People v. Caballero
Annotate this Case
People v. Caballero, No. 81259 (12/4/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 81259--Agenda 5--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JUAN
CABALLERO, Appellant.
Opinion filed December 4, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Defendant, Juan Caballero, appeals from an order of the circuit court of
Cook County dismissing, without an evidentiary hearing, his petition for post-
conviction relief (725 ILCS 5/122--1 et seq. (West 1992)) and relief from
judgment (735 ILCS 5/2--1401 (West 1992)). Because defendant was sentenced
to death for the underlying murder convictions, the present appeal lies directly to
this court. 134 Ill. 2d R. 651(a).
Early on the morning of February 25, 1979, the bodies of three teenage
males, Michael Salcido, Arthur Salcido, and Frank Mussa, were discovered in a
car in a Chicago alley. In 1980, a jury found defendant guilty on charges of
murder, unlawful restraint, and armed violence with respect to each of the three
victims. On direct appeal, this court affirmed defendant's convictions and death
sentence. People v. Caballero, 102 Ill. 2d 23 (1984).
Defendant filed a petition for post-conviction relief alleging, inter alia, that
he was denied effective assistance of counsel at his capital sentencing hearing. The
circuit court dismissed the petition without an evidentiary hearing. On appeal, this
court held that the allegations made a substantial showing of constitutional rights
deprivation and remanded the cause for an evidentiary hearing. People v.
Caballero, 126 Ill. 2d 248 (1989). After a hearing, the circuit court denied
defendant post-conviction relief based on ineffective assistance of counsel at
sentencing and this court affirmed. People v. Caballero, 152 Ill. 2d 347 (1992).
On October 29, 1993, defendant filed a petition for post-conviction relief
and relief from judgment based on the unconstitutional disparity of his death
sentence, and later amended the petition to include violation of his due process
right to "reverse-Witherspoon," or "life qualify," the jury. The State moved to
dismiss defendant's petition. On May 29, 1996, after oral argument on the State's
motion, the circuit court dismissed the petition and this appeal followed. The facts
of this case are adequately set forth in our opinion on defendant's direct appeal
and will not be repeated here.
Initially, we note that while defendant alternatively argues that he is
entitled to relief from judgment pursuant to section 2--1401 of the Civil Practice
Law (735 ILCS 5/2--1401 (West 1992)), where a section 2--1401 petition is filed
beyond two years after the judgment was entered, it cannot be considered. 735
ILCS 5/2--1401(c) (West 1992); see also People v. Logan, 49 Ill. App. 3d 787,
790 (1977), aff'd, 72 Ill. 2d 358 (1978). This court has held that the two-year
limitation mandated by section 2--1401 and its predecessor, section 72 (Ill. Rev.
Stat. 1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing
that the person seeking relief is under legal disability or duress or the grounds for
relief are fraudulently concealed. Crowell v. Bilandic, 81 Ill. 2d 422, 427 (1980);
People v. Berland, 74 Ill. 2d 286, 317 (1978). Moreover, the fact that a post-
judgment motion or an appeal may be pending does not serve to toll the period
of limitation. See Sidwell v. Sidwell, 127 Ill. App. 3d 169, 174 (1984).
Defendant's section 2--1401 petition was filed 13 years after the judgment
of conviction was entered and sentence imposed in 1980, and he does not contend
that any of the grounds for tolling the limitations period exist. Therefore, section
2--1401 is not available as a remedy. Although the circuit court did not state its
reasoning for dismissing that portion of defendant's petition, we may affirm for
any reason warranted by the record, regardless of the reasons relied on by the
lower court. People v. Nash, 173 Ill. 2d 423, 432 (1996).
The State contends that the circuit court also properly dismissed
defendant's petition for post-conviction relief because, as his second, it is
procedurally barred. It is true that the Post-Conviction Hearing Act (Act)
contemplates the filing of only one petition, and "a ruling on a post-conviction
petition has res judicata effect with respect to all claims that were raised or could
have been raised in the initial petition." People v. Free, 122 Ill. 2d 367, 375-76
(1988); accord People v. Flores, 153 Ill. 2d 264, 273-74 (1992).
"The filing of successive post-conviction petitions sets up
two competing interests. On the one hand, there is the State's
interest in providing a forum for the vindication of the petitioner's
constitutional rights. On the other hand, the State has a legitimate
interest in the finality of criminal litigation and judgments. ***
* * *
Where, however, the claimed error is one which could not
have been presented in an earlier proceeding, procedural bars may
be ineffectual in bringing about that finality which ordinarily
follows direct appeal and the first post-conviction proceeding. In
such cases, there is the potential that a second or subsequent post-
conviction petition may be filed ***." Flores, 153 Ill. 2d at 274-75.
Defendant's sentence disparity claim constitutes one such case.
Defendant and three codefendants have been convicted of the triple
homicide involved herein. Defendant and codefendant Luis Ruiz were tried in
1980 before one judge supervising two separate juries, and, following separate
sentencing hearings, both men were sentenced to death. In his second post-
conviction petition, defendant claims that the disparity between his death sentence
and the prison sentences of codefendants Placido LaBoy and Nelson Aviles
violates defendant's constitutional rights. Defendant has supplemented his petition
with portions of the circuit court records of Aviles and LaBoy, which indicate that
Aviles had been a fugitive from 1979 until 1988. After Aviles was arrested in
California, he agreed to testify against LaBoy and plead guilty to the murders in
exchange for an agreed recommendation by the State of a 40-year sentence. In
February 1992, Aviles testified at LaBoy's jury trial and, although the State sought
the death penalty, the jury concluded that a sentence other than death should be
imposed. Accordingly, LaBoy was sentenced to three consecutive natural-life
terms of imprisonment. In March 1992, Aviles plead guilty and received
concurrent sentences of 40 years on each of the three murder counts.
LaBoy and Aviles were sentenced during the pendency of defendant's
appeal from the circuit court's denial of his first post-conviction petition. On April
3, 1992, defendant filed with this court a "Motion to Take Judicial Notice of the
Trial of Codefendants and to Raise the Additional Issue of Proportionality and to
Submit Additional Authority." Defendant's motion was denied on May 12, 1992.
This court's opinion affirming denial of defendant's first post-conviction petition
was filed October 15, 1992, and rehearing was denied on December 7, 1992.
It is thus obvious that defendant's claim of unconstitutional disparity in
sentencing could not have been presented in an earlier proceeding, and, indeed,
his attempt to raise the claim on appeal from his first post-conviction petition was
rebuffed by this court. Therefore, defendant's claim of sentence disparity is neither
res judicata nor waived. See Flores, 153 Ill. 2d at 281-82 (where defendant's
ineffective-assistance claims could not have been raised on direct appeal or in his
first post-conviction proceeding, those claims were neither res judicata nor
waived). Further, although defendant's direct appeal challenged his death sentence
as disproportionate and excessive (Caballero, 102 Ill. 2d at 46-47), the issue of
disparity in sentencing between defendant and his codefendants is not, contrary to
the State's assertion, "essentially the same" such that "res judicata bars a second
visit to this issue." See Flores, 153 Ill. 2d at 293-94.
Finally, the statutory time limitation in the Act is also no bar to
defendant's sentence disparity claim. The applicable section provides, inter alia:
"No proceedings under this Article shall be commenced more than
*** 6 months after the date of the order denying certiorari by the
United States Supreme Court *** or 3 years from the date of
conviction, whichever is later, unless the petitioner alleges facts
showing that the delay was not due to his culpable negligence."
(Emphasis added.) 725 ILCS 5/122--1 (West 1992).
Defendant's petition sets forth a factual chronology in support of his
allegation that "any delay in filing this Petition was not due to Defendant's
culpable negligence but was a result of the timing of the sentencings of LaBoy
and Aviles." The circuit court specifically agreed with defendant on this point,
stating: "defendant could not have raised this disparate sentencing issue *** on his
direct appeal or in his initial post-conviction petition." We do not believe this
finding by the circuit court was manifestly erroneous. See People v. Silagy, 116 Ill. 2d 357, 365 (1987) (at a hearing under the Act, determinations by the trial
court will not be disturbed unless manifestly erroneous). Therefore, we find that
defendant has sufficiently met his burden of showing that the delay in filing his
second post-conviction petition asserting a sentence disparity claim was not due
to his culpable negligence.[fn1] See People v. Lansing, 35 Ill. 2d 247, 248
(1966); People v. Heirens, 271 Ill. App. 3d 392, 401 (1995).
Defendant contends that his petition was sufficient to require a hearing and
a ruling on the merits of his sentence disparity claim, but that the circuit court
dismissed the petition based on the mistaken belief that the issue of
unconstitutional disparity of sentences could only be considered by an appellate
court. Following oral argument by the parties at the hearing on the State's motion
to dismiss, the circuit court cited extensively from this court's decisions in People
v. Page, 156 Ill. 2d 258 (1993), and People v. Edgeston, 157 Ill. 2d 201 (1993),
concluding "these cases stand for the proposition that the issue of disproportionate
sentence is a matter for appellate review." The circuit court has misinterpreted our
holdings.
In Page and Edgeston, this court held that a defendant's request to have
the jury at his capital sentencing hearing consider nonstatutory mitigating evidence
of a codefendant's natural life sentence was neither constitutionally required nor
relevant to the jury's examination of the individual defendant's characteristics and
the circumstances of his offense. Edgeston, 157 Ill. 2d at 239. We further stated
that in order to insure that the death penalty was not imposed in an arbitrary or
capricious manner, we would, on direct review of an appropriate case, consider
whether a death sentence is disproportionately harsh in comparison with a less
severe sanction imposed on a codefendant convicted of the same offense. Page,
156 Ill. 2d at 270.
Neither Page nor Edgeston dealt with the sentence disparity issue in the
context of a petition for post-conviction relief, nor did they hold that a circuit
court could not consider such an issue raised under the Act. Disparity of sentence
is cognizable under the Act in noncapital cases (see People v. Wren, 223 Ill. App.
3d 722, 729 (1992)), and where circuit courts routinely handle post-conviction
petitions in capital cases, we see no reason to preclude examination of this issue.
Thus, we agree with defendant that the circuit court erroneously believed the issue
was "a matter for appellate review" only. A remand for a decision on the merits
is therefore necessary, unless, as the State contends, the court's dismissal was
correct because defendant's sentencing disparity claim does not constitute a
substantial constitutional error within the meaning of the Act. See Nash, 173 Ill. 2d at 432 (the question on review is the correctness of the trial court's result, not
the correctness of the reasoning upon which that result was based); People v.
Hightower, 258 Ill. App. 3d 517, 519 (1994).
One who seeks relief under the Act for disparity of sentence must allege
facts which, if proven, indicate that his constitutional rights were violated in that
regard. See Wren, 223 Ill. App. 3d at 729; People v. Adams, 164 Ill. App. 3d 742,
745 (1987). Arbitrary and unreasonable disparity between the sentences of
similarly situated codefendants is impermissible. People v. Jackson, 145 Ill. 2d 43,
119 (1991), vacated on other grounds, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32 (1992); People v. Godinez, 91 Ill. 2d 47, 55 (1982). However, the mere
disparity of sentences does not, by itself, establish a violation of fundamental
fairness. People v. Kline, 92 Ill. 2d 490, 508 (1982). A disparity of sentences will
not be disturbed where it is warranted by differences in the nature and extent of
the concerned defendants' participation in the offense. Flores, 153 Ill. 2d at 294;
Godinez, 91 Ill. 2d at 55.
Defendant's petition alleged that his death sentence was unconstitutionally
disparate from the natural life sentence received by LaBoy, who, according to
testimony at his trial and sentencing and the affidavit of defendant's counsel,
played a more culpable role in the murders and had a more significant criminal
record and less rehabilitative potential than defendant. The petition further alleged
that defendant's death sentence was unconstitutionally disparate from the 40-year
prison term received by Aviles, who played a similar role in the offenses.
Defendant's petition was verified and its allegations were additionally supported
by numerous exhibits, including circuit court computer records reflecting the
sentences received by LaBoy and Aviles, and relevant portions of the official
transcript from LaBoy's trial and penalty phase proceedings detailing the relative
culpability of the various participants in the murders, Aviles' plea agreement,
LaBoy's criminal background, rehabilitative potential and the findings and
conclusions of the trial court in sentencing LaBoy.
The standard for the evaluation of defendant's sentence disparity claim is
clear:
"A Post-Conviction Hearing Act proceeding is not an appeal per se,
but a collateral attack on a judgment. [Citation.] In order to prevail
under the Act, the defendant must establish a substantial
deprivation of his rights under the United States Constitution or the
Constitution of Illinois. [Citation.] The defendant is not entitled to
an evidentiary hearing unless the allegations of his petition,
supported where appropriate by the trial record or by
accompanying affidavits, make a substantial showing that the
defendant's rights have been so violated. [Citation.] For the
purpose of determining whether to grant an evidentiary hearing, all
well-pleaded facts in the petition and in any accompanying
affidavits are to be taken as true. [Citations.]" Caballero, 126 Ill. 2d at 258-59.
In light of these considerations, we believe that defendant has made a substantial
showing that his constitutional rights were violated so as to entitle him to an
evidentiary hearing on the disparity between his death sentence and LaBoy's life
sentence. See People v. Gleckler, 82 Ill. 2d 145 (1980) (death sentence vacated
to prevent its arbitrary imposition where more culpable codefendant, with criminal
record and similarly poor rehabilitative prospects, received imprisonment term).
However, with regard to Aviles, we find that even if all the "well-pleaded
facts" in the petition and supporting exhibits are taken as true, defendant has not
established an unconstitutional disparity. A sentence imposed on a codefendant
who pleaded guilty as part of a plea agreement does not provide a valid basis of
comparison to a sentence entered after a trial. See People v. Brown, 267 Ill. App.
3d 482, 487 (1994). Further, dispositional concessions are properly granted to
defendants who plead guilty when the interest of the public in the effective
administration of criminal justice would thereby be served. People v. Sivels, 60 Ill. 2d 102, 105 (1975). Aviles, by agreeing to plead guilty and testify against LaBoy
in exchange for the State's recommendation of a 40-year sentence: (1)
acknowledged his guilt and showed willingness to assume responsibility for his
conduct; (2) made a public trial unnecessary; and (3) gave cooperation which
resulted in the successful prosecution of another offender engaged in equally
serious or more serious criminal conduct. See Sivels, 60 Ill. 2d at 105. Thus,
defendant cannot establish that the disparate treatment of himself and Aviles was
unreasonable or unwarranted. We therefore affirm the circuit court's dismissal of
defendant's claim of sentence disparity as to Aviles.
Finally, we address defendant's contention that the trial court's failure to
"reverse-Witherspoon" the jury entitles him to post-conviction relief. Defendant
raised this issue on direct appeal, and this court rejected the argument that his
capital sentencing jury should have been "life qualified" in order to exclude all
jurors who feel that the death penalty should be automatically imposed in all
murder cases.[fn2] Caballero, 102 Ill. 2d at 45-46. Eight years later, in Morgan
v. Illinois, 504 U.S. 719, 735-36, 119 L. Ed. 2d 492, 506-07, 112 S. Ct. 2222,
2233 (1992), the United States Supreme Court held that a capital defendant is
entitled to inquire into prospective jurors' opinions in support of the death penalty,
or reverse-Witherspoon the jury. Defendant argues that, in light of Morgan, "he
is entitled to the constitutional due process right to `life qualify' the jury." We
find, however, that the circuit court correctly concluded that the Morgan decision
does not apply retroactively to cases on collateral review.
"In Teague v. Lane (1989), 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060, the United States Supreme Court barred the retroactive application, upon
collateral review, of a new constitutional rule of criminal procedure that is
announced after a defendant's conviction is final because all avenues of direct
appeal have been exhausted." People v. Holman, 164 Ill. 2d 356, 380 (1995). The
Teague Court held that a case announces a new rule "when it breaks new ground
or imposes a new obligation on the States or the Federal Government." Teague,
489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. In other words, "a case
announces a new rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final." (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070; People v. Flowers, 138 Ill. 2d 218, 240 (1990). In Flowers, this court adopted the Teague test for purposes
of analyzing collateral review under the Act. Flowers, 138 Ill. 2d at 237-38.
Application of the Teague test indicates that Morgan should not be applied
retroactively because it constituted a new rule. Clearly, the result defendant seeks
was not "dictated" by existing precedent, where this court rejected his original
claim that his jury should have been "life qualified." Caballero, 102 Ill. 2d at 45-
46. Indeed, in People v. Cloutier, 156 Ill. 2d 483, 497 (1993), this court found that
prior to Morgan, "no reverse-Witherspoon questioning was required in Illinois."
Further, "if prior to the rule's being established there was a significant difference
of opinion on the issue in the lower courts, this would indicate that a decision is
a new rule." Flowers, 138 Ill. 2d at 240. In Morgan, the United States Supreme
Court specifically stated that it granted certiorari because of the considerable
disagreement on the issue among state courts of last resort. Morgan, 504 U.S. at
725, 119 L. Ed. 2d at 500, 112 S. Ct. at 2227.
Nevertheless, defendant argues that the Morgan Court did not enunciate a
new rule, but rather based its decision on precedent interpreting the due process
clause requirement that a jury be impartial. We agree with the State that while the
right to reverse-Witherspoon does stem from a defendant's due process right to an
impartial jury (see Morgan, 504 U.S. at 728-29, 119 L. Ed. 2d at 502-03, 112 S.
Ct. at 2229), what renders Morgan a new rule is the "new obligation" imposed
upon the trial courts to "life qualify" the jury upon the request of a capital
defendant. Therefore, unless this new rule falls within one of the two exceptions
recognized in Teague, it will not be applied retroactively.
The first exception states that the new rule should be given retroactive
application if it places certain kinds of primary, private individual conduct beyond
the power of the criminal-law-making authority to proscribe. Teague, 489 U.S. at
307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Defendant does not argue that this
exception applies, and it clearly does not. The conduct proscribed in this case is
murder, the prosecution of which is not prohibited by Morgan. Nor does the
Morgan rule involve a categorical guarantee accorded by the Constitution such as
a prohibition on the imposition of death on a certain class of offenders. See
Flowers, 138 Ill. 2d at 241.
Under the second exception, a new rule may be applied on collateral
review if it requires the observance of those procedures that are implicit in the
concept of ordered liberty. Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. This second exception is reserved for "watershed rules of criminal
procedure" implicating the fundamental fairness and accuracy of the trial. Teague,
489 U.S. at 311-12, 103 L. Ed. 2d at 356-57, 109 S. Ct. at 1076. While defendant
contends that this exception applies to the right to reverse-Witherspoon a jury, we
find it significant that Morgan requires a trial court to "life qualify" prospective
jurors only at the defendant's request. The condition that the defendant make the
request suggests that such voir dire questioning is not " `so central to an accurate
determination of innocence or guilt' " as to constitute a component of basic due
process. See Flowers, 138 Ill. 2d at 241-42, quoting Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077.) Therefore, because this exception must be
narrowly construed (Flowers, 138 Ill. 2d at 242), we find that the Morgan rule
does not fall within its boundaries.
In light of these considerations, we find no error in the circuit court's
dismissal of defendant's post-conviction petition with respect to this issue.
Application of Morgan to defendant's post-conviction proceeding would have been
an improper, retroactive operation of a new rule of criminal procedure in order to
collaterally challenge defendant's conviction, which had become final before
Morgan was announced. See Holman, 164 Ill. 2d at 381-82.
For the reasons stated, the judgment of the circuit court of Cook County
is affirmed in part and reversed in part. The cause is remanded to the circuit court
for an evidentiary hearing on that portion of defendant's post-conviction petition
that alleges that his sentence of death is unconstitutionally disparate from the
natural life sentence imposed on codefendant LaBoy.
Judgment affirmed in part and
reversed in part;
cause remanded.
JUSTICE BILANDIC, dissenting:
The majority opinion holds that "defendant has made a substantial showing
that his constitutional rights were violated so as to entitle him to an evidentiary
hearing on the disparity between his death sentence and LaBoy's life sentence."
Slip op. at 7-8. I respectfully dissent from the majority's holding on this issue. For
the reasons that follow, I find that the circuit court properly dismissed defendant's
petition for post-conviction relief. See People v. P.H., 145 Ill. 2d 209, 220 (1991)
(the reasons provided by the trial court for its judgment are immaterial if the
decision is correct).
The facts as set forth in this court's opinion on direct appeal (People v.
Caballero, 102 Ill. 2d 23 (1984)) reveal that defendant, Luis Ruiz, Placedo LaBoy
and Nelson Aviles, all members of the Latin Kings, committed the murders of
Arthur and Michael Salcido and Frank Mussa. Defendant and his companions
encountered the three victims when Michael Salcido approached Luis Ruiz and
asked him where he could purchase marijuana. Michael told defendant and his
companions that he was a member of a rival street gang, the Latin Eagles, because
he believed they were members of that gang. Defendant and his companions got
into one of the victim's cars on the pretense that they would help the victims buy
marijuana. Defendant and his companions had the car driven to an alley where
they instructed Michael to get out of the car and follow them to buy some
marijuana. While they were alone with Michael, defendant and his companions
beat him. Upon returning to the car, defendant and the others decided to kill
Michael and his friends because they had seen their faces and could identify them.
Michael and Frank were taken out of the car by defendant and LaBoy. When
defendant returned to the car, he watched while Aviles stabbed Arthur. Frank was
then brought to the car. Ultimately, defendant encouraged LaBoy to cut Frank's
throat. Defendant then retrieved Michael and brought him to the car containing the
bodies of Arthur and Frank. Defendant pushed Michael into the car, pulled back
his head, slit his throat and stabbed him in the chest several times.
As noted in the majority opinion, defendant's petition for post-conviction
relief alleged that his death sentence was unconstitutionally disparate from the
natural life sentence received by LaBoy because LaBoy played a more culpable
role in the murders, had a more significant criminal record and less rehabilitative
potential than defendant. Slip op. at 7. This court has repeatedly commented that
simply because "some or all of the members of [a codefendant's] sentencing jury
chose not to impose the death penalty in [the codefendant's] case does not, in our
view, render the defendant's own sentence disproportionate." See People v.
Kitchen, 159 Ill. 2d 1, 46 (1994). From this court's recitation of the facts on direct
appeal, it is evident that defendant's claim of unconstitutional disparity in
sentencing is not supported. Defendant alleges that LaBoy was the ringleader and
implies that he was only a follower. Evidence that a defendant is a follower, as
opposed to a leader, has been held to be a significant factor in disparate
sentencing analysis. See People v. Jackson, 145 Ill. 2d 43, 125 (1991). The facts
in this case, however, refute defendant's claim. They show that defendant
encouraged LaBoy to slash one of the victim's throats and then proceeded to slash
another victim's throat himself and repeatedly stab that victim. As noted by this
court on direct appeal, defendant was an active, willing participant in all three of
the murders. Caballero, 102 Ill. 2d at 42. Defendant has thus failed to show that
he was merely a follower and that LaBoy was more culpable.
The facts, as revealed in this court's opinion on direct appeal, also provide
some insight into defendant's character. The facts show that defendant is a ruthless
killer, who exhibited no remorse for his actions. Following his statement to the
police, defendant expressed a willingness to kill again. When asked if he had a
chance to do it over " `would he do it again,' " defendant stated that he would
" `if it was a sure thing.' " Caballero, 102 Ill. 2d at 46. Defendant's only regret
was that he was caught. Defendant's statements expressing a lack of remorse
reveal that defendant had little rehabilitative potential. In light of the facts
regarding defendant's actions during the murder and his character, LaBoy's
allegedly more severe criminal record, standing alone, does not render defendant's
death sentence arbitrarily and unreasonably disparate with that of LaBoy's life
sentence. See People v. Towns, 174 Ill. 2d 453, 481 (1996).
I would therefore find that defendant failed to establish that the sentence
of death imposed on him is unconstitutionally disparate from LaBoy's life
sentence. As such, defendant's petition fails to make a substantial showing that
defendant's constitutional rights have been violated. I would therefore affirm the
circuit court's dismissal of defendant's claim of unconstitutional sentence
disparity.
JUSTICES MILLER and HEIPLE join in this dissent.
[fn1] Defendant's petition also states that it is timely under section 122--1 because
it is filed within six months after the date of the order denying certiorari by the
United States Supreme Court. While it appears that, as in the case at bar, a second
post-conviction petition filed within six months after the Supreme Court's denial
of certiorari from a defendant's initial post-conviction petition is timely under
section 122--1 (see Flores, 153 Ill. 2d at 271-72, 275), we decline the State's
invitation to decide this issue of statutory interpretation, because we find the
exception to that section's time limits applies here.
[fn2] In his first post-conviction petition, defendant argued that his trial counsel
was incompetent for failing to "life qualify" the jury. This contention was not
considered by this court on appeal because, based on another alleged error by
counsel, defendant's petition was remanded for an evidentiary hearing to
determine if he was denied a fair sentencing hearing. Caballero, 126 Ill. 2d at
268-69, 283.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 81259--Agenda 5--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JUAN
CABALLERO, Appellant.
Opinion filed December 4, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Defendant, Juan Caballero, appeals from an order of the circuit court of
Cook County dismissing, without an evidentiary hearing, his petition for post-
conviction relief (725 ILCS 5/122--1 et seq. (West 1992)) and relief from
judgment (735 ILCS 5/2--1401 (West 1992)). Because defendant was sentenced
to death for the underlying murder convictions, the present appeal lies directly to
this court. 134 Ill. 2d R. 651(a).
Early on the morning of February 25, 1979, the bodies of three teenage
males, Michael Salcido, Arthur Salcido, and Frank Mussa, were discovered in a
car in a Chicago alley. In 1980, a jury found defendant guilty on charges of
murder, unlawful restraint, and armed violence with respect to each of the three
victims. On direct appeal, this court affirmed defendant's convictions and death
sentence. People v. Caballero, 102 Ill. 2d 23 (1984).
Defendant filed a petition for post-conviction relief alleging, inter alia, that
he was denied effective assistance of counsel at his capital sentencing hearing. The
circuit court dismissed the petition without an evidentiary hearing. On appeal, this
court held that the allegations made a substantial showing of constitutional rights
deprivation and remanded the cause for an evidentiary hearing. People v.
Caballero, 126 Ill. 2d 248 (1989). After a hearing, the circuit court denied
defendant post-conviction relief based on ineffective assistance of counsel at
sentencing and this court affirmed. People v. Caballero, 152 Ill. 2d 347 (1992).
On October 29, 1993, defendant filed a petition for post-conviction relief
and relief from judgment based on the unconstitutional disparity of his death
sentence, and later amended the petition to include violation of his due process
right to "reverse-Witherspoon," or "life qualify," the jury. The State moved to
dismiss defendant's petition. On May 29, 1996, after oral argument on the State's
motion, the circuit court dismissed the petition and this appeal followed. The facts
of this case are adequately set forth in our opinion on defendant's direct appeal
and will not be repeated here.
Initially, we note that while defendant alternatively argues that he is
entitled to relief from judgment pursuant to section 2--1401 of the Civil Practice
Law (735 ILCS 5/2--1401 (West 1992)), where a section 2--1401 petition is filed
beyond two years after the judgment was entered, it cannot be considered. 735
ILCS 5/2--1401(c) (West 1992); see also People v. Logan, 49 Ill. App. 3d 787,
790 (1977), aff'd, 72 Ill. 2d 358 (1978). This court has held that the two-year
limitation mandated by section 2--1401 and its predecessor, section 72 (Ill. Rev.
Stat. 1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing
that the person seeking relief is under legal disability or duress or the grounds for
relief are fraudulently concealed. Crowell v. Bilandic, 81 Ill. 2d 422, 427 (1980);
People v. Berland, 74 Ill. 2d 286, 317 (1978). Moreover, the fact that a post-
judgment motion or an appeal may be pending does not serve to toll the period
of limitation. See Sidwell v. Sidwell, 127 Ill. App. 3d 169, 174 (1984).
Defendant's section 2--1401 petition was filed 13 years after the judgment
of conviction was entered and sentence imposed in 1980, and he does not contend
that any of the grounds for tolling the limitations period exist. Therefore, section
2--1401 is not available as a remedy. Although the circuit court did not state its
reasoning for dismissing that portion of defendant's petition, we may affirm for
any reason warranted by the record, regardless of the reasons relied on by the
lower court. People v. Nash, 173 Ill. 2d 423, 432 (1996).
The State contends that the circuit court also properly dismissed
defendant's petition for post-conviction relief because, as his second, it is
procedurally barred. It is true that the Post-Conviction Hearing Act (Act)
contemplates the filing of only one petition, and "a ruling on a post-conviction
petition has res judicata effect with respect to all claims that were raised or could
have been raised in the initial petition." People v. Free, 122 Ill. 2d 367, 375-76
(1988); accord People v. Flores, 153 Ill. 2d 264, 273-74 (1992).
"The filing of successive post-conviction petitions sets up
two competing interests. On the one hand, there is the State's
interest in providing a forum for the vindication of the petitioner's
constitutional rights. On the other hand, the State has a legitimate
interest in the finality of criminal litigation and judgments. ***
* * *
Where, however, the claimed error is one which could not
have been presented in an earlier proceeding, procedural bars may
be ineffectual in bringing about that finality which ordinarily
follows direct appeal and the first post-conviction proceeding. In
such cases, there is the potential that a second or subsequent post-
conviction petition may be filed ***." Flores, 153 Ill. 2d at 274-75.
Defendant's sentence disparity claim constitutes one such case.
Defendant and three codefendants have been convicted of the triple
homicide involved herein. Defendant and codefendant Luis Ruiz were tried in
1980 before one judge supervising two separate juries, and, following separate
sentencing hearings, both men were sentenced to death. In his second post-
conviction petition, defendant claims that the disparity between his death sentence
and the prison sentences of codefendants Placido LaBoy and Nelson Aviles
violates defendant's constitutional rights. Defendant has supplemented his petition
with portions of the circuit court records of Aviles and LaBoy, which indicate that
Aviles had been a fugitive from 1979 until 1988. After Aviles was arrested in
California, he agreed to testify against LaBoy and plead guilty to the murders in
exchange for an agreed recommendation by the State of a 40-year sentence. In
February 1992, Aviles testified at LaBoy's jury trial and, although the State sought
the death penalty, the jury concluded that a sentence other than death should be
imposed. Accordingly, LaBoy was sentenced to three consecutive natural-life
terms of imprisonment. In March 1992, Aviles plead guilty and received
concurrent sentences of 40 years on each of the three murder counts.
LaBoy and Aviles were sentenced during the pendency of defendant's
appeal from the circuit court's denial of his first post-conviction petition. On April
3, 1992, defendant filed with this court a "Motion to Take Judicial Notice of the
Trial of Codefendants and to Raise the Additional Issue of Proportionality and to
Submit Additional Authority." Defendant's motion was denied on May 12, 1992.
This court's opinion affirming denial of defendant's first post-conviction petition
was filed October 15, 1992, and rehearing was denied on December 7, 1992.
It is thus obvious that defendant's claim of unconstitutional disparity in
sentencing could not have been presented in an earlier proceeding, and, indeed,
his attempt to raise the claim on appeal from his first post-conviction petition was
rebuffed by this court. Therefore, defendant's claim of sentence disparity is neither
res judicata nor waived. See Flores, 153 Ill. 2d at 281-82 (where defendant's
ineffective-assistance claims could not have been raised on direct appeal or in his
first post-conviction proceeding, those claims were neither res judicata nor
waived). Further, although defendant's direct appeal challenged his death sentence
as disproportionate and excessive (Caballero, 102 Ill. 2d at 46-47), the issue of
disparity in sentencing between defendant and his codefendants is not, contrary to
the State's assertion, "essentially the same" such that "res judicata bars a second
visit to this issue." See Flores, 153 Ill. 2d at 293-94.
Finally, the statutory time limitation in the Act is also no bar to
defendant's sentence disparity claim. The applicable section provides, inter alia:
"No proceedings under this Article shall be commenced more than
*** 6 months after the date of the order denying certiorari by the
United States Supreme Court *** or 3 years from the date of
conviction, whichever is later, unless the petitioner alleges facts
showing that the delay was not due to his culpable negligence."
(Emphasis added.) 725 ILCS 5/122--1 (West 1992).
Defendant's petition sets forth a factual chronology in support of his
allegation that "any delay in filing this Petition was not due to Defendant's
culpable negligence but was a result of the timing of the sentencings of LaBoy
and Aviles." The circuit court specifically agreed with defendant on this point,
stating: "defendant could not have raised this disparate sentencing issue *** on his
direct appeal or in his initial post-conviction petition." We do not believe this
finding by the circuit court was manifestly erroneous. See People v. Silagy, 116 Ill. 2d 357, 365 (1987) (at a hearing under the Act, determinations by the trial
court will not be disturbed unless manifestly erroneous). Therefore, we find that
defendant has sufficiently met his burden of showing that the delay in filing his
second post-conviction petition asserting a sentence disparity claim was not due
to his culpable negligence.[fn1] See People v. Lansing, 35 Ill. 2d 247, 248
(1966); People v. Heirens, 271 Ill. App. 3d 392, 401 (1995).
Defendant contends that his petition was sufficient to require a hearing and
a ruling on the merits of his sentence disparity claim, but that the circuit court
dismissed the petition based on the mistaken belief that the issue of
unconstitutional disparity of sentences could only be considered by an appellate
court. Following oral argument by the parties at the hearing on the State's motion
to dismiss, the circuit court cited extensively from this court's decisions in People
v. Page, 156 Ill. 2d 258 (1993), and People v. Edgeston, 157 Ill. 2d 201 (1993),
concluding "these cases stand for the proposition that the issue of disproportionate
sentence is a matter for appellate review." The circuit court has misinterpreted our
holdings.
In Page and Edgeston, this court held that a defendant's request to have
the jury at his capital sentencing hearing consider nonstatutory mitigating evidence
of a codefendant's natural life sentence was neither constitutionally required nor
relevant to the jury's examination of the individual defendant's characteristics and
the circumstances of his offense. Edgeston, 157 Ill. 2d at 239. We further stated
that in order to insure that the death penalty was not imposed in an arbitrary or
capricious manner, we would, on direct review of an appropriate case, consider
whether a death sentence is disproportionately harsh in comparison with a less
severe sanction imposed on a codefendant convicted of the same offense. Page,
156 Ill. 2d at 270.
Neither Page nor Edgeston dealt with the sentence disparity issue in the
context of a petition for post-conviction relief, nor did they hold that a circuit
court could not consider such an issue raised under the Act. Disparity of sentence
is cognizable under the Act in noncapital cases (see People v. Wren, 223 Ill. App.
3d 722, 729 (1992)), and where circuit courts routinely handle post-conviction
petitions in capital cases, we see no reason to preclude examination of this issue.
Thus, we agree with defendant that the circuit court erroneously believed the issue
was "a matter for appellate review" only. A remand for a decision on the merits
is therefore necessary, unless, as the State contends, the court's dismissal was
correct because defendant's sentencing disparity claim does not constitute a
substantial constitutional error within the meaning of the Act. See Nash, 173 Ill. 2d at 432 (the question on review is the correctness of the trial court's result, not
the correctness of the reasoning upon which that result was based); People v.
Hightower, 258 Ill. App. 3d 517, 519 (1994).
One who seeks relief under the Act for disparity of sentence must allege
facts which, if proven, indicate that his constitutional rights were violated in that
regard. See Wren, 223 Ill. App. 3d at 729; People v. Adams, 164 Ill. App. 3d 742,
745 (1987). Arbitrary and unreasonable disparity between the sentences of
similarly situated codefendants is impermissible. People v. Jackson, 145 Ill. 2d 43,
119 (1991), vacated on other grounds, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32 (1992); People v. Godinez, 91 Ill. 2d 47, 55 (1982). However, the mere
disparity of sentences does not, by itself, establish a violation of fundamental
fairness. People v. Kline, 92 Ill. 2d 490, 508 (1982). A disparity of sentences will
not be disturbed where it is warranted by differences in the nature and extent of
the concerned defendants' participation in the offense. Flores, 153 Ill. 2d at 294;
Godinez, 91 Ill. 2d at 55.
Defendant's petition alleged that his death sentence was unconstitutionally
disparate from the natural life sentence received by LaBoy, who, according to
testimony at his trial and sentencing and the affidavit of defendant's counsel,
played a more culpable role in the murders and had a more significant criminal
record and less rehabilitative potential than defendant. The petition further alleged
that defendant's death sentence was unconstitutionally disparate from the 40-year
prison term received by Aviles, who played a similar role in the offenses.
Defendant's petition was verified and its allegations were additionally supported
by numerous exhibits, including circuit court computer records reflecting the
sentences received by LaBoy and Aviles, and relevant portions of the official
transcript from LaBoy's trial and penalty phase proceedings detailing the relative
culpability of the various participants in the murders, Aviles' plea agreement,
LaBoy's criminal background, rehabilitative potential and the findings and
conclusions of the trial court in sentencing LaBoy.
The standard for the evaluation of defendant's sentence disparity claim is
clear:
"A Post-Conviction Hearing Act proceeding is not an appeal per se,
but a collateral attack on a judgment. [Citation.] In order to prevail
under the Act, the defendant must establish a substantial
deprivation of his rights under the United States Constitution or the
Constitution of Illinois. [Citation.] The defendant is not entitled to
an evidentiary hearing unless the allegations of his petition,
supported where appropriate by the trial record or by
accompanying affidavits, make a substantial showing that the
defendant's rights have been so violated. [Citation.] For the
purpose of determining whether to grant an evidentiary hearing, all
well-pleaded facts in the petition and in any accompanying
affidavits are to be taken as true. [Citations.]" Caballero, 126 Ill. 2d at 258-59.
In light of these considerations, we believe that defendant has made a substantial
showing that his constitutional rights were violated so as to entitle him to an
evidentiary hearing on the disparity between his death sentence and LaBoy's life
sentence. See People v. Gleckler, 82 Ill. 2d 145 (1980) (death sentence vacated
to prevent its arbitrary imposition where more culpable codefendant, with criminal
record and similarly poor rehabilitative prospects, received imprisonment term).
However, with regard to Aviles, we find that even if all the "well-pleaded
facts" in the petition and supporting exhibits are taken as true, defendant has not
established an unconstitutional disparity. A sentence imposed on a codefendant
who pleaded guilty as part of a plea agreement does not provide a valid basis of
comparison to a sentence entered after a trial. See People v. Brown, 267 Ill. App.
3d 482, 487 (1994). Further, dispositional concessions are properly granted to
defendants who plead guilty when the interest of the public in the effective
administration of criminal justice would thereby be served. People v. Sivels, 60 Ill. 2d 102, 105 (1975). Aviles, by agreeing to plead guilty and testify against LaBoy
in exchange for the State's recommendation of a 40-year sentence: (1)
acknowledged his guilt and showed willingness to assume responsibility for his
conduct; (2) made a public trial unnecessary; and (3) gave cooperation which
resulted in the successful prosecution of another offender engaged in equally
serious or more serious criminal conduct. See Sivels, 60 Ill. 2d at 105. Thus,
defendant cannot establish that the disparate treatment of himself and Aviles was
unreasonable or unwarranted. We therefore affirm the circuit court's dismissal of
defendant's claim of sentence disparity as to Aviles.
Finally, we address defendant's contention that the trial court's failure to
"reverse-Witherspoon" the jury entitles him to post-conviction relief. Defendant
raised this issue on direct appeal, and this court rejected the argument that his
capital sentencing jury should have been "life qualified" in order to exclude all
jurors who feel that the death penalty should be automatically imposed in all
murder cases.[fn2] Caballero, 102 Ill. 2d at 45-46. Eight years later, in Morgan
v. Illinois, 504 U.S. 719, 735-36, 119 L. Ed. 2d 492, 506-07, 112 S. Ct. 2222,
2233 (1992), the United States Supreme Court held that a capital defendant is
entitled to inquire into prospective jurors' opinions in support of the death penalty,
or reverse-Witherspoon the jury. Defendant argues that, in light of Morgan, "he
is entitled to the constitutional due process right to `life qualify' the jury." We
find, however, that the circuit court correctly concluded that the Morgan decision
does not apply retroactively to cases on collateral review.
"In Teague v. Lane (1989), 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060, the United States Supreme Court barred the retroactive application, upon
collateral review, of a new constitutional rule of criminal procedure that is
announced after a defendant's conviction is final because all avenues of direct
appeal have been exhausted." People v. Holman, 164 Ill. 2d 356, 380 (1995). The
Teague Court held that a case announces a new rule "when it breaks new ground
or imposes a new obligation on the States or the Federal Government." Teague,
489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. In other words, "a case
announces a new rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final." (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070; People v. Flowers, 138 Ill. 2d 218, 240 (1990). In Flowers, this court adopted the Teague test for purposes
of analyzing collateral review under the Act. Flowers, 138 Ill. 2d at 237-38.
Application of the Teague test indicates that Morgan should not be applied
retroactively because it constituted a new rule. Clearly, the result defendant seeks
was not "dictated" by existing precedent, where this court rejected his original
claim that his jury should have been "life qualified." Caballero, 102 Ill. 2d at 45-
46. Indeed, in People v. Cloutier, 156 Ill. 2d 483, 497 (1993), this court found that
prior to Morgan, "no reverse-Witherspoon questioning was required in Illinois."
Further, "if prior to the rule's being established there was a significant difference
of opinion on the issue in the lower courts, this would indicate that a decision is
a new rule." Flowers, 138 Ill. 2d at 240. In Morgan, the United States Supreme
Court specifically stated that it granted certiorari because of the considerable
disagreement on the issue among state courts of last resort. Morgan, 504 U.S. at
725, 119 L. Ed. 2d at 500, 112 S. Ct. at 2227.
Nevertheless, defendant argues that the Morgan Court did not enunciate a
new rule, but rather based its decision on precedent interpreting the due process
clause requirement that a jury be impartial. We agree with the State that while the
right to reverse-Witherspoon does stem from a defendant's due process right to an
impartial jury (see Morgan, 504 U.S. at 728-29, 119 L. Ed. 2d at 502-03, 112 S.
Ct. at 2229), what renders Morgan a new rule is the "new obligation" imposed
upon the trial courts to "life qualify" the jury upon the request of a capital
defendant. Therefore, unless this new rule falls within one of the two exceptions
recognized in Teague, it will not be applied retroactively.
The first exception states that the new rule should be given retroactive
application if it places certain kinds of primary, private individual conduct beyond
the power of the criminal-law-making authority to proscribe. Teague, 489 U.S. at
307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Defendant does not argue that this
exception applies, and it clearly does not. The conduct proscribed in this case is
murder, the prosecution of which is not prohibited by Morgan. Nor does the
Morgan rule involve a categorical guarantee accorded by the Constitution such as
a prohibition on the imposition of death on a certain class of offenders. See
Flowers, 138 Ill. 2d at 241.
Under the second exception, a new rule may be applied on collateral
review if it requires the observance of those procedures that are implicit in the
concept of ordered liberty. Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. This second exception is reserved for "watershed rules of criminal
procedure" implicating the fundamental fairness and accuracy of the trial. Teague,
489 U.S. at 311-12, 103 L. Ed. 2d at 356-57, 109 S. Ct. at 1076. While defendant
contends that this exception applies to the right to reverse-Witherspoon a jury, we
find it significant that Morgan requires a trial court to "life qualify" prospective
jurors only at the defendant's request. The condition that the defendant make the
request suggests that such voir dire questioning is not " `so central to an accurate
determination of innocence or guilt' " as to constitute a component of basic due
process. See Flowers, 138 Ill. 2d at 241-42, quoting Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077.) Therefore, because this exception must be
narrowly construed (Flowers, 138 Ill. 2d at 242), we find that the Morgan rule
does not fall within its boundaries.
In light of these considerations, we find no error in the circuit court's
dismissal of defendant's post-conviction petition with respect to this issue.
Application of Morgan to defendant's post-conviction proceeding would have been
an improper, retroactive operation of a new rule of criminal procedure in order to
collaterally challenge defendant's conviction, which had become final before
Morgan was announced. See Holman, 164 Ill. 2d at 381-82.
For the reasons stated, the judgment of the circuit court of Cook County
is affirmed in part and reversed in part. The cause is remanded to the circuit court
for an evidentiary hearing on that portion of defendant's post-conviction petition
that alleges that his sentence of death is unconstitutionally disparate from the
natural life sentence imposed on codefendant LaBoy.
Judgment affirmed in part and
reversed in part;
cause remanded.
JUSTICE BILANDIC, dissenting:
The majority opinion holds that "defendant has made a substantial showing
that his constitutional rights were violated so as to entitle him to an evidentiary
hearing on the disparity between his death sentence and LaBoy's life sentence."
Slip op. at 7-8. I respectfully dissent from the majority's holding on this issue. For
the reasons that follow, I find that the circuit court properly dismissed defendant's
petition for post-conviction relief. See People v. P.H., 145 Ill. 2d 209, 220 (1991)
(the reasons provided by the trial court for its judgment are immaterial if the
decision is correct).
The facts as set forth in this court's opinion on direct appeal (People v.
Caballero, 102 Ill. 2d 23 (1984)) reveal that defendant, Luis Ruiz, Placedo LaBoy
and Nelson Aviles, all members of the Latin Kings, committed the murders of
Arthur and Michael Salcido and Frank Mussa. Defendant and his companions
encountered the three victims when Michael Salcido approached Luis Ruiz and
asked him where he could purchase marijuana. Michael told defendant and his
companions that he was a member of a rival street gang, the Latin Eagles, because
he believed they were members of that gang. Defendant and his companions got
into one of the victim's cars on the pretense that they would help the victims buy
marijuana. Defendant and his companions had the car driven to an alley where
they instructed Michael to get out of the car and follow them to buy some
marijuana. While they were alone with Michael, defendant and his companions
beat him. Upon returning to the car, defendant and the others decided to kill
Michael and his friends because they had seen their faces and could identify them.
Michael and Frank were taken out of the car by defendant and LaBoy. When
defendant returned to the car, he watched while Aviles stabbed Arthur. Frank was
then brought to the car. Ultimately, defendant encouraged LaBoy to cut Frank's
throat. Defendant then retrieved Michael and brought him to the car containing the
bodies of Arthur and Frank. Defendant pushed Michael into the car, pulled back
his head, slit his throat and stabbed him in the chest several times.
As noted in the majority opinion, defendant's petition for post-conviction
relief alleged that his death sentence was unconstitutionally disparate from the
natural life sentence received by LaBoy because LaBoy played a more culpable
role in the murders, had a more significant criminal record and less rehabilitative
potential than defendant. Slip op. at 7. This court has repeatedly commented that
simply because "some or all of the members of [a codefendant's] sentencing jury
chose not to impose the death penalty in [the codefendant's] case does not, in our
view, render the defendant's own sentence disproportionate." See People v.
Kitchen, 159 Ill. 2d 1, 46 (1994). From this court's recitation of the facts on direct
appeal, it is evident that defendant's claim of unconstitutional disparity in
sentencing is not supported. Defendant alleges that LaBoy was the ringleader and
implies that he was only a follower. Evidence that a defendant is a follower, as
opposed to a leader, has been held to be a significant factor in disparate
sentencing analysis. See People v. Jackson, 145 Ill. 2d 43, 125 (1991). The facts
in this case, however, refute defendant's claim. They show that defendant
encouraged LaBoy to slash one of the victim's throats and then proceeded to slash
another victim's throat himself and repeatedly stab that victim. As noted by this
court on direct appeal, defendant was an active, willing participant in all three of
the murders. Caballero, 102 Ill. 2d at 42. Defendant has thus failed to show that
he was merely a follower and that LaBoy was more culpable.
The facts, as revealed in this court's opinion on direct appeal, also provide
some insight into defendant's character. The facts show that defendant is a ruthless
killer, who exhibited no remorse for his actions. Following his statement to the
police, defendant expressed a willingness to kill again. When asked if he had a
chance to do it over " `would he do it again,' " defendant stated that he would
" `if it was a sure thing.' " Caballero, 102 Ill. 2d at 46. Defendant's only regret
was that he was caught. Defendant's statements expressing a lack of remorse
reveal that defendant had little rehabilitative potential. In light of the facts
regarding defendant's actions during the murder and his character, LaBoy's
allegedly more severe criminal record, standing alone, does not render defendant's
death sentence arbitrarily and unreasonably disparate with that of LaBoy's life
sentence. See People v. Towns, 174 Ill. 2d 453, 481 (1996).
I would therefore find that defendant failed to establish that the sentence
of death imposed on him is unconstitutionally disparate from LaBoy's life
sentence. As such, defendant's petition fails to make a substantial showing that
defendant's constitutional rights have been violated. I would therefore affirm the
circuit court's dismissal of defendant's claim of unconstitutional sentence
disparity.
JUSTICES MILLER and HEIPLE join in this dissent.
[fn1] Defendant's petition also states that it is timely under section 122--1 because
it is filed within six months after the date of the order denying certiorari by the
United States Supreme Court. While it appears that, as in the case at bar, a second
post-conviction petition filed within six months after the Supreme Court's denial
of certiorari from a defendant's initial post-conviction petition is timely under
section 122--1 (see Flores, 153 Ill. 2d at 271-72, 275), we decline the State's
invitation to decide this issue of statutory interpretation, because we find the
exception to that section's time limits applies here.
[fn2] In his first post-conviction petition, defendant argued that his trial counsel
was incompetent for failing to "life qualify" the jury. This contention was not
considered by this court on appeal because, based on another alleged error by
counsel, defendant's petition was remanded for an evidentiary hearing to
determine if he was denied a fair sentencing hearing. Caballero, 126 Ill. 2d at
268-69, 283.
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