People v. Gutierrez
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FIRST DIVISION
December 15, 2008
No. 1-05-3633
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ARMANDO GUTIERREZ,
Defendant-Appellant.
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Appeal from the
Circuit Court of
Cook County
Honorable
Lon W. Shultz,
Judge Presiding.
JUSTICE WOLFSON, delivered the opinion of the court:
A jury, in 2002, found defendant, Armando Gutierrez, guilty
of murder and attempt murder.
The trial court allowed defendant
to file a late notice of appeal in November 2005.
Under the
circumstances of this case, the late notice of appeal gives this
court jurisdiction to consider the direct appeal.
We find the
evidence sufficient to sustain the convictions, and the trial
court did not abuse its discretion in sentencing.
Therefore we
affirm the trial court's judgment.
BACKGROUND
Jorge and Nester Castaneda considered defendant a close
friend.
Nester gave defendant keys to the gate that protected
his parents' home, where Nester and his 14-year-old sister
Melissa lived.
room.
Defendant also had keys to a safe in Nester's
The safe held a gun.
In October 2000, defendant, 24 years
old, married, with two children, told Melissa he found her
attractive.
that."
Melissa said to Nester, "You better tell him to quit
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Later that month defendant crashed his truck.
some bruises but no serious injury.
He suffered
On October 25, 2000, he
brought the damaged truck over to the Castanedas' home so that he
and some friends could repair the truck.
The group in the yard
with the truck included Nester, Jorge, and their cousin Antonio
Castaneda.
Around 8 p.m. Nester went inside to lie down because
he did not feel well.
Defendant and some of the others outside
smoked a joint, and defendant had two beers.
A little before 10
p.m., defendant, using the gun from the safe, shot Jorge, and
then he went inside and shot Nester.
Police arrived on the scene within minutes.
Jorge and Nester to hospitals.
Paramedics took
Only Nester recovered.
told police at the scene defendant shot her brothers.
Melissa
Police
took defendant into custody.
One officer at the police station asked defendant about a
cut on his forehead.
Defendant said he injured his head in the
truck accident a few days before the shooting.
He claimed to
remember nothing of the shootings, but he said he did not shoot
Jorge and Nester.
Prosecutors charged defendant with the murder
of Jorge and the attempt first degree murder of Nester.
At trial Melissa detailed the sexual comments defendant made
to her in the weeks before the shooting.
She said defendant
asked her to be his girlfriend -- and Nester stood close enough
to overhear that request.
She told defendant he was too old.
Nester said that a few days before the shooting defendant
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said he liked Melissa.
Nester and defendant got into an argument
and almost came to blows.
Antonio testified as the prosecution's sole eyewitness to
the shooting of Jorge.
Antonio said some gangbangers drove past
shouting gang slogans.
Defendant then went in to retrieve the
gun from the safe, and he put it on the back of his truck.
Defendant, stumbling and mumbling under the influence of the
joint and the beers, later headed to the truck, saying he thought
he'd go home.
Antonio and the others told defendant to sit down,
for his own safety.
They worried he might crash his truck again.
Defendant started cursing as he picked up the gun.
had a gun.
Defendant shot Jorge.
but defendant just kept firing.
Jorge never
Jorge told defendant to stop,
Antonio hid in the garage.
Melissa testified that when she heard the shots she ran to
Nester's room.
woken up.
Nester, wearing only his boxer shorts, had just
Defendant kicked open the house door and cursed.
Nester asked him to calm down.
Both Melissa and Nester swore
Nester took no step towards defendant, he only backed away on
seeing the gun.
Defendant shot Nester three times.
upstairs looking for the phone.
Melissa ran
Defendant ran after her.
Defendant grabbed Melissa and said, "I love you" repeatedly.
tried to kiss her and he banged her head against the wall.
told him to stop and put down the gun.
stairs to grab defendant.
He
She
Nester struggled up the
Defendant punched Nester and the two
fought before defendant ran out of the house with the gun still
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in his hand.
Defendant's account of the shooting sharply conflicted with
the account the prosecution presented.
lied to police.
Defendant admitted he
He said after the gangbangers passed by, Antonio
asked defendant for his keys.
safe and handed it to Jorge.
talked about girls.
Antonio retrieved the gun from the
A while later the men in the yard
Antonio told Jorge defendant was "trying to
hook up" with Melissa.
Jorge flew into a rage, saying,
"Motherfucker, you better not hook up with my sister.
fucking kill you."
butt of the gun.
I'll
Jorge then hit defendant's forehead with the
Blood dripped from the gash.
Defendant
wrestled the gun from Jorge's grasp.
When they got up, with defendant holding the gun, Jorge told
Antonio to get him a steel rod from the garage.
Antonio
dutifully brought a rod about four feet long and three inches
thick, and he threw it on the ground by Jorge's feet.
panicked.
Defendant
He started shooting as he ran to the house and to
Nester's room, looking for his keys.
and defendant shot him.
Nester attacked defendant
Defendant ran to Melissa and told her
not to worry, then he ran back to Jorge and pleaded with Jorge to
wake up.
The arresting officer testified that he saw no blood on
defendant at the time of the arrest.
A photograph of defendant's
truck showed a large crack on the driver's side of the
windshield.
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The jury found defendant guilty of murder and attempt
murder.
The court denied defendant's posttrial motion.
Defendant had two prior convictions for aggravated battery
and one prior conviction for possession of a firearm in public
housing.
In mitigation defendant presented certificates showing
his completion of several classes in which he studied religion.
Defendant expressed his remorse and described his acceptance of
Jesus as his Lord and Savior.
As a Christian he recognized the
need to accept responsibility for his actions.
The judge recounted the evidence in mitigation and
aggravation, then he sentenced defendant to 40 years in prison
for murder and 20 years for attempt murder, with the sentences to
run consecutively.
At the conclusion of the hearing, held on
August 21, 2002, defense counsel said:
"[Defendant's] family has talked to me, and they
are not in a position to retain my services for the
appeal.
I would ask the Court to appoint the *** State
Appellate Defender's office for the purpose of
preparing his appeal."
The judge responded, "I will do so.
The State Appellate Defender
is appointed for purposes of appeal."
In March 2003, more than 6 months after sentencing,
defendant wrote to the court, asking for the name of his
appellate lawyer and "any other information" about the appeal.
The record does not show any response to the request.
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No notice
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of appeal had been filed.
On June 23, 2005, defendant filed a petition under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2004)).
He claimed appellate counsel provided ineffective
assistance because counsel failed to file a timely notice of
appeal.
The trial court granted the petition and, as relief
under section 122-6 of the Act (725 ILCS 5/122-6 (West 2004)),
permitted defendant to file a late notice of appeal.
In our initial review we held that we lacked jurisdiction
because the late notice of appeal did not comport with Supreme
Court Rule 606 (Official Reports Advance Sheet No. 17 (August 16,
2006) R. 606, eff. September 1, 2006).
Ill. App. 3d 182, 876 N.E.2d 233 (2007).
People v. Gutierrez, 376
Our supreme court later
decided People v. Ross, 229 Ill. 2d 255, 891 N.E.2d 865 (2008).
The court directed us to vacate our opinion and reconsider the
case in light of Ross.
We have vacated our opinion and we now
reconsider the case.
DECISION
In Ross, as in this case, the defendant did not file a
timely notice of appeal.
The defendant in Ross filed a
postconviction petition alleging his trial counsel provided
ineffective assistance.
The trial court found that counsel's
failure to file a timely notice of appeal constituted ineffective
assistance, and as relief the court permitted defendant to file a
late notice of appeal.
Our supreme court, adopting the reasoning
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of People v. Perez, 115 Ill. App. 3d 446, 450 N.E.2d 870 (1983),
said:
"Section 122-6 is flexible enough to include leave to
file a late notice of appeal among the remedies
available to a trial court in a postconviction
proceeding. The Act, thus construed, constitutes a very
limited exception to Rule 606. We hold that when a
postconviction petitioner demonstrates that defense
counsel was ineffective for failing to file a notice of
appeal, the trial court may allow the petitioner leave
to file a late notice of appeal."
Ross, 229 Ill. 2d at
271.
People v. Torres, 228 Ill. 2d 382, 888 N.E.2d 91 (2008),
restricts the reach of Ross.
guilty to first degree murder.
In Torres the defendant pleaded
More than two months after
sentencing the defendant wrote to the court asking whether
counsel had filed a notice of appeal on his behalf.
The
defendant informed the court that his counsel left the courtroom
directly after sentencing without speaking to defendant and
without discussing the possibility of an appeal.
The clerk
notified the defendant that no one had filed an appeal in his
case.
The defendant filed a postconviction petition, contending
that counsel provided ineffective assistance when counsel failed
to consult with defendant about the possibility of an appeal.
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Our supreme court found a constitutional duty to consult with a
defendant about the possibility of an appeal only " 'when there
is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in
appealing.' "
Torres, 228 Ill. 2d at 396, quoting Roe v. Flores-
Ortega, 528 U.S. 470, 480, 145 L. Ed. 2d 985, 997, 120 S. Ct.
1029, 1036 (2000).
Because the defendant voluntarily pled guilty
to reach a quicker end to judicial proceedings, and the case
presented no nonfrivolous grounds for appeal, his counsel had no
reason to think the defendant should, rationally, want an appeal.
And the defendant had not expressed to counsel any interest in
appealing.
Therefore, the court found that the defendant failed
to show counsel had a constitutional duty to consult with the
defendant about the possibility of an appeal.
Without such a
duty, defendant could not show counsel failed to provide
constitutionally mandated effective assistance.
Section 122-6 gives a trial court authority to allow a
defendant to file a late notice of appeal, even beyond the time
constraints of Rule 606, if defense counsel provided ineffective
assistance when counsel failed to file the notice of appeal.
Ross, 229 Ill. 2d at 271.
But the constitution does not require
counsel to file a notice of appeal, or even to consult with the
defendant about the possibility of an appeal, unless counsel has
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reason to believe the defendant either actually does or
rationally should want to file an appeal.
Torres, 228 Ill. 2d at
396.
The record here shows defendant's family sought to appeal
from the conviction and sentence.
The court explicitly appointed
counsel specifically for the appeal.
Unlike the defendant in
Torres, who heard nothing from the court or counsel to indicate
that anyone would represent him for an appeal, defendant here
heard the court appoint counsel for the appeal, and he should be
able to rely on that appointment.
On this silent record we must presume the court clerk
properly notified the State Appellate Defender of the appointment
as counsel for defendant.
See Lyons v. Ryan, 201 Ill. 2d 529,
539, 780 N.E.2d 1098 (2002) (courts presume public officials
perform functions of their offices according to law and do their
duties).
Appointed counsel never contacted defendant and counsel
never filed a notice of appeal on defendant's behalf.
In this
case, as in Perez (115 Ill. App. 3d at 450), "There is no
indication in the record which explains the apparent lack of
diligence" by appointed appellate counsel.
Following Ross and
Perez, we find the trial court properly granted defendant's
postconviction petition.
The court ordered the correct relief
when it permitted defendant to file a late notice of appeal.
We
have jurisdiction to consider defendant's direct appeal from his
2002 convictions for murder and attempt murder.
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Now we reach the merits of the direct appeal.
Defendant
raises only two issues: the jury should have believed him, rather
than Antonio, and the court imposed too severe a sentence.
"When accounts of events conflict, it is the jury's task to
decide which account is more credible, and a reviewing court may
not overturn that determination unless the evidence is so
improbable or unsatisfactory that it creates a reasonable doubt
of the defendant's guilt."
People v. Wett, 308 Ill. App. 3d 729,
733, 721 N.E.2d 190 (1999).
Defendant contends Antonio's account
lacks credibility because people do not shoot close friends
without strong provocation.
People usually do not fly into a
murderous rage when their friends suggest they may be too
inebriated to drive.
plausible.
Defendant claims his account is more
He testified that Jorge flew into a rage, bashing a
bloody gash into defendant's forehead, when Antonio suggested
defendant had made sexual advances towards Jorge's 14-year-old
sister.
In defendant's account, after defendant wrested the gun
from Jorge's grasp, Jorge deliberately continued his attack,
demanding a steel pipe from his cousin.
Jorge's rage scared
defendant to the point that he shot his friend repeatedly.
He
contends the jury should have found him guilty of only second
degree murder because his unreasonable belief in the need to
defend himself mitigated the offense.
The weight of the evidence does not permit us to overturn
the jury's credibility assessment.
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The jury could find defendant
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not a credible witness because he lied to police.
Defendant's
story suffers from the absence of any steel rod from the crime
scene.
The arresting officer saw no blood on defendant's face.
The cracked windshield supports an inference defendant injured
his forehead in the truck crash, as he initially told police, and
not on the night of the shooting.
Antonio's account, in which defendant suddenly flew into an
unprovoked murderous rage, seems credible.
admitted he found Melissa attractive.
Defendant in court
Both Melissa and Nester
confirmed that Melissa and her brothers disapproved of
defendant's attention to Melissa.
Defendant's disappointment at
rejection and his awareness of the brothers' disapproval may best
explain his alcohol-influenced decision to shoot his friends.
Of
course the prosecution does not show any motive for the crime.
People v. Easley, 148 Ill. 2d 281, 326, 592 N.E.2d 1036 (1992).
We defer to the jury's credibility findings.
Therefore we affirm
the convictions for first degree murder and attempt first degree
murder.
Finally, defendant challenges his sentences of 40 and 20
years.
He does not dispute the court's imposition of consecutive
sentences.
See 730 ILCS 5/5-8-4(a)(i) (West 2004).
The 40 year
sentence fell in the middle of the available range for first
degree murder.
730 ILCS 5/5-8-1(a)(1)(a) (West 2004).
The 20
year sentence for attempt murder falls 10 years short of the
maximum, and only 14 years over the minimum available.
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720 ILCS
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5/8-4(c)(1); 730 ILCS 5/5-8-1(a)(3) (West 2004).
Defendant's
significant criminal history and his use of a firearm in an
essentially unprovoked attack on trusting friends justified a
sentence near the middle of the available range.
We cannot say
the trial court abused its broad discretion by imposing sentences
of 40 and 20 years for the murder and attempt murder.
See People
v. Patterson, 217 Ill. 2d 407, 448, 841 N.E.2d 889 (2007).
We affirm defendant's conviction and sentence.
Affirmed.
HOFFMAN, and HALL, JJ., concur.
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