First Division June 4, 2007

No. 1-06-0768 THE PE OP LE OF THE ST ATE OF ILLIN OIS Plaintiff-Appellee,

v. ANTHONY CLARK, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook Cou

nty

98 CR 22970

Honorable Henry R. Simmons, Judge Presiding PRESID ING

JUSTICE

McBRI DE delive

red the o pinion of t

he court : In March 2000, defe

ndant, Anthony Clark, was c onvicted of the June 1998 first-degree murder of Isaac

Soberon. The trial court sentenced defenda nt to a term of 46 yea

rs. On direct appeal, this court affirmed defendant’s c onviction and sentence. See People v. Clark , 1-00-2022 (March 29, 2002) (unpublished order pursuant to Supreme Court Rule 23). In November 2003, defe

ndant filed his first amended postconviction petition alleging that: (1) his right to representation by conflict-free counsel was violated; (2) the tria l court was require d to condu

ct a hea ring on d efenda nt’s pretrial pro se

motion for appointment of counsel other than the public defender; (3) defe ndant was denied his constitutional right to effective assistance of counsel at the sentencing he aring; and (4) defendant wa s denied effective assistance of a ppe ll ate cou nse l. The St ate fil ed a mo ti on t o di sm is s de fen dan t’s pos tco nvi cti on p eti ti on. In May 2004, the trial cour

t dismissed counts I, II

and IV, but gra

nted a hearing as to defendant’ s claim regarding eff

ective assistance of counsel at the sentencing hearing. At the October 2004 hearing on that count, the trial court gr anted defendant a new sentencing hearing. The trial court1-06-0768

2

conducted the new sentencing hea ring in November 2005, at which defendant pr esented several witnesses in mitigation. Following the hearing, the trial c ourt sentenced defendant to a term of 44 years’ imprisonment. Defendant appeals the partial dismissal of his first amended postconviction petition as well as his sentence. In August 1998, defe

ndant was indicted for the first degree murder of Isaac

Soberon. Assistant Public Defender Patrick Moriarty from the Cook County public defende r’s dffice was appointed to represent defendant. Codefenda nts in the case were also represented by assistant public de fenders from the Cook County

public de fender ’s offic e. Defe ndant wa s not tried

jointly with any of his codef

endants. On June 29, 1 999, Assis tant Public Defend er Marij ane Plac ek succe ssfully sought to withdraw as counse l for cod

efenda nt Matthew

Hamill. Pla

cek told t he trial c ourt that t

here co uld be a potential conflict if the State intended to call Jose Ahumada as a witness. Ahumada wa s represented by

another assistant public defender, Ann Collins, on unrelated charges. Placek informed the court that Ahumada would testify that he accompanied Hamill’s brother in hiding the vehicle involved in the shooting. Ahumada would also state that he had bee n told that defendant fired the fatal shots. Additionally , Collins was listed as a potential witness. The trial court fo und that the simultaneous representa tion of a d

efenda nt and a potential witness g ave rise to a potential conflict. A private attorney was appointed to represent Hamill in July 1999. In September 1999, defenda nt filed a pro se

motion for appointment of counsel other than the public defender, in which he contended that (1) he did not have any

meaningful line of communic ation with

his attorney , (2) his c alls to his a ttorney had not be en acce

pted, (3) defense1-06-0768

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counsel did not return the calls from defendant’s family and friends, (4) defense counsel urg ed defenda nt to acc ept a ple a, (5) de fense c ounsel fa iled to ful ly in

vestiga te the ca se, and ( 6) defe

nse counsel failed to contact potential witnesses. At the hearing on the motion, defendant admitted his claim that his calls were not accepted by his attorney was f

alse. Defense counsel stated that he had given defendant his phone number, but had not r eceived any

calls. Defendant claimed that he did not have the phone number. The trial court told defendant that his attorne y did a competent and commendable presentation at a Rule 402 confe rence a month earlier. 177 Ill. 2d R. 402. The trial court found defendant’s motion to be without merit and frivolous and there wa s

no ne ed to ap po in t a ne w a tt or ne y. The following ev

idence was prese

nted at de fendant ’s March 2000 tria l. Joseph DeCl et testif

ied that on the nig

ht of June 24

and into June

25, 1998, he was a passe nger in a car wi th So beron , Mich ael Ko walsk i and K haled El-He lo. El -Helo was dr ivin g a 1993 Cutlass Supreme convertible with the top down. Soberon was in the front passenger seat and DeClet was behind Soberon and Kowalski behind El-Helo. They were driving to a friend’s house near the 5400 block of Campbell Street in Chicago. When they got to the area of Campbell and Balmoral, DeClet saw two or three men on the stre et. The men approached the car and called out, “What’s up, folks?” DeClet stated that he told the men they were not in a gang and to leave them alone. The car turned onto B almoral and two more men came out of the bushes. DeClet saw a flash and heard g unshots. He saw a person coming toward the ca r and firing a gun a t them. De Clet ident

ified de fendant

as the sho oter in a

photo arr ay , a lineup

and in court.1-06-0768

4

DeClet said they pulled into an alley to see who was hurt. DeClet said there was lots of blood in the car and they

soon realized Soberon had been shot in the head. They drove off and found an ambulance at a nearby 7-11 convenience store. Soberon was taken to the hospital and died later that day . Kowalski also testified to the same facts except he was unable to see the gunman’s face, but he did identify Rafael Hernandez, one of defenda nt’s codefendants, as one of the men he saw come out of the trees. Joseph Bembynista, a fore nsic investigator with the Chicago police department, testified that he recovered five car tridge casings from a .25-c aliber Winchester semiautomatic handgun at the scene. Dr. Thamrong Chira per formed the autopsy on Sober on. Dr. Chira said the death was caused by a

gunshot wound to the head and the manner of dea th was homicide. Dr. Chira recovered a small copper-jac keted bullet from Soberon’s brain. The gunshot was not fired a t close range. The parties stipulated that a ba llistics expert, if called to testify, would state that the bullet re covere d from Sobe ron was a .25-cal iber bulle

t. Officer Paul Zucharias testified tha t he is a Chicago police officer and a n expert on Chicago street gang s. He explained that Latin Kings identify themselves as “people,” and the Insane Popes classify

themselves as “folks.” He also stated that sometimes gang members engaged in “false

flagging,” in which they

would identify themselves as membe rs of a rival gang in order to get other gang members to reveal their affiliation. Detecti ve Rober t Ellmore t

estified that he is a

detectiv e in the Ar

ea 3 viole nt crimes unit of the Chicago police department. Detective Ellmore stated that in July 1998, he had a conversation with Christopher Hamill about the shooting death of Soberon. Hamill provided1-06-0768

5

information that led to the arrest of Christopher’s brother Matthew and Raf ael Hernandez. After speaking with Matth ew Hamill

and Her nandez, D etective

Ellmore b egan to

look for Charlie Kh

io and defendant. Detect ive S tephe n Scho rsch t estif ied th at he i s a det ectiv e with Area 3 o f the C hicago police department. He stated that he learned f rom another police officer that defenda nt was stay ing at the home of

a family friend in East Chica

go, I ndiana. D etective

Schorsch went ther

e to arrest defendant. Defendant a greed to surrender himself to the police. De fendant was held at the police station in East Chicago, Indiana , until he could be extradited to Chicago. Detecti ve Schor sch ga

ve defe ndant his Miranda

rights, which defendant waived and agreed to speak with Detective Schorsch. Defendant admitted that he was involved in the shooting. He agreed to give a written statement to Assistant State’s Attorney (ASA) Carmen Aguila r. Detec tive Schor

sch furt her testi fied tha

t defend ant agr eed to g o with him to

the crime scene, where he pointed out his route on the night of the shooting . Defendant told Detective Schorsch that the shooting occurred after he, Matthew Hamill, Khio and Hernandez, all members of the Latin Kings, discussed a venging the death of a fe llow gang member who was killed by the Insane Popes. The men we nt to the area around Balmoral and Campbell, which wa s Insane Popes ter ritory, to find a

n Ins ane Pope s member t o kill. Ham

ill obtaine d a semia

utomatic handgun, gave it to defendant a nd told him to wait. Hamill and Khio waited on the street corner while defendant hid between some bushes and a building. Eventually, defe

ndant saw a white convertible driving on Campbell Street and He rnandez shouted “we got some.” Defendant told Dete ctive Schorsch that he fired three shots over the top1-06-0768

6

of the ca r while de fendant

was cro uched down. Hamil l ordere d defend ant to kee p shooting

so defendant ran down the street toward the c onvertible and fired three more shots. Defenda nt and the others fled. Defendant told Detective Schorsch he hid the gun in some bushes, but when defendant took Detective Schorsch to that location, the gun was not there. ASA Agu ilar test ified tha t she took d

efenda nt’s state ment at the

police sta

tion in Eas t Chicag o, In

diana. Sh e read d

efenda nt’s state ment into the recor

d, which c ontained

essentia lly the same facts as Detective Schorsch’s testimony . The statement also indicated that defendant was 18 y ears old at the time

of the sho oting. D efenda nt also expla

ined that Hamill wa s a “cosinc a” in the

Latin Kings, w hich mea nt that he was sec ond in command, and Hernan dez was a “chief enforcer,” who is someone authorized to give orders. The St ate res ted aft er ASA Aguil ar’s t estim ony. Defen dant m oved f or a di rected findi ng, which the trial court denied. Defend ant pres ented the

testimony

of Alma Pe

rez and he

r sister M elissa Pe

rez. Alma stated that defendant was at her house the nig ht of the shooting. She recalled this more than a year a fter the shooting. She remembered those dates spe cifically bec ause her son’s birthday was a couple of day s later a nd they had bee n prepar ing for a party . She admit

ted that she never

came forward to the court until that the day of her testimony. Alma also stated tha t she was very

good friends with the Latin Kings’ me mber who had been killed by the Insane Popes. Melissa stated that she is the mother of defendant’s child. She said she did not remember that defendant was at her house on the night of the shooting until her sister refreshed her memory in late 1999.1-06-0768

7

Following closing arguments, the jury found defendant guilty

of the first degree murder of Soberon. At a subse quent sen tencing hearing , the tria

l court se ntenced defenda nt to 46 y ears in prison. D efense

counsel d

id not pre sent any

witnesse s in mitiga

tion and on

ly a sked the c ourt to consider defendant’s age, la ck of prior felony

convictions and potential for rehabilitation. On direct appeal, defendant raised two issues: he c laimed the State made improper references to Soberon’s family during closing arguments and the trial court abused its discretion in sentencing. This court affirmed defe ndant’s conviction and sentence. In November 2003, defe

ndant filed his first amended postconviction petition. Defendant argued that: (1) his right to repre sentation by conflict-f ree counsel was violated; (2) the trial court wa s requir

ed to cond

uct a hea ring on d efenda nt’s pretrial pro se

motion for appointment of counsel other tha

n the publi c defen

der; (3) defenda nt was de nied his c onstitutional righ t to effective assistance of counsel at the se ntencing hearing; and (4) de fendant was denied effective assistance of appellate counsel. As to the first claim, defe ndant contended that his trial counsel should have filed a

motion to wi

thdraw b ecause

defense counsel was from the Cook Coun ty public de fender ’s offic e and tha t the same

conflic t presen

t in Matthe

w Hamill’ s case existed in his case. Defendant asserted that the conf lict was even more profound in his case because the Cook County public defender r epresented multiple codefendants and a witness who g ave a statemen t implicati

ng def endant. The State filed a motion to dismiss, and after hearing arg uments from both sides, the trial court dismissed the claims relating to the conflict of interest, attorney negligence and ineff

ective assistance of appellate counsel. The trial court noted tha t Placek and Collins were in the murder1-06-0768

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task force unit of the Cook County public de fender’s office, wherea s defendant’s trial counsel was in the

separa te multiple

defenda nt unit. The

court concluded t

hat ther e was no c onflict in defendant’s case. The trial court denied the State’s motion to dismiss on the claim of ineffective assistance of trial counsel at sentencing and g ranted a hearing. Following the hearing, the trial court ordere d a new se

ntencing hearing because defense counsel f ailed to c all seve

ral ava ilable witnesses in mitigation. At the November 2005 sentencing hearing , the State presented an impact statement from Soberon’s mother as well as presentence investig ation reports. Defendant presented the testimony of severa

l family members and f

riends through live testimony a nd affidavits. Defendant also called Dorothy Papchristos, a gang specialist who knew de fendant, and Dr. Ruben Gur, a neuropsy

chologist and professor at the University of Pennsylvania. Defendant’s family

and friends testified that defendant was not a ty pical gang member. They discussed his devotion to his family and his efforts to keep his y ounger siblings and friends from joining a gang. They said that defendant regretted joining a gang, but feare d leaving because of the retaliation aga inst himself and his family. Defenda nt left the neighborhood twice in an eff ort to dista

nce himse lf from the gang . Once he moved to F lorida to l ive with hi s grandmother, and then later he par ticipated in the Lincoln’s Challenge , a program for troubled youth. Defenda

nt earned his GED while in the program. Papac hristos testified about the hierar chy of gan gs and that it was a

reasona ble for d efenda nt to fea r retali ation. Pap achristo s also stated that defendant could have been killed for violating a direct order from Hamill, a “cosinca.”1-06-0768

9

Dr. Gur testified about adolescent brain development and tha t an adolescent is not as culpable for his actions as an adult with a fully de veloped brain. The trial court found that Dr. Gur’s testimony had very little value be cause Dr. Gur never examined defendant as an adolescent. I nstead, the court said that Dr. Gur’s testimony was not supported by the testimony of defendant’s friends and family, who described him as a mature, responsi ble and r espectf ul adoles cent. Th e court f ound that d

efenda nt made th e decisi on to join the gang and to ge

t tattoos to evidence his affiliation. The court considered the g ang influence, but noted t

hat defe ndant did n

ot experie nce any reperc ussions wh en he lef

t to live wit

h his grandmother and to attend Lincoln’s Challenge. The court concluded that def endant needed a structur ed envir onment for a long

time. The

trial cou rt then se ntenced defenda nt to 44 y ears’ imprisonment. The trial court denied defendant’s motion to reconsider sentenc ing. This appeal followed. On appeal, defendant arg

ues that the trial court erred in dismissing his first amended postconviction petition and failed to fully consider the mitigating evidence presented a t defendant’s sentencing hear ing. Before we consider the mer its of defendant’s appeal, we must consider our jurisdiction. One week before oral ar

gument, the State filed a motion contesting this court’s jurisdiction over three of the four issues ra ised by defenda nt. The Sta

te conte nds that un

der Supre me Court Ru

le 60 6( b) (2 10 Ill . 2 d R . 6 06 (b )) , d ef en da nt wa s r eq ui re d t o f

il e h is no ti ce of

ap pe al wi th in 30 da ys of the trial court’s October 27, 2004, order g ranting a new sentencing he aring because that order disposed of the final remaining issue on defendant’s postconviction petition. Acc ording to the1-06-0768

10

State, defendant’s notice of appeal filed Marc h 10, 2006, only preserve s the appeal of the February 10, 2006, sentencing order and we should dismiss the issues from defenda nt’s dismissed p ostconvic

tion claim s. Section 122-7 of the Illinois Post-Conviction Hearing Act (Post-Conviction Act) state s that “[a]ny final judgment enter ed upon [a postconviction] petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.” 725 ILCS 5/122-7 (West 2004). This jurisdiction question was addressed by the Second District in People v. Fikara , 345 Ill. App. 3d 144 (2003). In Fikara , the trial court dismissed four allegations in the defendant’s postconviction petition and granted a new sentencing hearing based on a claimed Apprendi violation. Fikara , 345 Ill. App. 3d at 150. As in the in stant ca se, the de fendant did not file

his notice

of appea l until aft er his new sentencing hearing

. Fikara , 345 Ill. App. 3d at 151. The State arg ued that the reviewing court did not have jurisdiction to consider the issues raised from the dismissed counts in the postconviction petition because the notice of appeal was not timely filed. Fikara , 345 Ill. App. 3d at 151. The Fikara

court, relying

on People v. Scott , 194 Ill. 2d 268, 278-79 (2000), and People v. Joyce , 1 Ill. 2d 225, 227 (1953), pointed out that “Illinois courts have held that an order that disposes entirely of a postc onviction petition is immediately appealable, eve n if the order does not ultimately dispose of the criminal proce edings against the defendant.” Fikara , 345 Ill. App. 3d at 151. In Scott , the supreme court found that when the trial court g rants a new sentencing hearing from a postconviction petition, the State is allowed to immediately appeal that order. Scott , 194 Ill. 2d at 278-79. The Scott court noted that if an appeal was not permitted until after1-06-0768

11

the new sentencing hearing , then the State would be denied its right to seek review of the tria l court’s decision. Scott , 194 Ill. 2d at 279. The same analy sis follows in cases like Fikara and the present case, in that, if the State is permitted to appeal a final orde r, then the defendant should do

so as w ell. “ Such a n orde r, whi le not necess arily dis posi ng of th e crim inal p roceed ing, nonetheless is a final disposition of the petition under the Act.” Fikara , 345 Ill. App. 3d at 151- 52, ci ting Joyce , 1 Ill. 2d at 227. The reviewing court in Fikara

found that the trial court’s order dismissing

the postc onviction

petition in

part and granti ng a ne w sentencing he aring “

resolve d all issues raised in the postconviction petition and was a final disposition of the petition under the Act.” Fikara , 345 Ill. App. 3d at 152. Accordingly, that order wa s immediately appeala ble and the defendant was required to file a notice of appeal within 30 days. Fikara , 345 Ill. App. 3d at 152. The court found the defendant’s failure to file a timely notice of appea

l deprived it of jurisdiction. Fikara , 345 Ill. App. 3d at 152. However, the Fikara

court supplemented its opinion upon denial of rehearing. I n the suppleme ntal opinion, the cou

rt consid ered the defenda nt’s asse rtion that the trial court fa iled to order the clerk

of the ci rcuit co urt to pro vide the d

efenda nt with imme diate not

ice of th e adverse judgment as required by

Supreme Court Rule 651(b) (134 Ill. 2d R. 651(b)) and tha t this failure should excuse his untimely notice of appeal. Fikara , 345 Ill. App. 3d at 157-58. “Supreme Court Rule 651(b) requires that, upon the entry of a judgment adverse to a defe ndant in a postconviction proceeding, the clerk of the trial c ourt ‘shall at once mail or deliver’ to the defendant a notice advising him of the entry of the order and advising him of his right to appea l.” Fikara , 345 Ill. App. 3d at 158, quoting 134 Ill. 2d R. 651(b). The reviewing court reviewe d the1-06-0768

12

record and concluded that the clerk of the trial court failed to provide the defendant with the required notice of the adverse judg ment and the trial court also failed to admonish the defendant about the finality of the orde r and the need to file a notice of appeal within 30 day s. Fikara , 345 Ill. App. 3d at 158. The Second District noted that in cases where the requir ements of Rule 651(b) have not been sat isfied, “ the revi ewing c ourt must tr eat a de fendant's untime ly notice of appeal a s a petition f or leave to file a l ate notic e of appe al within the contem plation of Supreme C ourt Rule 606(c) (188 Ill.2d R. 606(c)) .” Fikara , 345 Ill. App. 3d at 158. “The review ing court must then grant the petition and consider the merits raised in the def endant's appeal.” Fikara , 345 Ill. App. 3d at 158. “The reviewing court must allow the filing of a late notice of appeal even when the six-month pe

riod for seeking leave to file a la te notice of appea l provide d in Rule 60 6(c) [188 Ill. 2d R. 606(c)] has already expired.” Fikara , 345 Ill. App. 3d at 158. The Fikara court he ld that in light of the trial court’s failure to “ensure c ompliance” with Rule 651(b), the reviewing court must treat the untimely notice of appe al as a petition to file a late notice of appeal and consider the merits of the defendant’s postconviction claims. Fikara , 345 Ill. App. 3d at 158. We find the decision in Fikara to be well reasoned and agre e with its analysis. Here , the trial court initially dismissed three of the four claims in defendant’s postconviction petition and ordere d an ev ident iary heari ng on de fendan t’s se ntenc ing cla im. A fter t he evi denti ary hearin g, the trial court granted defenda nt a new sentencing hearing , thus resolving the final claim from the postconviction petition. Defendant then failed to file a notice of appea l within 30 days of that October 27, 2004, order in which the trial court disposed of all claims from the postc onviction1-06-0768

13

petition. However, based on our reading of the record on appeal, the clerk of the trial court failed to comply with Rule 651(b). The cle rk of the circuit court failed to give def endant the required notice of an adve rse judg ment unde

r Rule 651 (b). Add

itionally , the tria l court did

not admoni sh defenda nt about hi s right to

appeal u ntil its ruli

ng at de fendant ’s sente

ncing h earing . As in Fikara , we must treat defendant’s untimely notice of appeal as petition to file a late notice of appeal a nd conside

r the issue s defend

ant has r aised fr om the dismi ssed port

ion of his postconviction petition. The Post-Conviction Act (725 IL CS 5/122-1 through 122-8 (West 2000)) provides a tool by which those under

criminal sentence in this state can assert that their convictions were the result of a substan tial denia l of their rights u nder the United Sta

tes Constitu

tion or the

Illinois Constitution

or both. 72 5 ILCS 5/122-1( a) (West 2 000); People v. Coleman , 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at the original trial. Coleman , 183 Ill. 2d at 380. “A procee ding brought under the [Post-Conviction Act] is not an appeal of a defendant's under lying judg

ment. Rather, it is a collateral attack on the judgment.” People v. Evans , 186 Ill. 2d 83, 89 (1999). “ The purpose of [a postconviction] proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on dire ct appeal.” People v. Barrow , 195 Ill. 2d 506, 519 (2001). Thus, res judicata bars consideration of issues that were raised and de cided on direct appeal, and issues that could have been pre sented on direct appeal, but were not, are considered waived. Barrow , 195 Ill. 2d at 519. However, the doctrine of waiver is relaxed where the alleged waiver stems from the incompetenc e of appellate counsel. People v. Harris , 206 I ll.1-06-0768

14

2d 1, 33 (2 002). The

standar d of revi ew for d

ismissal of

a postcon

viction pe tition is de novo

. Coleman , 183 Ill. 2d at 389. At the first stage, the circuit court must independently review the postconviction petition within 90 days of its filing and de termine whether “the petition is frivolous or is patently without merit.” 725 IL CS 5/122-2.1(a)(2) (West 2002). If the c ourt determines that the petition is either frivolous or patently without merit, the cour t must dismiss the petition in a written order. 725 IL CS 5/122-2.1(a)(2) (West 2002). If the c ircuit court does not dismiss the postconviction petition as frivolous or patently without merit, then the petition advanc es to the second stage. Counsel is appointed to represent the defendant, if necessa ry (725 I LCS 5/122-4 (West 2002)), and the Sta

te is allowed to file

responsi ve plead ings (72 5 ILCS 5/122-5 ( West 2002) ). At this stage, the circuit court must determine whether the petition and any ac companying documentation make a substantial showing of a constitutional violation. See Coleman , 183 I ll. 2d at 381. If no such showing is made , the petition is dismissed. If, however, a substantial showing of a constitutional violation is set forth, then the petition is advanced to the third stage, where the circuit court conducts an evidentiar y hearing . 725 IL CS 5/122-6 (West 2002). “A defe ndant is no t entitled

to an evid

entiary hearing on a post[]conviction p etition as a matter of right.” Barrow , 195 Ill. 2d at 519. “An evidentiary hearing is warranted on a postconviction petition only where the a llegations of the petition, supported where appropriate by the trial record or accompany ing affidavits, make a substantial showing that a def endant’s constitutional rights have been violated.” Peopl e v. Ora nge , 19 5 Ill . 2d 437 , 44 8 (2 001 ). “ In determin ing whe ther to g rant an e videntia ry hearing , all well -pleade d facts in the petiti on and in1-06-0768

15

accompany

ing affidavits are taken as true.” Orange , 195 Ill. 2d at 448. Defend ant first contends that the tr

ial cour t erred in dismissin

g his cla im that his r

ight to conflict-free counsel was violated. Def endant asserts that his trial counsel labored under a conflic t of inter

est beca use his at torney was from the public

defende r’s offi ce, whic

h also represented defendant’s code fendants and a potential witness. The trial court was made a ware of the potential conflict when the assistant public defender repr esenting one of defendant’s codefendants sought to withdraw due to a potential conflict of interest. Defendant later filed a pro se motion see

king ne w counse l and incl

uded a c laim that the continu ed repr esentat ion would evince “an absolute conflict of interest.” Howe ver, the pro se

motion did not discuss the conflict of interest in any de

tail. Defendant claims that the trial court was obligated to conduc t an inquiry as to any conf

lict in defendant’s case. A defendant's sixth amendment right to effective a ssistance of counsel includes the right to conflict-free representation. People v. Hardin , 217 I ll. 2d 289, 2 99 (2005) ; People v. Morales , 209 Ill. 2d 340, 345 (2004). In People v. Spreitzer , 123 I ll. 2d 1, 14- 17 (1988) , the I llinois Su pr em e C ou rt ou tl in ed th e f ra me wo rk fo r c on si de ri ng co nf li ct of in te re st ca se s. Sp ec if

ic al ly, the court noted the dichotomy be tween per se

conflicts and alleged conflicts. A per se conflict of interest exists where “certain facts about a def ense attorney's status were held to engende r, by themselves , a disabling conflict.” (Emphasis in original.) Spreitzer , 123 Ill. 2d at 14. When a per

se conflict of interest is shown, a defendant is not required to show prejudice resulting from the conflict in order to obtain relief. Spreitzer , 123 Ill. 2d at 15. A per se conflict is grounds for reversal unless the defendant waived his rig ht to conflict-free counsel. Spreitzer , 123 Ill. 2d at1-06-0768

16

17. The supreme court has found a per se conflict when (1) defense counsel had a contemporaneous relationship with the victim, the prosecution, or an entity assisting the prosecution ( People v. Lawson , 163 I ll. 2d 187, 2 11 (1994) (collecting ca ses)), (2) defe nse counsel c ontempor

aneously repres ented a prosecut

ion witnes s ( People v. Thomas , 131 Ill. 2d 104, 111 ( 1989)), a

nd (3) de fense c ounsel wa s a forme r prosec utor who had been

persona lly involved i

n the pros ecution o f the def endant (Lawson , 163 Ill. 2d at 217-18). In the second c lass of a

lleged conflic ts, reve

rsal is not automatic

and somet

imes cour ts have refused to reverse a c onviction without some showing that conflict actually affected the attorney' s performance. Spreitzer , 123 Ill. 2d at 17. These ty pes of conflicts have often involved joint or multiple representation of codefendants. Spreitzer , 123 I ll. 2d at 17 . “Trea ting multi ple representation as creating a per se conflict would put an end to multiple representation altogether, since a ‘possible conflict inheres in almost every instance of multiple representation,’ and a per

se rule would ‘preclude multiple representation even in ca ses where “[a] common defense *** gives strength against a c ommon attack.” ’ ” Spreitzer , 123 Ill . 2d at 17, qu otin g Cuyler v. Sullivan , 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346, 100 S. Ct. 1708, 1718 (1980), quoting Glasser v. United States , 315 U.S. 60, 92, 86 L. Ed. 680, 710-11, 62 S. Ct. 457, 475 (1942) (Frankfurter, J., dissenting). The analysis of a

n alleged conflict depends on when the issue wa s raised before the trial court. I f the pote

ntial con flict is br

ought to t he atten tion of the

trial cou rt by counsel a t an ear ly stage, a duty

devolves upon the tr

ial cour t to either appoint se

parate counsel or to take

adequa te steps to ascertain whether the risk of conflict was too re mote to warrant separate counsel.1-06-0768

17

Spreitzer , 123 I ll. 2d at 18 ; Holloway v. Arka nsas , 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1 178 (1978 ). “While t his rule is not per se

(sinc e it i s the a ttorn ey's contemporaneous allegations of a conflict a nd not the mere presence of multiple representa tion which gives rise to the trial court's duty ), reversal of a conviction under this rule does not re quire a showing that the attorney 's actual performance was in any way affected by

the purported conflict. In this sense, reversal for the trial court's failure to alleviate possible or pote ntial conflicts does not require a showing of ‘spec ific prejudice.’ ” Spreitzer , 123 Ill. 2d at 18; quoting Holloway , 435 U.S. at 487, 55 L. Ed. 2d at 436, 98 S. Ct. at 1180. “However, if the trial court is not apprised of the potential conf lict, then reversal of the conviction will only be had upon a showing that ‘an actual conflict of interest adversely affected’ counsel's performance.” Spreitzer , 123 Ill . 2d at 18, qu otin g Cuyler , 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at

1719. “[T]he

defenda nt must point

to some spe cific de fect in h is counsel's strategy, tactics, or decision making attributable to the conflict.” Spreitzer , 123 Ill. 2d at 18. “While mere speculative or hy pothetical conflicts are insufficient to demonstrate [an] actual c onflict of

interest [citation], a

defenda nt need not prove the confli ct contr ibuted to h

is conviction [citation].” People v. White , 362 Ill. App. 3d 1056, 1060 (2005). Here, defendant claims that a per se conflic t exists in this case be cause the public defender’s office repr

esented codefendants and Ahumada, a pote ntial witness against defendant. Ahumada ’s public

defende r was als o listed as

a potenti al witnes s by

the State . Defen

dant also asserts that a per se

conflict exists when counsel represents multiple defendants who are pursuing antagonistic defenses, but the case re lied on for this contention, People v. Simmons , 67 Ill. App.1-06-0768

18

3d 1045 (1978), predated the supreme court’s dec ision in Spreitzer , which clarified the situations creating a per se

conflict of interest, and the reviewing cour t in Simmons found the conflict issue to be waived. Moreover, this case does not involve antag onistic defenses. “Defenses are antagonistic when each codef endant implicates the other in the offense and professe s his own innocence.” People v. McCann , 348 Ill. App. 3d 328, 335 (2004). Here, c odefendants gave statemen ts to the po lice that

implicate d defend

ant, but none of the

codefe ndants we

re tried jointly with defendant nor did they testify at defe

ndant’s trial. These facts distinguish this case from cases that successfully

raised the presence of antagonistic defenses as the basis for a conflict of interest. See White , 362 Ill. App. 3d at 1061 (actual conflict of interest was shown where attorney re

presented codefendants tried toge ther and cross-examined a witness to benefit one codefendant at the expense of the other). Defendant argues that the re presentation of codefendants and a potential witness by the public de fender

and the in

clusion of an assista

nt public d

efende r as a pot ential wi tness ga ve rise to a per se

conflict of interest. Defendant implies in his argument that bec ause a conflict of interest existed for codefendant Hamill, a conflict of interest existed for him as well. Def endant further asserts that the trial court receive d notice of the conflict in defendant’s case whe n codefe ndant Ha mill’s publ ic defe

nder ra ised her conflic t claims a

nd was the

refore require d to perform an inquiry

as to how the conflict affected defenda nt. Defendant relies on Spreitzer and Holloway , to support his assertion that the trial court was obligated to consider whether a conflict of interest existed in his case. We find the supreme court’s decision in Morales to be instructive. In Morales , the court1-06-0768

19

reversed the appellate court’s finding of a per se

conflict of interest when the defendant’s attorne y a lso repr esented a prosec ution witne ss. The re

viewing court fo und that si

nce the w itness represented by

defendant’s attorney

never testified at trial, defense counsel neve r assumed the role of attorney

for a prosecution witness and declined to find a per se conflict. Morales , 209 I ll. 2d at 346. The supreme court further explained that nothing in the re cord indicated that the witness stood to gain anything in a verdict against the defendant. Morales , 209 Ill. 2d at 346-47. In the instant case, none of de fendant’s codefendants, Ahumada, or his attorne y testified at defe ndant’s t rial. Not hing wa s presen

ted at de fendant ’s trial that implica ted the pu blic defende r’s offi ce as re

present ing con flicting

interest s. Base d on the sup reme co urt’s de cision in Morales , we find that there was no per se conflic t of inter est since at defe ndant’s t rial the only interest repres ented by

the public

defende r’s offi ce was d

efenda nt’s. Additionally, in Morales , the supreme court clarified its holding in Spreitzer that a trial court has a duty to e ither appoint separate counsel or take adequa te steps to ascertain whether the risk of conflict was too remote to apply only when defense counsel informs the court of the potential conflict. Morales , 209 Ill. 2d at 347-48. The Morales court noted that the United States Supreme Court confirmed that the rule in Holloway of automatic reversal applies only when a trial court fails to respond appropriately to defense counsel's objection to a repre sentation. Mickens v. Taylor , 535 U.S. 162, 168, 152 L. Ed. 2d 291, 302, 122 S. Ct. 1237, 1241-42 (2002). The Morales co ur t d ec li ne d t o a pp ly Holloway in that instance because neither defense c ounsel nor defendant raised the potential conflict. Morales , 209 Ill. 2d at 348. It is u ndisputed that def endant’ s trial co

unsel did n

ot raise a potentia l conflict of inter

est1-06-0768

20

before the trial court, but defendant asser ts that the trial court should have conducted an inquiry in defendant’s case based on the conflict issue ra ised in codefendant Hamill’s case. Additiona

lly, defenda

nt conten ds that he raised the issue be fore the trial cou rt in his pro se motion for appointment of counsel other than the public defender. The only mention of a conflict of intere st was: “Defe ndant ave rs that his rights have bee

n and sha ll continue to be substantially harmed a nd prejudiced by the continued representation of appointed counsel, evincing an absolute conflict of interest [citations omitted] in order to receive meaningful and effective assistanc e and zealous advocacy of counsel.” Defendant did not assert any facts relating to a conflict of interest. The mere mention of “an absolute conflic t of inter

est” was not suffic ient to mak

e the tria l court a ware of any conflic t as it relates to defendant. I

n the context of a potential conflict between two public defenders, the conflict issue will normally be ra ised by the defe

ndant. Hardin , 2 17 Ill . 2 d a t 3 03 . C on se qu en tl y, the defe ndant nee ds only

to prese nt the gi st of such

a confli ct. “The

defenda nt must sket

ch, in limited detail, a picture of how the working relationship between the public defenders created an appearance of impropriety .” Hardin , 217 Ill. 2d at 303. “Relevant factors include whether the two public

defende rs were trial par tners in the defen

dant's c ase [cita

tions]; whether the

y w ere in hierarchical positions where one supervised or wa s supervised by the other [citations]; or whether the size, structure, and organization of the office in which they worked affected the closeness of1-06-0768

21

any supervision [citations].” Hardin , 217 Ill. 2d at 303. Even though the threshold is low, defenda nt’s pro se

motion makes no mention of what conflict of interest existed and does not discuss his codefendants or the public defender’s off ice’s multiple representations. Based upon these facts, defendant did not raise the gist of a claim of a conflict of interest. Moreover, defendant has not cited any authority to support his assertion that the trial court wa s obliga

ted to con duct an in quiry in defen dant’s c ase base d on the co nflict of interest raised in codefendant Hamill’s case. Nothing in Holloway

and Spreitzer

require s a trial c ourt to sua sponte

conduct an inquiry in a de fendant’s case based on motions brought in a code fendant’s case. In addition, the I

llinois Supreme Court has held that “in determining whether a conflict of interest exists, individual attorneys who comprise the staff of the public defender, unlike members o f a priva

te law fi rm, are not membe

rs of an e ntity , ‘which

should be s

ubject to the rule that if one attorney

is disqualified by reason of a conflict of interest then no other member of the entity may

continue with the representation.’ ” People v. Brown , 172 Ill. 2d 1, 44 (1996), quot ing People v. Robinson , 79 Ill. 2d 147, 159 (1979). I n cases involving the public defender’s office, the trial court must conduct a case-by -case inquiry

to determine whether the risk of a conflic t colore d the def

endant' s repre sentation , but only when the potentia l conflict is broug

ht to the court's attention. Hardin , 217 Ill. 2d at 302; see also People v. Banks , 121 Ill. 2d 36 (1987). Based on the foregoing

analysis, we find that a

potential conflict relating to defendant’s representation by

the public defender’s office was not broug ht to the attention of the trial court before trial, and therefore, the tria l court was not obligated to conduct an inquiry

. Next, we lo ok to see i f defen dant has a lleged any defect in his representa

tion attri butable1-06-0768

22

to the conflict. Under Spreitzer , reversal of the conviction will only be had upon a showing that an actual conflict of interest adversely affected counsel's perf

ormance and defendant must point to some specific defect in his counsel's strateg y, tactics, or de cision making attributable to the conflict. Spreitzer , 123 Ill. 2d at 18. Here, defe ndant has not alleged any defect in his trial counsel’s performance related to the pote ntial conflict of interest. Accordingly, we find that defendant has not shown that his trial counsel labored under an a ctual conflict of interest that adversely affected his performance. Defendant next argues that the existing Illinois Supreme Court case law for examining conflicts within the public defender’s office diffe rently than a law

firm violated defendant’s equal protection. We need not review defendant’ s equal protection argument because defendant lacks sta nding to r aise it. Sta

nding in I llinois re quires on

ly s ome injury

in fact to a lega lly cognizable interest. Greer v . Illi nois Housin

g Deve lopment Au

thority, 122 Ill. 2d 462, 492 (1988). Since we have found that defendant wa s not deprived of his right to conflict-free representation, he “ ‘is not agg rieved by the a

lleged deprivation of equal protection and consequently lac

ks standing to raise this issue.’ ” People v. Campa , 217 Ill. 2d 243, 268 (2005); quot ing People v. Boy

kin , 94 Ill. 2d 138, 147 (1983). Next, defe

ndant ass erts that

the trial court did not make a

n adequa te inquiry into his pro

se claim that his trial counsel was neglecting his case . The State maintains that the trial court conducted an adequate inquiry into defendant’s motion, and the trial court properly dismissed this postconviction c laim. The following dis cussion to ok place when the trial cou rt consid ered de fendant ’s pro se1-06-0768

23

motion: “THE COURT: You’re telling me that y our phone calls are not accepted at the Public Defender’s off ice? THE DEF ENDANT: Well– THE COURT : That’s w

hat this sa ys. Number th

ree say s, the defendant’s phone calls have not been a ccepted by

that office. Is that w hat you are saying? THE DEFENDANT: Well, I– (ina udible) THE COURT : So that’s n ot true, r ight? THE DEFENDANT: No, sir. THE COURT: So, point number three, part of it is not true. I’ll scratch it off. His phone number is available. Your phone number is availab le to him, is

that cor rect? You ha

ve voice mail? MR. MORI

ARTY [Def

endant’ s attorne

y]: Y es. THE COURT: Has he ever called y ou? MR. MORIARTY: No. THE COURT : You ga

ve him tha

t phone nu

mber, rig ht? MR. MORIARTY: Yes, sir. THE DEFENDANT: Sir, I ne ver got a phone number from him to call

him. THE COURT : Did y

ou call a nyone in the Pu

blic1-06-0768

24 Defender’s Office? THE DEFENDANT: I

never had a number. THE COURT : I’m

quite ce rtain tha t his phone

number is available in the County Jail, and it’s easily attainable, and y

ou could have called if y

ou needed to contact y

our lawyer

. You could have called the Public Defender’s of fice, and they would g ive you Mr. Moriarty ’s phone number, if it is in fact true that you don’t have

his phone number. THE DEFENDANT: Out of all due respect to Mr. Moriarty, I

need to find out what’s going on with my case, you know, and he really

doesn’t tell me anything

that I need to know, you know. THE COURT: Well, we had an extensive conference back in Augus t, Augus t 11th. I made an o ffer. A

nd all I can tell y ou is that your attorney

represented y

ou during that conference, and spoke up on yo

ur behal f, and did

a compet ent and c ommendab le presentation during that conference

. THE DEFENDANT: I

didn’t really wa

nt to go into the 402 conference. I

t was a mistake. THE COURT : Well, I

asked y ou, and y ou said y ou did. So maybe now y

ou are having afterthoug

hts about it, and I respect1-06-0768

25 that. But you neve

r — I asked y

ou particular questions, and y ou said you wanted me to discuss the c ase. In a ny e vent, I have re ad throug

h yo ur motion, and I

find it to be witho

ut merit a nd frivol ous. Mr. Moriarty has pr

acticed before me many

years. H e’s well experienced. He used to be a Chicago police officer. He’s been a la wy er for ma

ny y ears an d there’ s nothing

in here t hat tells me that he’s not doing any thing but his job. And he’s more than happy to meet with y

ou and discuss your ca se with you. I’m n ot going to appoint

any one outsid

e of the Pu

blic Defend er’s of

fice t o repre sent you. So no w, if t hey want t o chan ge the attorneys to the Multiple Def endants’ unit and give y

ou a different lawy

er, that’s up to them, but I’m not going to appoint somebody outside of the Public Defe nder’s office to represent y ou. So, your motion is denied.” Defendant cites to the supreme court decision in People v. Moore , 207 Ill. 2d 68 (2003), for support. In Moore , the defendant filed a pro se motion for appointme

nt of new counsel w

ith the trial court during pretrial discovery and then after trial filed a second pro se motion seeking new counsel. Moore , 207 Ill. 2d at 76-77. The trial court’s only response to the defendant’s posttrial motion was to appoint the State Appellate Defender as counsel on appea l. Moore , 207 Ill. 2d at 77.1-06-0768

26

The supreme court held that when a defenda nt files a pro se posttrial claim of ineffective assistance of counsel, the trial court must conduct an inquiry into the factual basis of the claim. Moore , 207 I ll. 2d at 78 . “I f the tria l court de termines that the c laim lacks merit or pertain s only to matters of trial strategy , then the court need not appoint new counsel and may deny the pro se motion.” Moore , 207 Ill. 2d at 78. “During this evalua tion, some interchange between the trial court an d trial co unsel re gardin

g the fa cts and c ircumsta

nces sur rounding the allegedly ineffe ctive re

present ation is pe

rmissible and usua lly necessa

ry in assess ing wha

t further action, i f any, is warr

anted on a defendant's claim.” Moore , 207 Ill. 2d at 78. The evaluation can inc lude asking the trial counsel questions to explain the facts and circumstances of the motion and a brief discussion between the trial court and the defendant. Moore , 207 Ill. 2d at 78. Also, the trial court can base its evaluation of the ineffective assistance claims on its observations of the defendant’s attorney

at trial and the insufficiency of the defendant’s allegations on its face

. Moore , 207 Ill. 2d at 79. Here, w e find tha

t the tria l court c onducted

a suffic ient inquir

y in to the alle gations

in defenda nt’s pro se

motion. The

trial cou rt inquire d into the prepara tion of the

motion with defendant and also asked about defenda nt’s claim that his trial counsel would not accept his calls. Defend ant then a dmitted tha

t alleg ation was

false. T he trial c ourt indic ated on the recor d that it found de fendant ’s motion to be withou

t merit ba sed in par

t on its obse

rvations of defe nse counsel’s representation of defendant during the Rule 402 conference. These observa tions of defendant’s attorney ’s performance are par t of a proper evaluation under Moore . Additionally, at the hear ing on de fendant ’s postconviction p etition, the trial c ourt fur ther expla ined its1-06-0768

27

consider ations of defenda nt’s pro se motion. The court noted that “the most compelling part of the inquiry” was tha

t in response to the first question asked of defendant, defenda nt admitted that he lied. T

he court also state d that def

endant’ s “claims

basical ly w ere of a

gener al natur e, that hi s attorne y w ouldn’t ta

lk to him, he

calls him, wouldn’t a

ccept hi s phone c alls and he only talked to him in the bull pen.” The court said that defendant made those alleg ations and then later admitted t hat petiti oner nev er calle d his attor ney , say ing his a ttorney never g ave def

endant hi s phone num

ber. The trial cou rt weig hed defe ndant’s a llegat ions, in wh

ich he ad mitted to fabricating in part, aga

inst its knowledge of defense counsel’s perf ormance in the case, and concluded that the pro se motion was without me

rit. We fin

d that the trial cou rt prope rly consider ed defe ndant’s pro se

motion and made a decision based on its evaluations. Accordingly , the trial court properly dismissed this issue in defendant’s postconviction petition. Defend ant’s last argument on app eal is tha t the tria l court a bused its d

iscretion in sentencing defendant to 44 y ears’ imprisonment on his first degree murder c onviction. Defendant asserts that the trial court failed to give proper weight and consideration to the mitigating evidence presented a t his sentencing hearing. The State maintains that the trial c ourt did not abuse its discretion because defendant’s sentence is within the statutory limits and the trial court properly

considered the aggra

vating and mitigating factors in sentenc ing. “Although the legislature has presc ribed the permissible ranges of sentence s, great discretion still resides in the trial judge in each case to fashion a n appropriate sentence within the statutory limits.” People v. Fern , 189 I ll. 2d 48, 53 (1999). “ The tria l court must base its sentencing determination on the particular circ umstances of each case, considering such factors1-06-0768

28

as the de fendant's cre dibility, demean or, ge neral moral cha

racter , mentalit

y, s ocial en

vironmen t, habits, and age. Fern , 189 Ill. 2d at 53.” “The sentenc ing judge is to consider ‘all matters reflecting upon the defendant' s personality, propensities, purpose s, tendencies, and indeed every aspect of his life relevant to the sentencing pr oceeding.’ ” Fern , 189 Ill . 2d at 55, qu otin g People v Barrow , 133 Ill. 2d 226, 281 (1989). “I n reviewing a claim that a sentence within statutory limits is excessive, the court must consider whether, given the particular fa cts of the case, the sentenc e is gre atly

at varia nce with t he spirit a nd purpos e of the l aw or man ifestly disproportionate to the nature of the offense.” Fern ,189 I ll. 2d at 55 -56. Supr eme Court

Rule 615(b)(4) allows a reviewing cour t to reduce a sentence imposed by the trial court where the record discloses that the trial court abused its discretion. 134 Ill. 2d R. 615(b)(4). Under se ction 5-8 -1 of the Unified C ode of Cor

rection s, the sen

tencing range for firs t degree murder is 20 to 60 y ears’ imprisonment. 730 IL CS 5/5-8-1(a)(1)(a) (West 2000). Defend ant rec eived a s entence

of 44 y ears, w hich is wit

hin the sta

tutory range . The cr

ux of his argument is that the trial court did not consider the mitigating e vidence because he only

received a sentence that was two y ears less than his previous sentence. Defenda nt presented the live testimony of severa

l family members and f

riends as well as two expert witnesses and several affida vits. Mayra Ramos a

nd her children Kristian Tellado and Jessica Flores testified on defendant’s behalf. Tellado testified that he and de fendant are like “brothers.” Tellado a nd Flores met defendant when Tellado moved into the neig hborhood. Flores stated that defendant came by to help the

m move. Fl ores tes tified tha t she date d defend

ant for a while. F lores sa

id1-06-0768

29

that defendant asked her mother’s permission to date Flor es. Defendant spent a lot of time at the family’s house. Ramos said that def endant called her “Mom.” When defendant spent the nig ht at their house, defendant slept on the couch or in the boy s’ room. Tellado and defendant worked togethe r at Wrig ley

Field concession s. All of them descr ibed def endant a s respectful, esp ecially toward Ramos. Flores stated that defendant would help her ba bysit and would clean he

r house. Ramos said

that def endant tr eated he r childre n like bro thers an

d sisters. Flores would also help defendant baby sit his younger sibling s. She said he took care of his y ounger siblings and made sure they did not g et into trouble. Tellado and Flores described the neig hborhood as having a strong g ang presence. Tellado saw gang members “a

ll day, every

day.” Te llado and Flores did not know defendant was in a gang when they

first met. Tellado later asked defendant if he wa s in a gang. Tellado was surprised and disappointed because defendant wa s “outgoing” and had “a good spirit.” Tellado testifie d that def

endant w as not a ty

pical g ang mem

ber and he was not

proud of i

t. Tellad o said that defendant “knew it hurt him” and it “wasn’t who he wa s.” Defendant told Tellado he wanted to leave the gang , but he was afraid of being hurt throug h a violation. Flores a lso asked defenda nt if he wa s in a ga

ng afte r she saw a tattoo o f two initia

ls on his arm. She was very

surprised because defendant “didn’t ca rry himself as one .” Defendant did not spend time

with the g ang be cause he was with F lores. F lores an d defend ant also d iscussed his desire to leave the gang

and his fear of consequences. None of them ever saw defendant conduct gang business or bring a weapon into their home. Ramos stated that defendant came to her and told her about his g ang membership. She1-06-0768

30

said she was very

upset and lectured him. Defendant told her he wante d to leave the gang. Ramos help ed by

keeping him occup ied in the

house. Ra

mos descr

ibed def endant a s “respe ctful, “honorable,” and “would carry himself right.” Later, Tellado and his fa

mily moved to East Chicago, I ndiana, and they

invited defendant to move wit

h him. Def

endant di d not want

to leave his family . Tellado

stay ed behind to finish school an d lived wit

h defend ant for a few month s after T ellado’ s family left Chic ago. F lores sa

id that defendant would often visit her family in Indiana. Tellado stated that def endant was arrested within fiv e to seve

n months af

ter Tella do moved to

India na. Flor es testif ied that she continu

ed to visit defendant while he was in prison and she said he has matured and tha t he “knows now there is more to life to offer him and he can actually reach out and could have [taken] it.” Defendant’s mother, Aixa Martinez, also testified. She said that defendant’s biologica l father was abusive and he left when de fendant was two or three y ears old. Since then, she has been in a relationship with Michael Vera and she had two c hildren with Vera. Martinez testified that she is epileptic and that d

efenda nt often helped he

r after her seizu res by caring for his younge r siblings. She trusted defendant with his siblings because he wa s a responsible kid and she knew he could handle it. When Martinez found out that defendant was in a gang , they discussed it. She said he was not proud of being in a gang . It was hard for he r to cope with it because defendant was not like gang members, in that, he was re sponsible and helpful. She talked with defendant about leaving the gang, but he

was afraid of what might happen to his siblings and himself. Mar tinez helped defendant avoid the gang members by say

ing he was not at home when they came to look1-06-0768

31

for him. D efenda

nt wanted to leave the neig hborhood , but the f

amily could not a

fford it. Martinez said that defendant left the neighborhood twice. Once he went to Florida to live with Martinez’s mother, but he returned after a few months because he missed his family. L ater, defendant heard about the Lincoln’s Challenge program from Te llado, which defendant attended. Defendant earned his GED there. Ma rtinez said that it was defendant’s idea to attend the program. Martinez also said that nothing happened to her family either time def

endant left. Dorothy Papachr istos testif

ied as a gang expe

rt and she also had p ersonal

contact with defendant. Papachristos started a not-for-prof it agency called Community Dare to Car e, which aims to take kids out of gangs and reconne ct them with their families. One program the ag ency offers is a gy

m program in which kids in gangs or a t risk kids come in and play baske tball two evening s a week . She met de fendant through this prog ram. Papachristos also discussed the structure of the L atin Kings. She said that gang is very structured with a defined hierarchy with a cosinca and sinca at the top. The low members, foot soldiers, take instruction from higher-ranked membe rs. Papachr istos was i

mpresse d with def

endant be cause he

came to her, intro duced him self and shook her hand. Defendant seemed to be a peace maker. She said if a fig ht broke out at the gy m, defen dant woul d try

to help he

r calm it d

own. Papa

christos f ound def endant’ s behavior to be different than ty

pical gang members in the prog ram. She said that other gang members were “really aggr essive” and “tri ed to, y

ou know, c onduct g ang bus iness in fr ont of [her

].” Defe ndant, in contra st, never

behave d that way . She discu ssed def endant’ s desire

to leave the gan g with him, but he

was afr aid for h is family . Papach

ristos sai d that was

a reasonable fe ar. She a

lso1-06-0768

32

stated that defendant leaving to go to F lorida for a few months and his participation in L incoln’s Challeng e was not

sufficie nt to leav e the ga

ng. She t estified that def endant w as not suc cessful in leaving the gang be cause he was not “strong enoug h.” Papachristos also saw defendant outside of the gy m program. He befriended one of her foster sons and he spent time at her house. She said defendant a lways made it a point to clea n up after himself and to help in whatever way he could. Papachristos has visited defendant in prison and said that he has matured. He le ft the Latin Kings while in prison. She believed he could be rehabilitated. Papachristos admitted that she had not discussed the specifics of the offense with def endant, but reiterated that she thinks he can be rehabilitated. Dr. Ruben Gur testified that he is a neuropsy chologist. He offered expert testimony about how brain development impacts behavior. Dr. Gur discusses how par ts of the brain develop at different rates. According to Dr. Gur, the frontal lobe is responsible for integra ting “all the informat ion in rela

tion to the c ontext.” Whe n other pa rts of the brain re act to an

outside e vent, the frontal lobe will put that initial reaction into the context of the situation. A process called myelination occurs to enha nce brain function by

increasing the speed in which impulses travel throughout the brain. Dr. Gur said that babies have no my elin in their brains and as a result the signals for reaction dissipate and babies ca nnot control their responses. Mye lination occurs throughout all parts of the brain with the frontal lobe developing last. Dr. Gur t estified about sev eral stud

ies that ha

ve been conducte d to study

mye lination in the brai n. In the studie s, it was shown that my elination is not comp leted in the fronta l lobe until1-06-0768

33

the “third decade of life,” or around a ge 22. Dr. Gur stated that in adolescents the re sult is that they will act on impulse, but after the ir actions, they will be able to understand what was wrong about the ir action s. The fr ontal lobe is not able

to put the im

pulsive a ctions into

context fa st enough. Dr. Gu r admi tted t hat he never s tudi ed defe ndant ’s brai n. He s aid th at the se fin dings about bra in develo pment ar e gene rally accept ed in his f ield with “

very little disa greement, if any.” Dr . Gur said that with adolescents, they have a hard time changing their course of action because they are not a ble to unde

rstand th e full context and th e fronta l lobe is no t fully

able to provide that context. Dr. Gur stated that he gave a pre sentation on adolescent brain development before the Amer

ican Ba r Associa tion in Washi

ngton, D .C., and hi s opinion a t trial wa s the same as it was in the presentation. Additionally, defendant of fered affidavits from nine other family members and friends. These affidavits also described defenda nt as a respectful and polite teenage r and not a typica

l gang member. Defe

ndant tried to keep his young er brother and other friends from joining a gang. These family membe

rs and friends also stated that defendant wanted to lea ve the gang, but was afraid. Finally, defe

ndant gave the following statement of allocution. “My rea son for standing here today, You Honor, because I want to take this opportunity which I think, I wish I ha

d said a long time ag o. But honestly

didn’t ha ve the co urage to. To Mrs. Soberon, I told

you how sorr y I am for c ausing y

ou and y our famil y1-06-0768

34 so much pain through the y ears. I don’t want y

ou to think the one reason I ’m standin

g here pretend ing how I understa nd what it f

eels like to lose a child because I don’ t. I wish I had sorry wor

ds to say to you. But I

want you to know, I

didn’t mean for this to happen. And I know that

by me telling

you how sorr y I am isn’t e

nough to make you — not bring

your son back to y

ou. But I do hope from my words somehow play

a part in helping y

ou find a piece [ sic. ] within that you can lead be cause I am sorry . I’m so sorry for the trauma I gave y ou. I really am. I really am. I’d l ike to apo logize to

my f amily and frie nds, espe cially my daug hter. I’m sorry, Your Honor, to Mrs. Soberon, I am so sorry . I wanted to tell you I ’m sorry. Thank y ou.” The State did not present any live testimony at the sentencing hearing. The State offered a victim impact statement from Soberon’s mother and the presentence investigation. According to the presentence investigation, defenda nt’s only prior conviction was f or disorderly c onduct and he was fined $71. In ma king its r uling, the trial c ourt disc

ussed def endant’ s decision to join a g ang an d his decision to participate in the shooting death of Soberon. The court noted tha t defendant had supportive family and fr

iends, and yet he still chose to be in a gang. The court rec ognized that the mitigating evidence indicated that defe ndant wanted to leave, but feared repe rcussions.1-06-0768

35

However, the court considered it and found def endant did walk away

from the gang and nothing happene d to him. The

court sta ted that “ [t]here wa s no hard e vidence that he wa s in fear

for his life.” The court found that defendant did well in the structure d environment of Lincoln’s Challenge, but once outside of that environment he went bac k to the gang and committed murder. The court concluded that defendant was someone who needed to be in a structured environment for a long time. As for Dr. Gur’s testimony , the trial court found it to be “very fascinating,” but it had “very little value he

re” because the study

had nothing to do with defendant. The court noted that the testimony of defenda

nt’s friends and family

was that he was a mature and respec tful person, which “really

destroys any

far fetched argume

nt that he had a frontal lobe that wasn’t de ve lo pe d. ” T he co ur t a ls o f ou nd th at Pa pc hr is to s’ “t es ti mo ny w as n’ t v er y he lp fu l i n a ny w ay” other than the fact that defendant had a r elationship with her and followed her rules. After discussin g its thou ghts on the eviden

ce, the t rial cou rt senten ced def endant to a term of 44 years’ imprisonment. In People v. Brown , 243 Ill. App. 3d 170, 171 (1993), the defenda nt was charged with the first-degree murder in the shooting death of Stephen Anderson. One of the defendant’s codefendants, Eric L angham, sold a car to the victim’s brother, Jonathan Anderson, but they got into a dispute after the sale. La ngham asked Jonathan to meet him to discuss the problem. The victim and

two others came wi

th Jonathan

to meet Langha

m. La ngham g rabbed Jonathan by

his neck and put a gun aga

inst his head. Brown , 243 I ll. App. 3d at 171-72 . The vic tim bega n to approach when “gunfire

erupted from several different plac es.” Brown , 243 Ill. App. 3d at 172.1-06-0768

36

Multiple witnesses identified the defendant as one of the individuals seen firing a gun at the

scene. Brown , 243 Ill. App. 3d at 172. The defenda nt was sentenced to a 45-y ear term of imprisonment. Brown , 243 Ill. App. 3d at 173. On appeal, the re viewing court reduced the 45- year se ntence to 20 ye ars because the defendant wa s 20 years old at the time of the offense and lacked any

prior criminal history. The c ourt found that for these reasons the defendant’ s “rehabilitative potential was not adequately considered.” Brown , 243 Ill. App. 3d at 176. Similarly, in People v. Maldonado , 240 Ill. App. 3d 470, 473 (1992), the defenda nt was charg ed with the

first-de gree m

urder of Elizabeth

Cooley . Cooley

was a pa ssenge

r in a ca r with four others. As they

were driving, the car enc ountered Efrain Nunez, who was standing in the street. Nunez hit the roof of the car with his hand. The driver a nd two passengers got out of the

car. Maldonado , 240 Ill. App. 3d at 473. One of the passengers testified that Nunez ye lled something about the Latin King s and then two individuals came out and joined Nunez. Maldonado , 240 I ll. App. 3d at 473. Then, another car arrive d at the sc ene and

the occu pants joined the altercation on Nunez’s side. The defendant was identifie d as one of the occupants of the car. Maldonado , 240 Ill. App. 3d at 474. The defenda nt pulled out a gun and confronted one of the passengers of the car . The driver got back in the car a nd started to drive. Three to seven gunshots were heard by

various witnesses. According to witness testimony , the defendant was the only person with a g

un. Maldonado , 240 Ill. App. 3d at 474. The two passeng ers got back into the c ar at stop light an d they noticed Co oley

was blee ding. They

took her t

o a hospita

l, where she later died. Maldonado , 240 Ill. App. 3d at 474. The defenda nt was sentenced to the maximum term of 40 years. Maldonado , 240 Ill. App. 3d at 474.1-06-0768

37

The def endant a rgued on appea l that the t

rial cou rt abuse d its discr

etion in se

ntencing him to the statutory maximum. Maldonado , 240 I ll. App. 3d at 484. The defen

dant was 20 years old at the time of the offense, the father of two small children, e ngaged to the children' s mother, had completed three y

ears of high school, and had no prior felony convictions. Maldonado , 240 I ll. App. 3d at 484. The Maldonado court stated that “[a] sentence imposed for the offense of murder is as amenable to the scope of an appe llate court's power of reduction as a ny other offense” and then refere

nced several prior decisions in which a defe ndant’s sentence for murder was reduced on appeal. Maldonado , 240 Ill . App. 3d at 4 85, ci ting People v. Crews , 42 Ill. 2d 60, 66 (19 69) (af

ter noting that socie

ty is outrag ed by

the murde

r of a ch ild, the I llinois Supr

eme Court reversed the death penalty sentence and imposed a 20- to 35-y ear term of imprisonment on the defe ndant); People v. Wilkins , 36 I ll. App. 3d 761, 767 ( 1976) (the court r educed the pena lty imposed by the trial court whe re the defendant was 17 y ears old, had no prior criminal record, was atte nding hig h school, a

nd had the

possibility

of reha bilitation ); People v. Mitchell , 12 I ll. App. 3d 960, 968 (1973) (after acknowledging that the defendant's “shooting the gun into the crowd of people cannot be condoned,” the court reduced the defendant' s sentence where he was 20 years old

at the time

of the of fense a nd had a mi

nimal prior crimina

l recor d); People v. Adams , 8 Ill. App. 3d 8, 13-14 (1972) (the sentenc e of an 18-y ear-old defendant who had three prior misdemeanor convictions was reduced afte r the court expressly “r

ecognize[d] the heinous nature of the crime committed”). The review ing court then reduced the defe ndant’s sentence from 40 yea

rs to 20 years a

fter concluding that “the circumstance s revealed in this record do not justify the imposition of the maximum sentence allowed by statute.” Maldonado , 240 Ill. App.1-06-0768

38

3d at 486. Here, defendant was 18 y ears old at the time of the offense, had rec eived a GED, and had no prior felony c onvictions. Defendant presented extensive evidence in both live testimony and affidavits from family

members, friends, and experts discussing his rehabilitative potential. Defend ant was d escribe d as a re spectfu

l and polite

you ng man w ho made a

bad dec ision in joining a gang. Severa

l people disclosed defendant’s desire to leave the gang, but his fear of retribution from the gang ag ainst himself and his family kept him from leaving . Defendant offered the expert testimony of Papachristos to illustrate both defendant’s aty pical behavior for a gang member and the structur e and circumstances of Chicago gangs. Dr. Gur testified about gener ally accept ed studie s involving

the brai n development in ad

olescen ts. Defe ndant als o offered his own apologies to Soberon’s family . The trial court dismissed the testimony of Dr. Gur and found that Papachristos did not offer any thing helpful. While we acknowledge that the 44-y ear sentence imposed was within the sentencing ranged allowed and we ac knowledge the trial court’s assessment that “[t]his was a cold-blooded attack on innocent individuals riding in a car by self-admitted gang members who laid in the weeds waiting for their prey to attack them,” we find that the trial court did not fully consider the mitigating evidence presented a t defendant’s sentencing hearing , particularly in lig ht of defendant’s age and lac

k of any sig

nificant criminal background at the time of the murder

. Accordingly , under the authority of Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)( 4)), we reduce defenda nt's sen tence f or murde r from 44 ye ars to 36 y

ears. For the foregoing r

easons, the dismissal of counts I, I I, and I V of defendant’s1-06-0768

39

postconvi ction pet

ition is af firmed a nd defen dant’s se ntence i s reduce d to 36 y

ears. Affirmed as modified. GARCIA and R. GORDON, JJ., concur.