmed the defendant's
conviction and modified the sentence accordingly. People v.
Mendoza, No. 1-03-0704 (2004) (unpublished order under Supreme
Court Rule 23). The supreme court denied the defendant leave to
appeal. People v. Mendoza, 212 Ill. 2d 546, 824 N.E.2d 289
(2004).
On May 25, 2005, the defendant filed a pro se petition for
postconviction relief. On October 17, 2007, the defendant's
retained counsel, Angela Lockett, filed an amended postconviction
petition. The amended petition alleged four claims: (1) the
defendant was denied his counsel of choice when, on the day his
case was set for trial, he informed the court he was unhappy with
4
No. 1-08-3411
Callahan and wished to be represented by different counsel; (2)
he was denied his right to be present when the jury returned two
questions during deliberations; (3) actual innocence; and (4)
ineffective assistance of both trial and appellate counsel. The
amended petition alleged trial counsel rendered ineffective
assistance in a variety of ways. The allegations included trial
counsel's failure to introduce evidence of the "inner workings of
gang rules," which required retaliation only for the death of a
fellow gang member and therefore supported the defendant's lack
of intent to kill; counsel's failure to produce evidence that the
defendant was angry and under the influence of drugs and alcohol
at the time he shot Castruita; counsel's failure to tender a
reckless conduct instruction; counsel's failure to call the
defendant's sister to testify that Castruita had offered to drop
the charges in exchange for money; and counsel's decision to
stipulate to medical testimony instead of calling a medical
expert that would have supported the defendant's claim that he
did not aim at any vital organ when Castruita was shot in the
torso.
On October 29, 2008, Judge Joseph Claps, in a written order,
granted the State's motion to dismiss, rejecting each
constitutional claim asserted in the amended petition. Judge
Claps specifically held the defendant failed to show either
5
No. 1-08-3411
deficient performance by trial counsel or that the defendant
suffered actual prejudice by the alleged omissions of counsel.
Judge Claps found the defendant's other claims to be entirely
conclusory, holding such claims, by their very nature, do not
establish a substantial violation of constitutional rights.
The State Appellate Defender's Office was appointed to
represent the defendant on appeal. The defendant, through
appellate counsel, now contends postconviction counsel provided
an unreasonable and substandard level of assistance. He points
to counsel's failure to attach affidavits in support of the
petition and have verified the affidavits of the defendant and
his sister accompanying the petition. The defendant contends
"post-conviction counsel watered down the factual argument that
was the key argument supporting the claim of ineffective
assistance of trial counsel. Post-conviction counsel rendered
unreasonable assistance in violation of Rule 651(c)." The
defendant asserts this cause should be remanded for further
postconviction proceedings in the circuit court, with the
appointment of new counsel, if necessary. Notwithstanding his
contention that postconviction counsel's assistance was
unreasonable, in his second issue the defendant claims the
amended petition presented sufficient allegations of trial
counsel's ineffectiveness to make a substantial showing under the
6
No. 1-08-3411
Act to entitle him to proceed further in postconviction
proceedings.
ANALYSIS
We begin with the observation that the defendant's first
issue fails to expressly claim that postconviction counsel
violated any of the specific duties mandated by Supreme Court
Rule 651(c). Instead, the defendant attacks postconviction
counsel for failing to attach signed affidavits of the defendant
or his sister, failing to attach an affidavit of the treating
physician, and failing to provide evidentiary support for the
defendant's pro se claim that Castruita's internal injuries were
caused by one of the shots he fired "because the victim 'fell-
into-the bullet,' " all of which he contends amount to
unreasonable assistance under Rule 651(c).
In response to this general challenge by the defendant to
the reasonableness of the assistance provided by postconviction
counsel, the State asserts "that a petitioner's claim of
unreasonable assistance of post-conviction counsel is not
cognizable as a free-standing claim in post-conviction
proceedings." As authority the State quotes from People v.
Rossi, 387 Ill. App. 3d 1054, 1059, 902 N.E.2d 158 (2009), "When
considering an appeal from the dismissal of a petitioner's
7
No. 1-08-3411
postconviction petition, the appellate court is limited to
considering matters that are of constitutional dimension." The
defendant makes no reply to the State's point of law. While we
find Rossi does not dictate the outcome here, it does provide
guidance in assessing whether a proper claim under Rule 651(c)
has been made before us.
In Rossi, the postconviction proceedings before the circuit
court followed the dismissal of his direct appeal for lack of
jurisdiction. Rossi, 387 Ill. App. 3d at 1055. The circuit
court allowed the defendant the opportunity to challenge his
pleas of guilty and appointed counsel to assist the defendant in
his motion to withdraw his guilty pleas. Rossi, 387 Ill. App. 3d
at 1055. The circuit court determined that the defendant's pleas
of guilty were voluntary and the Third District affirmed. Rossi,
387 Ill. App. 3d at 1055, citing People v. Rossi, No. 3-99-0629
(2001) (unpublished order pursuant to Supreme Court Rule 23) (166
Ill. 2d R. 23).
In October 2001, the defendant filed a successive pro se
postconviction petition, in which he once again challenged the
effectiveness of trial counsel, but added that appointed counsel
on his motion to vacate provided deficient representation.
Rossi, 387 Ill. App. 3d at 1056. The circuit court appointed new
counsel to represent the defendant in the successive
8
No. 1-08-3411
postconviction petition, but after hearing testimony from counsel
appointed to assist the defendant on his motion to vacate,
dismissed the successive petition. Rossi, 387 Ill. App. 3d at
1056.
Within 30 days of the dismissal order, the defendant "filed
several pro se motions, including a petition for rehearing which
included a prayer that petitioner be allowed to amend the
petition for rehearing and alleged among other things that
[appointed counsel's] representation was unreasonable for failing
to amend his successive postconviction petition to adequately
raise the issues of ineffective assistance of [counsel on his
motion to vacate,] trial counsel, and appellate counsel." Rossi,
387 Ill. App. 3d at 1056. The circuit court appointed other
counsel to represent the defendant on his petition for rehearing.
In its order, the court directed, " '[Appointed counsel] shall
examine the record and file a certificate pursuant to Rule
651.' " Rossi, 387 Ill. App. 3d at 1056. Following argument,
the circuit court denied the defendant's motion. Rossi, 387 Ill.
App. 3d at 1056-57.
Writing for the court, Justice McDade noted, at the start of
her analysis, "that petitioner does not contest the merits of his
successive postconviction petition or his pro se petition for
rehearing." Rossi, 387 Ill. App. 3d at 1057. Rather, the
9
No. 1-08-3411
defendant sought a remand because counsel, appointed on what he
titled "petition for rehearing," did not file a certificate or
otherwise demonstrate compliance with Rule 651(c). Rossi, 387
Ill. App. 3d at 1057. The issue of first impression was whether
Rule 651(c) applies to counsel appointed on the defendant's
petition for rehearing when the "petition for rehearing ***
contains a new allegation of unreasonable assistance on the part
of original postconviction counsel." Rossi, 387 Ill. App. 3d at
1057.
In the course of her discussion of the application of Rule
651(c) in the context of the specific proceedings below, Justice
McDade made clear that a challenge to the "reasonableness" of
postconviction counsel's assistance is properly raised only when
the presumption of compliance with Rule 651(c) is overcome.
Where a certificate in accordance with Rule 651(c) is filed, "the
presumption exists that petitioner received the representation
Rule 651(c) requires a postconviction petitioner receive during
second-stage proceedings." Rossi, 387 Ill. App. 3d at 1060; see
also People v. Richardson, 382 Ill. App. 3d 248, 258, 888 N.E.2d
553 (2008) (postconviction counsel's "duty to amend under Rule
651(c) is limited by ' "the constitutional claims raised by the
petitioner" [Citation]' "), quoting People v. Pendleton, 223 Ill.
2d 458, 475-76, 861 N.E.2d 999 (2006), quoting People v. Davis,
10
No. 1-08-3411
156 Ill. 2d 149, 164, 619 N.E.2d 750 (1993).
In the appeal before us, the defendant's contention against
postconviction counsel's efforts is best illustrated by his
argument that "post-conviction counsel failed to support
petitioner's claim *** with admissible evidence that the path of
the bullet showed Mr. Mendoza lacked an intent to kill." The
defendant raises no specific claim that the certificate filed by
postconviction counsel below is deficient in any manner. Nor
does he claim that postconviction counsel failed to comply with
any of the specific duties imposed by the rule. The analysis in
Rossi makes clear, review of the reasonableness of counsel's
effort is foreclosed if the presumption that Rule 651(c) was
satisfied exists. Rossi, 387 Ill. App. 3d at 1060; see People v.
Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977 (2007) ("To ensure
that postconviction petitioners receive [the] *** assistance
[provided by the Act], Rule 651(c) imposes specific duties on
postconviction counsel"); People v. Moore, 189 Ill. 2d 521, 543,
727 N.E.2d 348 (2000) ("[W]e hold that post-conviction counsel
complied with the requirements of Rule 651(c) and thus rendered
reasonable assistance"); Richardson, 382 Ill. App. 3d at 253
(claim rejected that postconviction "counsel's certificate is
'incomplete and therefore insufficient to create a presumption of
compliance with Rule 651(c)' "); cf. People v. Bashaw, 361 Ill.
11
No. 1-08-3411
App. 3d 963, 970, 838 N.E.2d 972 (2005) (dismissal of
postconviction petition reversed where certificate deficient and
cause remanded for compliance with Rule 651(c)).
The adequacy of the defendant's initial contention turns on
whether the defendant has made any showing that counsel failed to
comply with any of the specific duties mandated by Rule 651(c).
"Specifically, Rule 651(c) requires that the
record disclose that post-conviction trial
counsel: (1) consulted with the petitioner to
ascertain his contentions of constitutional
deprivation; (2) examined the record of the
proceeding of the original trial; and (3)
made any amendments to the pro se petition
necessary to adequately present the
petitioner's constitutional contentions."
People v. Johnson, 154 Ill. 2d 227, 238, 609
N.E.2d 304 (1993).
A certificate pursuant to Rule 651(c) was filed in the
proceedings below and present in the record before us. As we
noted, the defendant does not contend the certificate is
inadequate; nor do we find any deficiencies in the certificate.
In the absence of a specific claim that postconviction counsel
12
No. 1-08-3411
violated any of the three duties mandated by Rule 651(c), we
question whether the defendant's first contention is subject to
review. The defendant's claim that his postconviction counsel
provided "unreasonable, substandard, level of assistance" in
amending his pro se postconviction petition appears barred by the
presumption that the defendant "received the representation Rule
651(c) requires a postconviction petitioner receive during
second-stage proceedings" when an unassailed certificate of
compliance exists in the record. Rossi, 387 Ill. App. 3d at
1060; Richardson, 382 Ill. App. 3d at 257-58.
The cases the defendant cites to support his contention that
postconviction counsel did not provide reasonable assistance do
not stand for the proposition that a general challenge to the
reasonableness of postconviction counsel's efforts is permitted
on appeal from the dismissal of a postconviction petition outside
the claim that at least one of the specific duties mandated by
Rule 651(c) was violated. Of the six cases cited by the
defendant as support that postconviction counsel rendered
unreasonable assistance in this case, only two cases found a
violation of Rule 651(c) and, in the context of a death penalty
case, each addresses a specific violation of a Rule 651(c) duty.
People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725 (1999); People
v. Johnson, 154 Ill. 2d 227, 609 N.E.2d (1993).
13
No. 1-08-3411
The defendant in Turner expressly asserted claims that the
duties outlined in Rule 651(c) were not satisfied. The supreme
court rejected the defendant's claim that the first duty, "the
consultation requirement in Rule 651(c)," had not been satisfied.
Turner, 187 Ill. 2d at 411. The supreme court rejected the
defendant's claim that postconviction counsel violated the second
duty when he failed to examine the transcripts on specific dates
because nothing of relevance to the petitioner's claims
transpired. Turner, 187 Ill. 2d at 412. However, the supreme
court found the last contention concerning the third duty to have
merit: postconviction counsel failed "to make any amendments to
the pro se post-conviction petition." Turner, 187 Ill. 2d at
412. Postconviction counsel had elected to stand on the pro se
petition and, in doing so, failed to amend the petition to allege
ineffective assistance of appellate counsel to avoid the bar of
res judicata, which triggered the circuit court's dismissal.
Turner, 187 Ill. 2d at 412-13.
The supreme court also faulted postconviction counsel for
failing to allege that the defendant was prejudiced by trial
counsel's assistance and for failing to attach any affidavits to
support the claims in the postconviction petition based on
evidence outside the record on direct appeal. Turner, 187 Ill.
2d at 413-14. The supreme court held that "post-conviction
14
No. 1-08-3411
counsel's performance was unreasonable and fell below the level
of assistance required by Rule 651(c)."
In Johnson, the defendant conceded "that the first two
requirements of Rule 651(c) were satisfied in this case."
Johnson, 154 Ill. 2d at 238. The defendant contended, however,
that postconviction counsel failed to "amend the pro se petition
in the manner necessary to adequately present the petitioner's
claims." Johnson, 154 Ill. 2d at 238-39. While postconviction
counsel filed an amended petition, the "amended petition
realleged, verbatim, every allegation in the pro se petition and
added two additional claims," but no supporting affidavits or
documents. (Emphasis in original.) Johnson, 154 Ill. 2d at 239.
Postconviction counsel did, however, file his own affidavit
detailing his efforts on behalf of the defendant.
"Post-conviction counsel filed an affidavit as a supplemental
record in this appeal, which unequivocally establishes that
counsel made no effort to investigate the claims raised in the
defendant's post-conviction petition or to obtain affidavits from
any of the witnesses specifically identified in the defendant's
pro se petition." Johnson, 154 Ill. 2d at 241.
The court noted that postconviction counsel had a duty "to
attempt to obtain affidavits from [witnesses identified by the
defendant in his pro se petition] for the purpose of shaping the
15
No. 1-08-3411
allegations in the post-conviction petition into appropriate
legal form." Johnson, 154 Ill. 2d at 247. However,
postconviction counsel had "no obligation to actively search for
sources outside the record that might support general claims
raised in [the] post-conviction petition." Johnson, 154 Ill. 2d
at 247. Ultimately, the court ruled that the record failed "to
show that post-conviction counsel amended the defendant's post-
conviction petition in the manner necessary to adequately present
the defendant's claims, as required by Rule 651(c)." Johnson,
154 Ill. 2d at 248. The court ordered a remand so that
postconviction counsel "may comply, insofar as compliance is
possible, with Rule 651(c)." Johnson, 154 Ill. 2d at 249.
The efforts by postconviction counsel here are in marked
contrast to the efforts by postconviction counsel in both Turner
and Johnson. Postconviction counsel filed an amended
postconviction petition with supporting affidavits. The
defendant does not contend that the petition fails in legal form
or omits any of his pro se claims. See People v. Perkins, 229
Ill. 2d 34, 44, 890 N.E.2d 398 (2007) ("the purpose of Rule
651(c) is to ensure that counsel shapes the petitioner's claims
into proper legal form and presents those claims to the court").
One of the accompanying affidavits came from an expert witness
that appeared on its face to support the defendant's pro se
16
No. 1-08-3411
theory of "falling-into-the bullet." Counsel also prepared
affidavits of the defendant and his sister consistent with the
allegations each had made to attack his conviction. That the
affidavits of the defendant and his sister were unverified is of
no moment when the unverified nature of the affidavits was not a
basis for the circuit court's dismissal of the amended petition.
See Johnson, 154 Ill. 2d at 245 ("While it is true that the trial
court might have found grounds, other than the absence of
supporting affidavits, to dismiss the defendant's claims, it is
not apparent from the record that the trial court did dismiss the
claims on such grounds" (emphasis in original)). The defendant
makes no claim that the allegations in each of the unverified
affidavits could be enhanced on remand. Rule 651(c) does not
require that we remand this case for purposes of verification
alone.
As we made clear, the defendant in the instant case makes no
specific claim that postconviction counsel's assistance fell
short of any of the duties outlined by Rule 651(c). Rather, the
defendant faults postconviction counsel in the assistance she
provided because the defendant's pro se claim regarding the path
of the bullet is inadequately supported by the affidavits
accompanying the petition. This claim amounts to no more than a
general claim that postconviction counsel provided unreasonable
17
No. 1-08-3411
assistance, much as a defendant would attack the reasonableness
of assistance provided by trial counsel. We agree with the
State, the "petitioner's claim of unreasonable assistance of
post-conviction counsel is not cognizable as a free-standing
claim in post-conviction proceedings." Consequently, we reject
the defendant's first contention as an improper challenge to the
assistance provided by postconviction counsel in the absence of a
meritorious claim that counsel did not comply with a specific
duty outlined in Supreme Court Rule 651(c).
Even if we were to liberally construe this contention to
claim a violation of the duty "to make any amendments to the pro
se post-conviction petition" (Turner, 187 Ill. 2d at 412), the
defendant fails to persuade us that a remand for compliance with
Rule 651(c) is warranted. Rule 651(c) does not impose upon
postconviction counsel a legal duty "to actively search for
sources outside the record that might support general claims
raised in a post-conviction petition." Johnson, 154 Ill. 2d at
247. If it is the defendant's claim that "admissible evidence"
missing from his petition exists outside the record, there is no
duty on postconviction counsel to discover that evidence.
Johnson, 154 Ill. 2d at 247. On the other hand, if the defendant
claims more factual support that he did not have the specific
intent to kill exists in the record than presented in the amended
18
No. 1-08-3411
petition, we reject such a claim out of hand. The defendant
fails to point to any such record evidence. In the absence of
such a showing, we find no basis to conclude that postconviction
counsel did not make "amendments to the petition[] filed pro se
that [were] necessary for an adequate presentation of [the
defendant's] contentions." 134 Ill. 2d R. 651(c). See People v.
Moore, 189 Ill. 2d 521, 543, 727 N.E.2d 348 (2000) (the record
shows "that post-conviction counsel complied with the
requirements of Rule 651(c) and thus rendered reasonable
assistance").
Ineffective Assistance of Trial Counsel
In an 11 page, highly detailed discussion of the defendant's
postconviction claims, the circuit court ruled the petition
"failed to make a substantial showing that [the defendant's]
constitutional rights were violated in *** the trial ***
proceedings." On de novo review of the dismissal of the
defendant's amended postconviction petition, we are unpersuaded
that the circuit court's assessment of the record evidence is at
odds with the original trial record.
A successful claim of ineffective assistance of counsel
requires a showing of both deficient representation and
prejudice. Strickland v. Washington, 466 U.S. 668, 694, 80 Lans. Ch.
19
No. 1-08-3411
Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v.
Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). A
defendant is denied effective assistance of counsel when
counsel's performance falls "below an objective standard of
reasonableness and ***, but for this substandard performance,
there is a reasonable probability that the outcome of the
proceeding would have been different." People v. McPhee, 256
Ill. App. 3d 102, 106, 628 N.E.2d 523 (1993), citing Strickland,
466 U.S. at 687-94, 80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-
68, and Albanese, 104 Ill. 2d at 525. To prove counsel's
representation was deficient, the defendant must overcome a
strong presumption that counsel's performance fell within the
wide range of reasonable assistance. People v. Coleman, 183 Ill.
2d 366, 398, 701 N.E.2d 1063 (1998). In the context of a
postconviction petition, the defendant must make a "substantial
showing" that his right to effective assistance of counsel was
violated to warrant relief. 725 ILCS 5/122-1 (West 2008).
There is no dispute that the defendant shot at Castruita
four times. The defendant shot Castruita in the leg while the
defendant was exiting the vehicle that brought him to Castruita's
home. Had the defendant ended his assault then, his trial
counsel might have had a good claim of reasonable doubt as to the
defendant's intent to kill Castruita. But the defendant did not
20
No. 1-08-3411
end his assault with a single shot. Rather, the "[d]efendant ***
exited the vehicle and approached Castruita, aiming the weapon at
his chest, saying, 'Don't f--k with [my] family.' *** Castruita
threw his beer bottle at defendant, but defendant continued to
approach Castruita and fired three more shots from about three
feet away, striking Castruita in the chest and both legs."
People v. Mendoza, No. 1-03-0704, slip op. at 3 (2004)
(unpublished order under Supreme Court Rule 23).
Based on this evidence, there is little wonder that the jury
found the defendant guilty of attempted murder. It is an
understatement to note that trial counsel could do little to cast
doubt on the State's case. Nor does the defendant point to any
deficiencies in counsel's performance before the jury. Rather,
the crux of the defendant's claim centers on trial counsel's
decision to stipulate to the testimony of Dr. Zarat, Castruita's
treating physician at Mount Sinai Hospital, and the affidavit of
Dr. William Manion, which the defendant contends supports his
theory that Castruita fell into the bullet that struck his torso.
Regarding trial counsel's decision to stipulate, the
defendant fails to inform us of any benefit the defendant hoped
to gain through any cross-examination of Dr. Zarat. While the
defendant asserts "cross-examination of the victim's treating
physician [was necessary] to establish the crucial theory about
21
No. 1-08-3411
the path of the bullet -- that the injury to the victim's left
kidney meant that the bullet entered the left lower chest - upper
abdomen while the victim was 'falling into the bullet,' " he
makes no showing that Dr. Zarat would have testified consistent
with the defendant's "crucial theory" on cross-examination. The
defendant concedes as much when he explains the need for an
expert witness. "[I]t would have been better for trial counsel
to have the medical expert witness prepared to testify because
the treating physician might disagree with the expert's
conclusions." We agree with the circuit court's finding, the
defendant's claim that trial counsel was ineffective for
stipulating to Dr. Zarat's testimony is conclusory. See People
v. Coleman, 183 Ill. 2d 366, 381, 701 N.E.2d 1063 (1998)
("Nonfactual and nonspecific assertions which merely amount to
conclusions are not sufficient to require a hearing under the
Act").
Recognizing the shortcomings of his claim that trial
counsel's decision to stipulate to the medical evidence amounted
to ineffective assistance, the defendant contends that
evidentiary support for his "crucial theory" is provided by the
affidavit of Dr. Manion. Dr. Manion averred:
"Mr. Mendoza, based on my findings, was
shooting downward when he fired at Mr.
22
No. 1-08-3411
Castruita. The path of the shots indicates
that Mr. Mendoza was not aiming towards Mr.
Castruita's head, shoulder or upper chest
area. It is my opinion that there is no
evidence that Mr. Mendoza was aiming at Mr.
Castruita's chest or abdomen when he fired
the shots." (Emphasis added.)
But the evidence before the jury is contrary to Dr. Manion's
belief regarding the defendant's aim. Castruita testified the
defendant "was pointing [the gun] at my chest." Castruita told
the jury, the defendant "shot me in the chest." The State asked
James Jaramillo, "So when the defendant backed away and raised
his arms what part of [Castruita's] body was the gun pointed at
then?" James Jaramillo testified, "His, you know, stomach."
Briana Augustyn testified that the defendant raised his arm with
the gun in hand, "Maybe not a 90 degree angle, but it was pretty
much head on." She testified that when the defendant fired the
gun, "It was pointed in the trunk of [Castruita's] body."
Finally, Hayde Canales demonstrated to the jury how the defendant
held the gun pointed at Castruita. The State described the
demonstration, "Indicating for the record she's extended her
right arm at almost a 90 degree angle from her shoulder." The
trial judge concurred, "So noted."
23
No. 1-08-3411
In its written decision, the circuit court rejected Dr.
Manion's opinion, or that of any other expert witness with the
same view of the medical records to challenge trial counsel's
performance, as nothing more than second-guessing:
"Indeed, to ruminate over the wisdom of
counsel's advice is precisely the kind of
retrospection proscribed by Strickland and
its progeny. See Strickland, 466 U.S. at
689[, 80 L. Ed. 2d at 695, 104 S. Ct. at
2065] ('[a] fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight'); see also People v. Fuller, 205
Ill. 2d 308, 331, 793 N.E.2d 526 (2002)
(issues of trial strategy must be viewed, not
in hindsight, but from the time of counsel's
conduct, and with great deference accorded
counsel's decisions)."
We agree.
The assumption underlying Dr. Manion's expert opinion
regarding the trajectory of the shots, upon which the defendant's
claim of deficient performance by trial counsel is based, is
24
No. 1-08-3411
positively rebutted by the record. See People v. Rogers, 197
Ill. 2d 216, 222, 756 N.E.2d 831 (2001) (Illinois courts have
"consistently upheld the dismissal of a post-conviction petition
when the record from the original trial proceedings contradicts
the defendant's allegations"). We reject the defendant's
contention that trial counsel's failure to call an expert, such
as Dr. Manion, makes a substantial showing that counsel's
performance fell below an objective standard of reasonableness.
Cf. People v. Popoca, 245 Ill. App. 3d 948, 615 N.E.2d 778 (1993)
(dismissal of postconviction petition reversed where trial
counsel failed to consider how an expert witness would have
assisted the defense of voluntary intoxication given that, when
raised, "the State must show beyond reasonable doubt that the
existence of the mental state for the offense was not negated by
the defendant's intoxication").
Nor are we persuaded that the defendant suffered actual
prejudice by trial counsel's failure to call Dr. Manion or
another expert that might share his view of the medical records.
There is little likelihood that the jury verdict would have
differed had a medical expert such as Dr. Manion testified to
support the defendant's lack of intent claim. It is reasonable
to infer that had such expert testimony been available to the
defendant at trial, the State would have proffered an expert of
25
No. 1-08-3411
its own, holding the view that the eyewitnesses' testimony that
the defendant fired at the torso of Castruita was consistent with
the injuries Castruita suffered, a point that appears not to have
escaped the defendant when he acknowledges that "the treating
physician might disagree with the expert's conclusions." See
Popoca, 245 Ill. App. 3d at 958-59 ("The circuit court mentioned
that if defense counsel had called an expert the State would have
called one as well").
The question before the jury even with such expert testimony
would have remained the same. As trial counsel argued, "Ladies
and Gentlemen of the jury, one question did [the defendant]
intend to kill him? Did he mean to kill him?" The intent of the
defendant at the time he fired the shots was exclusively within
the province of the jury. No amount of expert testimony based
solely on medical records, which may be subject to different
interpretations, would have undermined the testimony of the four
prosecution witnesses, including the victim, that the defendant
fired the gun consistent with the internal injuries Castruita
suffered.
Appellate counsel's suggestion that it "would have been
better" had live testimony been heard by the jury regarding the
trajectory of the shots is nothing more than hindsight. We
decline to view trial counsel's performance through the distorted
26
No. 1-08-3411
lens of hindsight. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d
at 694, 104 S. Ct. at 2065 ("It is all too tempting for a
defendant to second-guess counsel's assistance after conviction
*** and it is all too easy for a court, examining counsel's
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable").
Under the facts of this case, the defendant is unable to
overcome the strong presumption that trial counsel's performance
was the product of reasonable trial strategy, not incompetence.
See Coleman, 183 Ill. 2d at 398. Accordingly, the defendant is
unable to satisfy the first prong of Strickland. That trial
counsel undertook an unsuccessful strategy or that another
attorney would have handled the defense differently adds little
to the claim that trial counsel rendered constitutionally
deficient assistance. See People v. Palmer, 162 Ill. 2d 465,
476, 643 N.E.2d 797 (1994)("counsel's strategic choices are
virtually unchallengeable").
Even assuming, arguendo, that counsel's performance was
objectively substandard, the defendant cannot show he was
prejudiced because we find no basis to call into question the
jury's verdict that the defendant was guilty of attempted murder
when he fired four shots at Castruita. See People v. Tabb, 374
Ill. App. 3d 680, 694, 870 N.E.2d 914 (2007) ("The fact that
27
No. 1-08-3411
defendant fired his gun three times at the victim alone supports
the jury's finding of an intent to kill under [People v.
Mitchell, 209 Ill. App. 3d 562, 569, 568 N.E.2d 292 (1991)]").
The circuit court properly dismissed, without an evidentiary
hearing, the defendant's amended postconviction petition, which
included his claim of ineffective assistance of trial counsel.
CONCLUSION
In the absence of a claim that a specific duty under Rule
651(c) was violated by postconviction counsel, the defendant's
claim asserting unreasonable assistance is foreclosed by the
certificate postconviction counsel filed pursuant to Supreme
Court Rule 651(c). Even if a liberal reading of the defendant's
claim on appeal supports such a contention, no showing has been
made that postconviction counsel violated any of the duties
mandated by the rule. In his amended petition, the defendant did
not make a substantial showing of ineffective assistance of trial
counsel, thus justifying the dismissal of the petition by the
circuit court.
Affirmed.
HALL, P.J., and LAMPKIN, J., concur.
28
No. 1-08-3411
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
__________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS
Plaintiff-Appellee,
v.
JIMMIE MENDOZA,
Defendant-Appellant.
________________________________________________________________
No. 1-08-3411
Appellate Court of Illinois
First District, First Division
Filed: June 7, 2010
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
HALL, P. J., and LAMPKIN, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Joseph M. Claps, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Anita Alvarez, State's Attorney, County of Cook
APPELLEE Alan J. Spellberg
29
No. 1-08-3411
Sally L. Dilgart
Assistant State's Attorneys
Richard J. Daley Center, Room 309
Chicago, IL 60602
For DEFENDANT- Michael J. Pelletier, State Appellate Defender
APPELLANT Charles M. Schiedel, Deputy Defender
Kim Robert Fawcett
Assistant Appellate Defender
Office of the State Appellate Defender
Supreme Court Unit
20 N. Clark Street, 28th Floor
Chicago, IL 60602
30
No. 1-08-3411
31