FIRST DIVISION

December 15, 2008

No. 1-05-3633

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County

)

v. )

)

ARMANDO GUTIERREZ, ) Honorable

) Lon W. Shultz,

Defendant-Appellant. ) 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. Defendant also had keys to a safe in Nester's

room. The safe held a gun. In October 2000, defendant, 24 years

old, married, with two children, told Melissa he found her

attractive. Melissa said to Nester, "You better tell him to quit

that."
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Later that month defendant crashed his truck. He suffered

some bruises but no serious injury. 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. Paramedics took

Jorge and Nester to hospitals. Only Nester recovered. Melissa

told police at the scene defendant shot her brothers. 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. Jorge never

had a gun. Defendant shot Jorge. Jorge told defendant to stop,

but defendant just kept firing. Antonio hid in the garage.

Melissa testified that when she heard the shots she ran to

Nester's room. Nester, wearing only his boxer shorts, had just

woken up. 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. Melissa ran

upstairs looking for the phone. Defendant ran after her. 

Defendant grabbed Melissa and said, "I love you" repeatedly. He

tried to kiss her and he banged her head against the wall. She

told him to stop and put down the gun. Nester struggled up the

stairs to grab defendant. 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. Defendant admitted he

lied to police. He said after the gangbangers passed by, Antonio

asked defendant for his keys. Antonio retrieved the gun from the

safe and handed it to Jorge. A while later the men in the yard

talked about girls. 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. I'll

fucking kill you." Jorge then hit defendant's forehead with the

butt of the gun. 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. Defendant

panicked. He started shooting as he ran to the house and to

Nester's room, looking for his keys. Nester attacked defendant

and defendant shot him. 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. 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). People v. Gutierrez, 376

Ill. App. 3d 182, 876 N.E.2d 233 (2007). 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. In Torres the defendant pleaded

guilty to first degree murder. 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. FloresOrtega, 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. Defendant claims his account is more

plausible. 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. 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. Defendant in court

admitted he found Melissa attractive. 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. 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.